author: OTT, Judge.

text:
    STATE of Florida, Appellant, v. William E. BARNETT, Appellee.
    No. 77-417.
    District Court of Appeal of Florida, Second District.
    Jan. 20, 1978.

      Robert L. Shevin, Atty. Gen., Tallahassee and C. Marie King, Asst. Atty. Gen., Tampa, for appellant.
    Robert R. Hagaman of Schryver, Haga-man & Aaron Chartered, Naples, for appel-lee.
   OTT, Judge.

In this interlocutory appeal the state assails an order suppressing wiretap evidence. We reverse.

Defendant/appellee was indicted by the second statewide grand jury and charged herein with bookmaking and gambling. Evidence implicating appellee was obtained pursuant to a wiretap authorized by a circuit judge in Lee County. The application and order for such authorization named five individuals, not including appellee, one of whom was the listed owner of the telephone tapped. Appellee’s identity was ascertained through the ensuing monitoring of the tap.

The order suppressing this evidence and constituting the basis of this appeal was entered by a judge other than the authorizing judge. The order held that “the state failed to exhaust its investigative techniques, consequently the wiretap was ineffective as to persons not named in the application for wiretap.” We think this constituted error.

To begin with, the Florida wiretap law specifically contemplates that the communications of unnamed individuals may be intercepted. There must exist, however, probable cause to believe that someone is violating the law and he must be named if that name is known.

Additionally, there must be a showing that other reasonable investigative procedures have been tried and either have failed or reasonably appear likely to fail or be too dangerous. That is to say, that wiretap appears the most reasonable investigative technique under the circumstances to secure other and conclusive evidence of criminal involvement.

Each of these requirements was met here. There is no contention otherwise except that appellee urges that the exhaustion of other investigatory techniques related solely to the known and named individuals. Such techniques, it is argued, had they been employed as to the appellee would have revealed both the existence and identity of appellee and others similarly situate without resorting to interception of their communications. Given the right to intercept the communications of an individual, whether his name be known or not, evidence discovered against previously unknown individuals, whether they can be identified or not, is properly discovered and admissible. It is the burden of the unnamed individual to show that sufficient probable cause existed of his criminal involvement as to require that he be named or identified in the application and order for wiretap. No such showing was made here.

In sum, appellee complains that he was caught in a “dragnet” resulting from the wiretap. This may be so, but we see nothing in the law to prohibit it under the circumstances of this case. The application and order for the wiretap were orderly and proper. The agents of the state did nothing wrong. Appellee complains only that further employment of investigative techniques would have revealed his identity. Thus, he says, such techniques were not exhausted. It is not necessary, however, that all possible techniques, alternative to the wiretap, be exhausted. Moreover, with respect to such techniques, the act requires that they be reasonably exhausted only with respect to those individuals known (though perhaps their names are not known) to be criminally involved. That was the case here.

We find no merit in the other point raised on this appeal.

In view whereof the order appealed from should be and it is hereby reversed, and the cause is remanded for further proceedings not inconsistent herewith.

BOARDMAN, C. J., and RYDER, J., concur.

      . Section 934.01-10, Florida Statutes (1976).

      . Section 934.09(1)(b), Florida Statutes (1976).

      . Id.

        . See United States v. Kahn, 415 U.S. 143, 94 S.Ct. 977, 39 L.Ed.2d 225 (1974).

      . United States v. Lee, 542 F.2d 353 (6th Cir. 1976).

      . See United States v. Matya, 541 F.2d 741 (8th Cir. 1976).


source: Caselaw Access Project

author: DOWNEY, Judge.

license: Public Domain

text:
    FIDELITY AND DEPOSIT COMPANY OF MARYLAND, a Foreign Insurance Company, and Sanchez Corporation, a Florida Corporation, Appellants, v. ACCEL, INC., Appellee.
    No. 76-1660.
    District Court of Appeal of Florida, Fourth District.
    Jan. 24, 1978.

      Mark S. London of London & Backman, Hollywood, for appellant-Fidelity and Deposit Company of Maryland.
    Michael J. Garavaglia of Rosen, Rosen & Garavaglia, Miramar, for appellant-Sanchez Corporation.
    Sheldon R. Rosenthal, Miami, for appel-lee.
   DOWNEY, Judge.

Appellant Sanchez Corporation as general contractor contracted with the owner of real property to construct a building thereon. Sanchez also contracted with Accel, Inc. as a subcontractor to install elevators in the planned improvements. During the course of construction Accel, Inc. left the job and filed a claim of lien for the amount it claimed it was due from Sanchez. Shortly thereafter Sanchez had the lien removed from the realty and transferred to a bond pursuant to Section 713.24, Florida Statutes (1975). Appellant Fidelity and Deposit Company of Maryland is the surety on said bond.

Accel, Inc. filed this suit against Sanchez Corporation and Fidelity and Deposit Company. In its complaint Accel, Inc. claimed damages from Sanchez for breach of contract and claimed a lien against the realty for which it was entitled to judgment against Fidelity on the surety bond. The trial court entered judgment for Accel, Inc. and against Sanchez and Fidelity for $10,-637.20.

Both Fidelity and Sanchez have appealed from said judgment. Fidelity contends the judgment is erroneous because it found Ac-cel was entitled to a mechanic’s lien which in turn entitled Accel to recover on Fidelity’s bond. Sanchez perceives error in finding it guilty of breach of contract and awarding damages of $10,637.20.

The thrust of Fidelity’s assignment of error is that Accel, Inc. neither alleged nor proved that it had furnished the owner with the notice required by Section 713.06(2)(a), Florida Statutes (1975) and thus Fidelity was entitled to a dismissal of the complaint at the conclusion of the plaintiff’s case. Accel contends, on the other hand, that the bond which was furnished to relieve the property from the lien was furnished by Sanchez, not by the owner, and therefore, Accel was absolved from proving it had furnished the required notice to owner.

We reject Accel’s argument as lacking merit. The mere fact that some interested party transfers a lien from property to a bond pursuant to Section 713.24, Florida Statutes (1975) does not obviate the necessity of the lien claimant proving all of the prerequisites necessary for him to enforce his lien. On the contrary, even though the real property is no longer encumbered by the lien the claimant must prove all of the conditions precedent to the perfection and enforcement of that lien. McGuire v. Consolidated Electrical Supply, Inc., 329 So.2d 411 (Fla. 4th DCA 1976). Thus, if the lien claimant could not recover against the owner because of his failure to comply with the lien law he cannot recover against the surety on the bond. See Regal Wood Products, Inc. v. First Wisconsin National Bank of Milwaukee, 347 So.2d 643 (Fla. 4th DCA 1977); Resnick Developers South, Inc. v. Clerici, Inc., 340 So.2d 1194 (Fla. 4th DCA 1976).

In view of the foregoing the judgment against Fidelity on Accel’s lien claim was error.

In an effort to prove its claim against Sanchez for damages for breach of contract against Sanchez, Accel relied upon a showing that the contract provided for Sanchez to make installment payments at certain stages of the work. Accel attempted to prove the stage of completion and to claim the installments due under the contract for that stage of completion. This is not the proper measure of damages in an action for breach of contract. The rule has been frequently stated in this jurisdiction that the measure of damages in a suit by a contractor against an owner for breach of contract when the contract has not been fully completed is either quantum meruit or the contractor’s lost profit together with the reasonable cost of labor and materials incurred in good faith in the partial performance of the contract. Poinsettia Dairy Products, Inc. v. Wessel Co., 123 Fla. 120, 166 So. 306 (1936); First Atlantic Building Corporation v. Neubauer Construction Company, 352 So.2d 103 (Fla. Fourth District Court of Appeal opinion filed November 1, 1977); Marchese v. Taylor, 252 So.2d 820 (Fla. 4th DCA 1971); Ballard v. Krause, 248 So.2d 233 (Fla. 4th DCA 1971). This is also the proper measure of damages that a subcontractor must prove when suing a contractor. Since the wrong measure of damages was used in the trial court, Accel’s claim for damages against Sanchez for breach of contract must be retried.

Accordingly, the judgment appealed from is reversed and the cause is remanded with directions to grant a new trial on damages only on the claim of Accel, Inc. against Sanchez Corporation and to enter judgment for Fidelity and Deposit Company of Maryland on Accel, Inc.’s claim, based upon a mechanic’s lien.

REVERSED AND REMANDED.

ANSTEAD, J. and BERANEK, JOHN R., Associate Judge, concur.


author: ALDERMAN, Chief Judge.

text:
    Dwight HATFIELD, Appellant, v. Michael J. YORK, Appellee.
    No. 76-2127.
    District Court of Appeal of Florida, Fourth District.
    Jan. 24, 1978.

      Robert V. Romani of Farish & Farish, West Palm Beach, for appellant.
    Maureen McGill and Monroe A. Coogler, Jr., of Adams, Sullivan, Coogler & Watson, West Palm Beach, for appellee.
   ALDERMAN, Chief Judge.

In a three-count amended counterclaim appellant seeks damages for assault and battery, false arrest and malicious prosecution. The trial court dismissed with prejudice all three counts because appellant alleged that he pled guilty to assault and battery, resisting arrest without violence and indecent exposure, the same criminal charges which he alleged were maliciously instituted by the appellee. He attempts to avoid the effect of his previous pleas of guilty by alleging that the pleas were procured through fraud, perjury or other corrupt means, contending that the finder of fact should be allowed to weigh the guilty pleas as evidence in the case.

In civil actions where one of the issues is the guilt of a person convicted of a criminal offense, or some fact necessarily involved in the determination of such guilt, it is proper to admit evidence of that person’s plea of guilty to the criminal offense. The guilty plea is admissible as a declaration against interest and may be considered by the finder of fact, but it does not as a matter of law establish the truth of the facts upon which the judgment of guilt was rendered. Boshnack v. World Wide Rent-A-Car, Inc., 195 So.2d 216 (Fla.1967).

In the present case, counts one and two allege causes of action which are not vitiated by appellant’s admission that he pled guilty to certain criminal charges arising out of the same incident. In spite of appellant’s guilty pleas, he may still be able to present evidence from which a jury could find that he was the victim of an assault and battery and a false arrest.

A different situation exists, however, as to count three. An essential element of malicious prosecution is a bona fide termination of the original criminal charges in favor of the claimant. The original criminal charges in this case obviously were not terminated in appellant’s favor because he pled guilty. The deficiency is not cured by the allegation that these pleas were procured through fraud, perjury or other corrupt means.

We hold that the trial court erred in dismissing counts one and two for assault and battery and false arrest, but correctly dismissed count three for malicious prosecution.

AFFIRMED in part, REVERSED in part, and REMANDED.

DREW, E. HARRIS (Retired), and STET-TIN, HERBERT, Associate Judges, concur.


author: PER CURIAM.

text:
    Eino P. TALIKKA and Senja Talikka, his wife, Appellant, v. T. J. JARVINEN, Appellee.
    No. 76-2172.
    District Court of Appeal of Florida, Fourth District.
    Jan. 24, 1978.

      Philip H, Reid, Jr., Palm Beach, for appellant.
    Martin J. Sperry of Carey, Dwyer, Cole, Selwood & Bernard, Ft. Lauderdale, for appellee.
   PER CURIAM.

Affirmed. See Daurelle v. Beech Aircraft Corp., Fla.App., 341 So.2d 204 (Fla. 4th DCA 1976).

DOWNEY and DAUKSCH, JJ., and BURNSTEIN, Associate Judge, concur.


author: DAUKSCH, Judge.

text:
    Richard D. BIRS, Appellant, v. Gloria Grogan BIRS, Appellee.
    No. 76-2226.
    District Court of Appeal of Florida, Fourth District.
    Jan. 24, 1978.
    Harry G. Carratt of Morgan, Carratt & O’Connor, P. A., Fort Lauderdale, for appellant.
    Joseph DeGance of Jansen & DeGance, P. A., and Andrew J. Connolly, Fort Lauder-dale, for appellee.
   DAUKSCH, Judge.

Questioned on appeal is an award of the husband’s interest in the marital home to the wife as lump sum alimony. We find error and reverse.

These parties were married in 1973 after having lived together unmarried for approximately five years. While both have been employed it was brought out, alternatively, the wife was “too upset” to work, and did not intend to work until the dissolution proceedings were completed. There is no evidence she us unable to work. The dissolution was granted in 1976 and the wife was awarded, as lump sum alimony, the husband’s entire interest in the marital home worth a considerable amount of money. The wife also was awarded “rehabilitative periodic alimony” for six months. These periodic payments included the costs of maintaining the home: mortgage principal and interest, taxes, insurance, lawn care and pool care.

As might be imagined we have great difficulty reviewing an award which is based mostly upon matters of discretion. Here, as in most domestic matters, the trial judge aims to do what is right for all concerned within the rather nebulous guidelines established by stare decisis. To say the trial judge has abused the wide discretion with which he is entrusted is sometimes properly characterized as a substitution of judgment — which, of course, we cannot do. In this case, however, we find the evidence insufficient to support the award of lump sum alimony. This court in Gesford v. Gesford, 337 So.2d 1017 (Fla. 4th DCA 1976), said:

“. . . before the wife can be awarded the husband’s interest as a form of lump sum alimony there must be a positive showing of necessity on the part of the wife as well as the pecuniary ability of the husband to support that necessity.” at 1018.

Here, the wife was not shown unable to work. She has a one-half interest in the marital home worth over $30,000. She received $6,000 from the sale of the husband’s boat shortly before the dissolution and was to receive one half of a $2,400 tax refund owed the parties. With these funds and her interest in the home plus the rehabilitative alimony the wife is not indigent even though she may not have all she had under coverture. The award of the additional lump sum alimony being not supported by a clear showing of need constitutes an abuse of discretion so we must reverse that portion of the judgment.

However, because there is some indication the trial judge may have meant to award to the wife a special equity in some or all of the husband’s interest in the marital home on account of the wife having given some stock to the husband, we remand this matter for further consideration of that matter.

REVERSED in part and remanded.

DOWNEY and LETTS, JJ., concur.


author: ANSTEAD, Judge.

text:
    Margaret QUINN, Appellant, v. Kimberly Ann GORMAN, A. Morey, Ann Morey, and Travelers Indemnity Company, a Foreign Corporation doing business in Florida, Appellees.
    No. 76-2634.
    District Court of Appeal of Florida, Fourth District.
    Jan. 24, 1978.
    Robert J. McFann and Dale R. Sanders of Di Giulian, Spellacy, Bernstein, Lyons & Sanders, Fort Lauderdale, for appellant.
    George E. Bunnell and Thomas E. Scott, Jr. of Huebner, Shaw & Bunnell, P. A., Fort' Lauderdale, for appellee Travelers.
   ANSTEAD, Judge.

This is an appeal from a final summary judgment holding that a policy of insurance provided by the appellee, Travelers Indemnity Company, to its insured, Ann Morey, did not provide coverage for the insured’s liability under Section 322.09, Florida Statutes (1975), whereby the insured may be liable for her daughter’s negligence because of co-signing the minor daughter’s application for a driver’s license. We affirm.

The appellant, Margaret Quinn, was injured in an accident involving an automobile owned and operated by the appellee, Kimberly Ann Gorman. At the time of the accident Kimberly was not a resident of the household of her mother, Ann Morey. Travelers insured Mrs. Morey under a liability policy which by its terms covered Mrs. Morey and residents of her household for accidents involving anyone’s authorized use of Mrs. Morey’s automobile and Mrs. Mor-ey’s use of any automobile. There was no coverage provided in the policy for Mrs. Morey’s liability under Florida Statute 322.-09.

The appellant contends that public policy mandates that Section 322.09 be made a part of Travelers’ policy as a matter of law for otherwise there will be no insurance coverage in this case. The chief source for the expression of public policy is the legislature. However, we can find no legislative enactments which require that the insurance contract include this coverage. Absent such a legislative requirement the parties are free to contract as they please. The final summary judgment is hereby affirmed.

AFFIRMED.

DOWNEY and LETTS, JJ., concur.


text:
    Ansel BLANTON, Appellant, v. Dorothy BLANTON, Individually, United States Fidelity & Guaranty Company, a Foreign Corporation, licensed to do business in the State of Florida, Appellees.
    No. 76-2678.
    District Court of Appeal of Florida, Fourth District.
    Jan. 24, 1978.
    Kenneth B. Swinger of Swinger & Beaver, Fort Lauderdale, for appellant.
    William R. Hussey, Fort Lauderdale, for appellees.
   ANSTEAD, Judge.

The appellant, Ansel Blanton, brought an action against his wife, Dorothy Blanton, and her insurance carrier, United States Fidelity & Guaranty Company, for damages arising out of the wife’s alleged negligent operation of an automobile. The trial court dismissed the action under the doctrine of interspousal immunity. We affirm.

This court and the Florida Supreme Court have recently ruled that the doctrine of interspousal immunity will not bar an action by a third party against a claimant’s spouse under the uniform contribution among joint tortfeasors act. Shor v. Paoli, 353 So.2d 825 (Opinion filed November 17, 1977); Paoli v. Shor, 345 So.2d 789 (Fla. 4th DCA 1977). We held there at page 790:

To say that Shor doesn’t have to contribute and account for her wrongdoing would be unfair to Paoli and a windfall to Shor. This is not a case where the husband sued the wife on account of her negligence so we are not doing any real damage to the doctrine. This is a case where the joint tortfeasor sued the joint tortfeasor and we are ruling in support of that statute.

In Paoli we recognized the viability of the interspousal immunity doctrine. The Supreme Court, in approving our decision, apparently also recognized the continued existence of the doctrine. The doctrine is still alive and well in Florida, and it bars a direct tort action between spouses. The trial court was correct in dismissing the action, and the order of dismissal is hereby affirmed.

AFFIRMED.

DOWNEY and LETTS, JJ., concur.


author: PER CURIAM. DAUKSCH, Judge,

text:
    Marvin H. NEWKIRK, Petitioner, v. R. O. CROSBY and Stan Russ, Respondents.
    No. 77-1039.
    District Court of Appeal of Florida, Fourth District.
    Jan. 24, 1978.
    Stephen D. Converse and Robert J. Shapiro, Legal Intern, Belle Glade, for petitioner.
    Sidney C. Wood, West Palm Beach, and Sales & Christiansen, Palm Beach, for respondent Crosby.
   PER CURIAM.

The petition for writ of certiorari is denied. The petitioner has not demonstrated that the interlocutory discovery order complained of will cause him injury throughout the remainder of the proceeding or that there will be an inadequate remedy for any such injury by appeal after final judgment. Johnson v. General Motors Corp., 350 So.2d 1119 (4th DCA 1977). Brown v. Bridges, 327 So.2d 874 (Fla. 2d DCA 1976).

ALDERMAN, C. J., and ANSTEAD, J., concur.

DAUKSCH, J., dissents, with opinion.

DAUKSCH, Judge,

dissenting:

I must respectfully dissent. I would grant certiorari and quash the order denying the motion to compel.

Petitioner has alleged the Respondent Russ was an employee of Respondent Crosby and that Russ wrongfully evicted and assaulted Petitioner while acting as an employee of Crosby.

Crosby has denied much of the complaint and alleges his relationship with Russ is one of lessor-lessee not principal-agent. He says Russ’ actions are not to be imputed to Crosby because Russ merely subleased to Petitioner.

During the taking of Crosby’s deposition certain questions were asked which concerned; one, the relationship of Russ to Crosby; two, the ownership by Crosby of a particular pool hall; three, Crosby’s practices as to rent collection at other properties; and four, whether Crosby has agreements with others similar to the one with Russ.

The question on appeal is whether this interrogation seeks relevant or material evidence or could lead to the discovery of relevant or material evidence. My answer is yes and I feel the trial court departed, from the essential requirements of law when it refused to compel the answers.. Fla.R.Civ.P. 1.280. Murray Van and Storage, Inc. v. Murray, 343 So.2d 61 (Fla. 4th DCA 1977).


author: PEARSON, Judge.

text:
    FIFTY-SIX SIXTY COLLINS AVENUE CONDOMINIUM, INC., Appellant, v. Virginia J. DAWSON, Appellee.
    No. 76-2193.
    District Court of Appeal of Florida, Third District.
    Jan. 24, 1978.
    Rehearing Denied Feb. 17, 1978.

      Smith, Mandler, Smith, Werner & Jaco-bowitz, Miami Beach, and Steven R. Brown-stein, Miami, for appellant.
    Green & Kane, Miami Beach, Manners & Amoon and Harold Mendelow, Miami, for appellee.
    Before PEARSON, HENDRY and NATHAN, JJ.
   PEARSON, Judge.

The appellant, Fifty-Six Sixty Collins Avenue Condominium, Inc., was the plaintiff in an action seeking to enjoin a condominium owner from the use of shutters on a balcony area of her condominium. The appellant is a condominium association and the appellee is a condominium owner. After trial, the court entered its judgment for the defendant condominium owner but denied the condominium owner attorney’s fees sought pursuant to Section 711.62(1), Florida Statutes (1975). The condominium association has appealed the final judgment and the condominium owner has cross-appealed the denial of her claim for attorney’s fees, assigning as error the trial court’s post-judgment order denying her motion for a trial of the issue upon her claim for attorney’s fees.

The trial judge has given us the benefit of his findings of fact, which fully state the basis for the judgment. They are as follows:

“1. On January 4, 1973, Mr. Leonard Hornik, District Sales Manager of the Third-Party Defendant, demonstrated Rolladen shutters before the Board of Directors of FIFTY-SIX SIXTY COLLINS AVENUE CONDOMINIUM, INC., the Plaintiff. Pursuant to the request of Herbert Wertheimer, owner of Unit 3-E, the Board voted to approve such installations of Rolladen shutters on the terraces of the condominium, subject, however, to compliance with all applicable municipal provisions relating to such installations.
“2. On or about April, 1973, the Defendant had a conversation with Mrs. Pearl Rittenberg, expressing the Defendant’s intention to construct a balcony enclosure on the terrace of the Defendant’s condominium unit. At that time and at all times relevant hereafter, Mrs. Pearl Rittenberg was employed by the Plaintiff as Building Manager of the Condominium.
“3. During late March or early April, 1973, Defendant discussed the installation of shutters on her terrace with the said Leonard Hornik, and advised him that she would purchase the shutters provided that she had the right to install the shutters under the relevant documents governing the Condominium. Mr. Hornik advised the Defendant that on January 4, 1973, he had demonstrated his product before the Board of Directors of the Plaintiff and that the Board at that time had approved the installation of such shutters on terraces of the Condominium by a resolution adopted at that meeting. At or about the same time, Leonard Hor-nik spoke to Mrs. Pearl Rittenberg concerning obtaining specific written authorization for approval of his project by the Board of Directors.
“4. On April 9, 1973, Defendant executed a contract with the Third-Party Defendant for the installation of the shutters on her terrace which contract contained the legend ‘ROLLADEN MARK V P.V.C. SHUTTERS FURNISHED AND INSTALLED. MEETS SOUTH FLORIDA BUILDING CODE. ROLLADEN MARK V HAS BEEN ACCEPTED BY THE BOARD OF DIRECTORS OF THE 5660 BUILDING COMMITTEE.’
“5. On or about May, 1973, the installation of the shutters was commenced.
“6. On or about May, 1973, Plaintiff knew that installation of the shutters on the terrace of Defendant’s apartment had commenced.
“7. In early August, 1973, Plaintiff contacted the Third-Party Defendant and inquired as to the status of completion of the work engaged by the Defendant. The Third-Party Defendant replied to the Plaintiff by letter dated August 10, 1973, advising the Plaintiff as to the progress of the work. Plaintiff did not communicate any further response to that letter.
“8. Defendant relied upon the minutes of the meeting of the Board of Directors held January 4, 1973.
“9. Plaintiff knew or had reason to know that the Defendant would rely on said minutes.
“10. Considering all of the facts and circumstances, and the equities of the parties, Plaintiff is estopped to deny that Defendant had secured the requisite approval for the installation of her shutters or that she failed to comply with the provisions of the Declaration of Condominium.”

Appellant’s points on appeal do not challenge any specific finding of fact as unsupported by the record but rather urge that the facts are not sufficient to establish an estoppel against the appellant.

Our review of the record convinces us that the findings of fact are supported by the record. See Strawgate v. Turner, 339 So.2d 1112 (Fla.1976). The essential elements of estoppel appear from the conduct of the condominium association when the record is viewed in the light most favorable to the trial court’s determination. Cf. the point of law in Lungren v. Strawn, 151 Fla. 106, 9 So.2d 195 (1942). The essential elements of estoppel, as set out in Quality Shell Homes & Supply Company v. Roley, 186 So.2d 837 (Fla. 1st DCA 1966), are accepted by the appellant, but the appellant urges that some of the elements are not adequately shown by the record. We hold that the trial court’s findings of fact are adequate to show the elements of estoppel.

Appellant’s second point claims that the judgment should be reversed because it was shown that the condominium owner did not comply with municipal building codes by acquiring a building permit. While this fact is not established by the record, even if it were established, it would not affect the trial judge’s conclusion that the conduct of the condominium association created an es-toppel against its late and inconsistent attempt to bar appellee’s right to proceed.

In the cross-appeal, the section relied upon by the condominium owner in her claim that the trial court erred in not granting attorney’s fees is Section 711.62(1), Florida Statutes (1975), which is as follows:

“(1) Each unit owner and each association shall be governed by and shall comply with this law and the declaration and bylaws or cooperative documents as they may exist from time to time. Failure to do so shall entitle the association or any other unit owner to recover sums due for damages or obtain injunctive relief or both. Such actions may be maintained by or against a unit owner or the association or its directors or, in a proper case, by or against one or more unit owners, and the prevailing party shall be entitled to recover reasonable attorneys’ fees. Such relief shall not be exclusive of other remedies provided by law.”

Appellant urges that she could not properly proceed with her claim for attorney’s fees until it had been determined that she was the prevailing party. We decline to follow this interpretation of the statute which would require a second trial of the ancillary issue of attorney’s fees whenever allowable under this section. The final judgment entered shows that the trial court was asked to reserve jurisdiction to award reasonable attorney’s fees at the time the judgment was entered. Having concluded the trial, the court declined to do so and struck the provision for reservation of jurisdiction from the final judgment. The trial judge was within his discretion in refusing to set a further trial upon attorney’s fees after the cause had been concluded and he was within his discretion at the time of the final judgment in refusing to assess attorney’s fees where no evidence upon attorney’s fees had been presented. See Lyle v. Lyle, 167 So.2d 256 (Fla. 2d DCA 1964).

Having determined that no error appears upon the appeal from the final judgment or upon the cross-appeal, the final judgment and the post-judgment order denying defendant’s motion for attorney’s fees are affirmed.

Affirmed.


author: PER CURIAM. NATHAN, Judge,

text:
    Johnnie SAULS, Appellant, v. The STATE of Florida, Appellee.
    No. 76-2223.
    District Court of Appeal of Florida, Third District.
    Jan. 24, 1978.
    Norman Francis Haft, Miami, for appellant.
    Robert L. Shevin, Atty. Gen., and Joel D. Rosenblatt, Asst. Atty. Gen., and Paul Men-delson, Legal Intern, for appellee.
    Before PEARSON, BARKDULL and NATHAN, JJ.
   PER CURIAM.

A judge of the circuit court issued a Rule to Show Cause for Contempt to the appellant. The rule directed him to appear and show cause why he should not be held in contempt for failing to comply with a prior order of the court mandating the appellant to answer certain questions posed by the State Attorney’s office “truthfully and fully and without being evasive”. The court issued the rule based upon an affidavit, reading in part as follows:

* * * * * *
“3. JOHNNIE SAULS (sic) then stated he never went to 240 Northwest 17th Street, 765 Northwest 42nd Street, nor 8741 Northwest 21st Court on four consecutive Saturdays during the month of April, 1976; again JOHNNIE SAULS stated that if he had he would remember doing so.
“WHEREAS, in truth and in fact the said JOHNNIE SAULS did go to the above addresses on each and every Saturday during the month of April, 1976.” [emphasis added]
* * * * * *

A bench trial was conducted, at the end of which the appellant was found guilty of criminal contempt of court, adjudicated thereon, and sentenced to ninety (90) days in the County Jail.

From the foregoing judgment and sentence, the appellant now appeals. The only point urged for review is the sufficiency of the evidence to support the charge.

The charge of criminal contempt against the appellant emanated from certain questioning before the Dade County State Attorney’s office, preceding which the appellant was ordered by the trial court to “answer truthfully and fully and without being evasive all questions posed to him by the State Attorney’s office”. Defense counsel stipulated that the contents of Paragraph 3 of the affidavit correctly reflected the appellant’s response to the certain questioning. Thereafter, the State called two detectives who testified that they each observed the appellant entering and thereafter shortly departing two residences of the three identified in the affidavit. But neither of the State’s witnesses could testify that he observed the appellant in the 240 Northwest 17th Street address.

The appellant testified in his own defense, denying that he went to the 765 Northwest 42nd Street and 8741 Northwest 21st Court addresses on four consecutive dates in the month of April, 1976. The first State witness testified that he saw the appellant at 765 N.W. 42nd Street and 8741 N.W. 21st Court on four consecutive Saturdays in April, 1976. The next State witness corroborated this testimony as to three of the dates mentioned. Thus, the State introduced competent substantial evidence to prove that the appellant answered untruthfully and evasively when he stated that he never went to 765 N.W. 42nd Street and 8741 N.W. 21st Court on four consecutive Saturdays in April, 1976. See: Baumgartner v. Joughin, 105 Fla. 335, 141 So. 185 (1932); Cunningham v. State, 337 So.2d 993 (Fla. 4th DCA 1976); Diebert v. State, 199 So.2d 288 (Fla. 3d DCA 1967).

In general, a contemptuous act is “any act which is calculated to interfere with, hinder or obstruct the proper administration of justice”. Dodd v. State, 110 So.2d 22 (Fla. 3d DCA 1959), quoting from 6 FlaJur., Contempt, § 18. This court has consistently held that the giving of perjured testimony obstructs the proper administration of justice and, thus, is subject to a criminal contempt proceeding. See, e. g., Chavez-Rey v. Chavez-Rey, 213 So.2d 596 (Fla. 3d DCA 1968), cert. denied, 219 So.2d 700 (Fla.1968); Parham v. Kohler, 134 So.2d 274 (Fla. 3d DCA 1961). With specific applicability to the instant case, the rule is:

Testimony which is obviously false or evasive is equivalent to a refusal to testify and is punishable as contempt, assuming that a refusal to testify would be so punishable.

State v. Coleman, 138 Fla. 555, 189 So. 713 (Fla.1939); Brinson v. State, 269 So.2d 373 (Fla. 1st DCA 1972).

The appellant does not really contest the sufficiency of the evidence to sustain his conviction but, rather, claims that the State’s alleged failure to prove that he testified falsely or evasively when he denied going to 240 N.W. 17th Street, forbids a finding of contempt.

In Little Beaver Theatre Inc. v. State ex rel. Gerstein, 259 So.2d 217 (Fla. 3d DCA 1972), the defendant appealed his contempt conviction for failure to produce, pursuant to a prior court order, certain alleged obscene movie films at a hearing for temporary injunction. The court affirmed the conviction, holding that the evidence that at least one of the films was still being shown in theatres on dates films were to have been produced was sufficient to meet requirement of proof as to either civil or criminal contempt.

This court has already been presented with the issue raised by appellant, to wit: whether a contempt conviction should be affirmed when the evidence introduced by the State clearly shows that the appellant acted contemptuously even though every single facet of the charging instrument was not conclusively proven. In Little Beaver Theatre Inc. v. State ex rel. Gerstein, supra, this court held that under circumstances most similar to the instant case the contempt conviction should be affirmed.

The appellant’s reliance upon Phillips v. State, 147 So.2d 163 (Fla. 3d DCA 1962) is misplaced. Nowhere in the Phillips decision does this court allude to the issue involved in this appeal. Rather, this court reversed the defendant’s conviction for the following reasons: (1) the petition [affidavit] was un-sworn, (2) the accused was never charged with a specific act of criminal contempt, (3) which order of the court the accused had refused to obey was not specified, (4) no competent testimony or evidence upon which to base a conviction of contempt was produced at the hearing.

In the instant case, the first three requirements of Phillips were satisfied by the affidavit for Rule to Show Cause In Contempt, and there was substantial competent evidence, if believed by the trier of fact, upon which to base a conviction of contempt.

Therefore, the order of the contempt be and it is hereby affirmed.

Affirmed.

NATHAN, Judge,

dissenting.

I respectfully dissent. The. State having chosen to charge the defendant in a single paragraph with stating that he never went to the three addresses on four consecutive Saturdays during the month of April, 1976, and each element of this charge not having been proved, I find that the probata did not meet the allegata. Therefore, I would reverse the order of contempt.

      . Since the defendant was given immunity in the case at bar he would have been punishable by criminal contempt if he had refused to testify. McDonald v. State, 321 So.2d 453 (Fla. 4th DCA 1975).


text:
    Leon BUTLER, Appellant, v. The STATE of Florida, Appellee.
    No. 77-256.
    District Court of Appeal of Florida, Third District.
    Jan. 24, 1978.
    Rehearing Denied Feb. 17, 1978.
    Bennett H. Brummer, Public Defender and Karen M. Gottlieb, Asst. Public Defender, for appellant.
    Robert L. Shevin, Atty. Gen. and Margarita Esquiroz, Asst. Atty. Gen., for appellee.
    Before HAVERFIELD, C. J., and HEN-DRY and KEHOE, JJ.
   PER CURIAM.

The sole question presented in this appeal is whether the evidence as to the value of the items taken from the victim’s home was sufficient to sustain the conviction of defendant-appellant, Leon Butler, for grand larceny.

Proof of the element of value is essential for a conviction for grand larceny and with respect to this element, the proper measure is the fair market value of the stolen item(s) at the time of the theft. Negron v. State, 306 So.2d 104 (Fla.1974). It is entirely permissible to use the owner or victim to establish the market value. See Kinsey v. State, 237 So.2d 808 (Fla.3d DCA 1970); Singleton v. State, 258 So.2d 313 (Fla.2d DCA 1972); Platt v. State, 291 So.2d 96 (Fla.2d DCA 1974); Vickers v. State, 303 So.2d 700 (Fla.1st DCA 1974); Beasley v. State, 305 So.2d 285 (Fla.3d DCA 1974). Upon being questioned by the prosecutor, the owner in the instant case testified that the fair market value of the items stolen was $700 or $800. Thus, the evidence of market value was sufficient to sustain defendant’s conviction for grand larceny.

Affirmed.


text:
    Jeffrey WARD, Appellant, v. The STATE of Florida, Appellee.
    No. 77-389.
    District Court of Appeal of Florida, Third District.
    Jan. 24, 1978.
    Rehearing Denied Feb. 17, 1978.

      Philip Carlton, Jr. and Thomas A. Wills, Miami, for appellant.
    Robert L. Shevin, Atty. Gen. and Margarita Esquiroz, Asst. Atty. Gen., for appellee.
    Before PEARSON, BARKDULL and NATHAN, JJ.
   PER CURIAM.

The appellant, Jeffrey Ward, is an attorney. He appeals a judgment of the trial court finding him guilty of direct contempt of court “for pursuing a line of questioning ordered inadmissible by the court.” He was sentenced to pay a fine of $100.00 and to write “I will not disobey the direct order of a judge” one thousand times. On this appeal, it is urged that the evidence is insufficient to sustain a finding of direct criminal contempt and that so much of the sentence as provides for punishment other than the fine is an abuse of discretion. We affirm the judgment but reverse that portion of the sentence which is appealed.

The record sustains the position of the State that in spite of the trial court’s directive to the contrary, Mr. Ward as an attorney for a defendant in a criminal case, insisted on questioning prospective jurors on a subject the court had previously held to be improper during voir dire examination. At the contempt hearing, Mr. Ward did not deny the factual occurrences but insisted that his motive was proper and that he was not intentionally contemptuous of the court.

A disclaimer of intent to be contemptuous is not sufficient to deprive the court of the power to punish contempt. See Cormack v. Coleman, 120 Fla. 1, 161 So. 844 (1935); and Wilson v. Joughin, 105 Fla. 353, 141 So. 182 (1932). The orderly conduct of a trial requires that a defendant and his attorney obey the rulings of the trial judge and appeal those rulings which are objectionable. A refusal to obey the rulings of the trial judge on the ground that the ruling is improper may result in the inability of the courts to administer justice.

The appellant further urges that the record does not support the trial court’s finding that he intended to transgress the court’s order. A determination of the facts and inferences to be drawn therefrom is necessarily left to the trial judge. See State ex rel. Giblin v. Sullivan, 157 Fla. 496, 26 So.2d 509 (1946). Such findings will not be set aside when reasonably supported by the facts appearing in the record. See the principle of law in Paul’s Drugs, Inc. v. Southern Bell Tel. & Tel. Co., 175 So.2d 203 (Fla.3d DCA 1965). The record before us amply supports the finding of the trial judge that Mr. Ward’s determination to proceed as he thought proper was undertaken despite the trial judge’s admonition. The judgment will be affirmed.

So much of the sentence as provides for punishment other than the fine is improper in this case. If contrived to instill contriteness, it is unnecessary; if for any other purpose, it is an abuse of discretion. See State ex rel. Saunders v. Boyer, 166 So.2d 694 (Fla.2d DCA 1964).

Accordingly, the judgment is affirmed and the sentence is amended by striking the punishment other than the fine, which is affirmed.

Affirmed in part; reversed in part.


text:
    Ruben Ernesto YANCO, Appellant, v. ROYAL TRUST BANK OF MIAMI, N.A., a National Banking Association organized under the laws of the United States, formerly known as the International Bank of Miami, N.A., Appellee.
    No. 77-1140.
    District Court of Appeal of Florida, Third District.
    Jan. 24, 1978.
    Rehearing Denied Feb. 13, 1978.

      Shapiro, Fried, Weil & Scheer and Richard Daar, Miami Beach, for appellant.
    Pallot, Stern, Proby & Adkins and Mary Pollack, Miami, for appellee.
    Before HUBBART and KEHOE, JJ., and CHARLES CARROLL (Ret.), Associate Judge.
   PER CURIAM.

Affirmed. See Jett v. Lewis State Bank, 277 So.2d 37 (Fla.1st DCA 1973). See generally Strate v. Strate, 328 So.2d 29 (Fla.3d DCA 1976); Biscayne Manufacturing Corp. v. Sandav Corp., 323 So.2d 315 (Fla.3d DCA 1975); Fernandez v. Arocha, 308 So.2d 45 (Fla.3d DCA 1975); and Global Aero Service, Inc. v. Lloyd Aereo Boliviano, S.A., 157 So.2d 708 (Fla.3d DCA 1963).


text:
    CITY OF BOCA RATON, a municipality of the State of Florida, Appellant, v. Arthur L. WALKER and Rhonda Walker, his wife, Appellees.
    No. 77-1534.
    District Court of Appeal of Florida, Third District.
    Jan. 24, 1978.
    Jones, Paine & Foster, Sidney A. Stubbs, Jr., and Margaret Cooper, West Palm Beach, for appellant.
    Brumer, Moss, Cohen & Rodgers and Burt E. Redlus, Miami, for appellees.
    Before PEARSON, BARKDULL and NATHAN, JJ.
   PER CURIAM.

The City of Boca Raton was sued in Dade County for the tort of false arrest. A motion to transfer the cause to Palm Beach County was made and denied. This interlocutory appeal is from that order. We reverse upon authority of Carlile v. Game and Fresh Water Fish Commission, 354 So.2d 362 (Fla.1977), wherein the Supreme Court held that absent expressed exceptions, when a tort action is brought against the state or one of its agencies, the action must be brought in the county wherein the agency maintains its principal headquarters.

The appellee concedes the existence of this rule but urges that this case should be an exception because in this instance it is alleged that the false arrest was a joint tort with the other defendants, i. e., Dade County and Food Fair Stores, Inc., and that the tort was committed in Dade County as well as in Palm Beach County. We find no room in the Supreme Court’s decision for the carving of such an exception and, accordingly, the order appealed is reversed and the cause is remanded with directions to transfer the cause against the City of Boca Raton to the Fifteenth Judicial Circuit.

Reversed and remanded.

      . We note that the cited opinion was not available to the trial judge at the time of his ruling.


author: ERVIN, Judge.

text:
    Norris EPPS a/k/a Goldie, Appellant, v. STATE of Florida, Appellee.
    No. EE-264.
    District Court of Appeal of Florida, First District.
    Jan. 25, 1978.
    Rehearing Denied Feb. 17, 1978.

      Stephen P. Smith, III of Folsom & Smith, Jacksonville, for appellant.
    Robert L. Shevin, Atty. Gen., Wallace E. Allbritton, Asst. Atty. Gen., for appellee.
   ERVIN, Judge.

Epps appeals two consecutive ten year sentences imposed for conspiracy to commit a felony, i. e., the sale of heroin. Epps’ argument that the state failed to establish the existence of two separate conspiracies as alleged in counts one and two of the amended information has merit and requires reversal of one of the two sentences imposed. The first count of the amended information charged that Epps, together with Eddie E. Rosemond and Constance Thomas Wilcox, between July 19, 1975 and July 22, 1975 conspired to commit a felony, i. e., sell heroin. The second count charges Epps and Wilcox, between August 6, 1975 and August 24, 1975, with conspiring to commit the same offense. Pursuant to successive orders authorizing the interceptions of communications on a telephone owned by Phyllis Hicks, three interceptions occurred between July 19, and July 22,1975, and five interceptions between August 6 and August 24, 1975.

The intercepted communications supporting both counts related to transactions for the sale of separate quantities of heroin. Nevertheless, the evidence shows only one general conspiracy was involved. It is clear from the testimony of co-conspirator Wilcox that the arrangements for the acquiring and selling of heroin lasted much longer than the months of July and August, 1975, the dates involved in the two counts. It was necessary for the state to prove more than there was simply a gap in the intercepted communications between July 22, 1975 and August 6, 1975 to establish the termination of one conspiracy and the commencement of the other.

The general rule is the termination of a conspiracy depends upon the particular facts of each case and that a continuing conspiracy exists “until consummated, abandoned, or otherwise terminated by some affirmative fact.” 15A C.J.S. Conspiracy § 35(2) (1967). For example, a defendant’s contention that separate conspiracies were involved, so that statements of co-conspirators of conspiracies which he claimed not to be a member could not be introduced into evidence against him, was rejected, the court concluding from the facts that a general conspiracy was involved. United States v. Bastone, 526 F.2d 971 (7th Cir. 1975), cert. den., 425 U.S. 973, 96 S.Ct. 2172, 48 L.Ed.2d 797 (1976). Similarly, a defendant’s claim was rejected that he could not be convicted of conspiracy to commit kidnapping because his only participation in the offense showed that he had only been involved in exchanging ransom money following a kidnapping. The court held that the conspiracy was continuous and did not terminate until the ransom proceeds were exchanged. McDonald v. United States, 89 F.2d 128 (8th Cir. 1937), cert. den., 301 U.S. 697, 57 S.Ct. 925, 81 L.Ed. 1352 (1937). Moreover when a plot contemplates a result which cannot continue without the continuous cooperation of conspirators, and there is such continuous cooperation, the conspiracy is one, not several. United States v. Kissel, 218 U.S. 601, 31 S.Ct. 124, 54 L.Ed. 1168 (1910).

Even though the evidence reveals sales of different drugs, such fact is unimportant. A single conspiracy may have for its object the violation of two or more criminal laws or two or more substantive offenses. The conspiracy is still one offense, no matter how many repeated violations of the law may have been the object of the conspiracy. Brown v. State, 130 Fla. 479, 178 So. 153 (1938). The evidence in this cause failed to establish the termination of one conspiracy and the commencement of a separate conspiracy. Epps may not be placed again in jeopardy for the offense of the same criminal conspiracy. Brown v. State, supra, 178 So. at 156.

We . have considered Epps’ remaining points and find them without merit. His second consecutive sentence is REVERSED.

MILLS, Acting C. J., and SMITH, J., concur.


author: SCHEB, Judge.

text:
    Howard A. HAMPTON, Appellant, v. STATE of Florida, Appellee.
    No. 77-1197.
    District Court of Appeal of Florida, Second District.
    Jan. 25, 1978.
    Rehearing Denied Feb. 16, 1978.
    Jack 0. Johnson, Public Defender, W. C. McLain, Asst. Public Defender, and Ken Glover, Research Asst., Bartow, for appellant.
    Robert L. Shevin, Atty. Gen., Tallahassee, and Charles Corees, Jr., Asst. Atty. Gen., Tampa, for appellee.
   SCHEB, Judge.

Appellant contends the trial court erred in refusing to hear proffered testimony from police witnesses at a hearing on his motion to suppress his confession. We agree.

The state’s information charged appellant with the robbery of Tony Lee. Appellant moved to suppress the confession he gave to police officers concerning this offense. At the hearing counsel for the state and counsel for appellant stipulated that the trial court could consider testimony of two police officers in a prior suppression hearing in another case, where the state had also charged appellant with robbery. After reviewing the record of the prior hearing, counsel for appellant asked the court to allow two police officers — apparently the same ones who had appeared in the other hearing — to testify. Counsel represented to the court that the officers had procured appellant’s confession with the inducement that if he talked to them about the robberies, the state would drop an unrelated criminal charge against him. At this point the trial judge said that he found no need for the officers to testify and denied appellant’s motion to suppress. Appellant then entered a plea of nolo contendere reserving the right to appeal the denial of his motion.

The trial court should have heard the testimony of the two officers upon request by appellant. The burden of proving that a confession has been freely and voluntarily given rests upon the state. Reddish v. State, 167 So.2d 858 (Fla.1964). The trial court must consider the “totality of circumstances” surrounding a confession, and since the proffered testimony would have gone to the issue of voluntariness we believe the trial court should have considered it. Williams v. State, 188 So.2d 320 (Fla. 2d DCA 1966).

The failure of the trial court to consider the officers’ testimony, however, does not require that we vacate the judgment and sentence at this time. See Smith v. State, 353 So.2d 205 (Fla. 2d DCA, filed Dec. 21, 1977). Instead we temporarily relinquish jurisdiction of this cause to the trial court for 45 days from the date this opinion becomes final. Within the first 30 days of this period the trial court shall hold a hearing to consider the testimony of the two officers as well as the stipulated testimony relevant to the issue of voluntariness of appellant’s confession, and enter an order stating its findings and ruling on appellant’s motion to suppress. Appellant shall within the remaining period furnish this court a transcript of the hearing and a certified copy of the court’s order. Thereafter, we will give further consideration to the questions raised by this appeal.

RYDER and DANAHY, JJ., concur.

      . The court may also wish to reconsider the correctness of having sentenced appellant to imprisonment at “hard labor” in view of our decision in Brooks v. State, 349 So.2d 794 (Fla. 2d DCA 1977), and the numerous other decisions from this court on that point.


author: MILLS, Judge.

text:
    Jerry Thomas GRACE, Appellant, v. STATE of Florida, Appellee.
    No. GG-53.
    District Court of Appeal of Florida, First District.
    Jan. 26, 1978.
    Michael J. Minerva, Public Defender, Margaret Good, Asst. Public Defender, for appellant.
    Robert L. Shevin, Atty. Gen., A. S. Johnston, Asst. Atty. Gen., for appellee.
   MILLS, Judge.

Grace seeks review of the trial court’s order denying his motion for discharge under the speedy trial rule. He contends that the 180-day rule applies to his case and that he was continuously available for trial during that time. The State contends that the one year rule applies because Grace was imprisoned in another county jail awaiting trial on another charge while charged by information in this case.

On 10 June 1976, Grace was charged with breaking and entering with the intent to commit larceny in Okaloosa County. He pled not guilty. His trial was set for 11 August and he was released on bond. He did not appear for the trial. His bond was estreated and a capias was issued.

On 10 August, Grace was taken into custody in Alabama on a warrant charging him with second degree murder in Walton County. He was imprisoned in Walton County. On 11 September, he escaped for about four hours. Subsequently, the Walton County grand jury indicted him for first degree murder for the same act for which he had been charged with second degree murder. While the Walton County Jail was remodeled, he was transferred to the Santa Rosa County Jail.

Grace was not returned to the Okaloosa County Jail until March 1977. His trial was set for 13 April. He moved for discharge under the 180-day speedy trial rule. His motion was denied and he pled nolo conten-dere reserving the right to appeal the denial of his motion.

Grace was not in custody of Okaloosa County from June 1976 to March 1977. He was at liberty on bond from June to August 1976. He was imprisoned at the Walton County Jail from August 1976 to March 1977 on a charge of second degree murder which was subsequently changed to a charge of first degree murder. These charges were unrelated to the charge made in Okaloosa County.

Grace contends that he was continuously available for trial in Okaloosa County from 12 September 1976 to 13 April 1977 because he was imprisoned in Walton County which is in the same judicial circuit as Okaloosa County, thus more than 180 days have passed which require his discharge under Fla.R.Crim.P. 3.191(aXl). We do not agree.

Grace was imprisoned in Walton County on a charge of second degree murder later changed to a charge of first degree murder committed in Walton County. Walton County did not have custody of Grace on the charge of breaking and entering with the intent to commit larceny committed in Okaloosa County. Okaloosa County did not take custody of Grace on this latter charge until March 1977.

While imprisoned in the Walton County Jail on another charge, Grace was not continuously available for trial on the Okaloosa County charge, therefore Rule 3.191(a)(2) is not applicable. State v. Featherston, 267 So.2d 851 (Fla. 3d DCA 1972).

Although Walton County is in the same judicial circuit as Okaloosa County, we are not aware of any law that would require Walton County, who is holding a defendant for trial on a charge committed there, to deliver or release the defendant to Okaloosa County for trial on a charge committed there.

Fla.R.Crim.P. 3.191(b)(1) applies to this case. It provides that a person who is imprisoned in a penal institution of a subdivision of this State and who is charged by information, whether or not a detainer has been filed, shall without demand be brought to trial within one year, if the crime charged be a felony not involving violence.

Grace was imprisoned in the Walton County Jail while under a charge in Okaloo-sa- County. He did not demand trial. He was charged with a felony not involving violence. The State had one year to bring him to trial. This it was prepared to do when this appeal was taken. The trial court properly denied the motion to discharge.

We affirm the judgment.

McCORD, C. J., and BOYER, J., concur.


author: BOOTH, Judge.

text:
    WOOD-HOPKINS CONTRACTING COMPANY, Appellant, v. ROGER J. AU & SON, INC., Appellee. JACKSONVILLE ELECTRIC AUTHORITY, Appellant, v. ROGER J. AU & SON, INC., Appellee.
    Nos. II-146, II-153, II-151 and II-152.
    District Court of Appeal of Florida, First District.
    Jan. 26, 1978.
    Rehearing Denied Feb. 16, 1978.
    William Lee Allen, Asst. Gen. Counsel, Jacksonville, for appellant Jacksonville Elec. Authority.
    A. Graham Allen, Jacksonville, for appellant Wood-Hopkins Contracting Co.
    ° Charles T. Boyd, Jr., Jacksonville, for ap-pellee Roger J. Au & Son, Inc.
   BOOTH, Judge.

These consolidated cases are before the Court on appeal from final judgments entered in the Circuit Court, Duval County. At issue is the bidding for, and award of, the contract for construction of a thermal discharge unit at the Jacksonville Northside Generating Station. The judgments sought to be reviewed enjoin the Jacksonville Electric Authority (JEA) from awarding the contract to Wood-Hopkins Construction Company, Jacksonville, Florida (Wood-Hopkins) and mandate the award of the contract to Roger J. Au & Son, Inc., Mansfield, Ohio (Au).

The questions here are whether the trial court’s holding that JEA’s actions were arbitrary, capricious and unreasonable is supported by the evidence and whether, based on the evidence presented, the court could require that the contract be awarded to Roger J. Au & Son, as the lowest responsible bidder.

The JEA is a body politic and corporate organized under Chapter 67-1569, Laws of Florida, as amended by Chapter 77-579, Laws of Florida Section 10 of Chapter 77-579 provides in pertinent part as follows:

“All construction . . . where the entire costs . . . shall exceed $4,000 . shall be done only under contract or contracts to be entered into by the authority with the lowest responsible bidder . . . The authority shall keep a current list of responsible bidders and whenever there shall be an award of contract, the bidder must come from this list.” (e.s.)

Prior to this litigation, JEA was notified by the United States Environmental Protection Agency that it must cease discharging waters used to cool its Northside Generating Plant into the San Carlos Creek. To meet these environmental requirements JEA adopted a plan designed and recommended by its consulting engineers, Reynolds, Smith & Hills, which called for the use of 3,000 feet of specially fabricated reinforced fiberglass pipe having diameters of more than sixteen feet. The unique pipe required has never been manufactured before. The JEA approved and pre-qualified two manufacturers to design and supply this pipe: CorBan Industries and Wolf Ridge Plastics.

All general contractors bidding on the project were required to use either CorBan or Wolf Ridge as their designated supplier, and to furnish with their bid the design data of the pipe supplier.

The JEA pre-qualified sixteen contractors to bid on the project, including Appel-lee Au and Appellant Wood-Hopkins. Nine of those pre-qualified submitted bids on September 14, 1977. The bid of Au was $11,650,000, some $38,000 less than the next lowest bid which was submitted by Wood-Hopkins.

The Au bid also committed the bidder to a completion date 32 days sooner than the next lowest bidder, an important consideration in view of the potential penalty of $25,000 per day for each day the JEA operates the plant after December 31, 1978, without the thermal discharge unit.

Subsequent analysis of the two bids by JEA’s staff and consultant engineers showed discrepancies in the pipe design data attached to the two low bids. The design data attached to Au’s bid had been supplied by Wolf Ridge Plastics; Wood-Hopkins’ design data had been supplied by CorBan. Detailed design calculations were then furnished by both pipe suppliers to the JEA’s consulting engineers. The pipe design proposed by Au’s supplier, Wolf Ridge, was determined to deviate substantially from specifications. The proposed design attached to the Wood-Hopkins bid also deviated, but this deviation was found by the staff and consultants to be one of judgment or “interpretation.”

Au’s supplier, Wolf Ridge, stood by its commitment to meet specifications for the same price quoted to the general contractor and proposed to modify its design in accordance with the requirements of JEA’s con-suiting engineers, primarily by adding fiberglass material along one-third of the pipe at no additional cost to the general contractor, Au, or the JEA.

The JEA consultants and staff and the City Purchasing Department recommended, however, that the Au bid be rejected and that the contract be awarded to Wood-Hopkins. The grounds for rejection of the Au bid were: (1) Error in the pipe design data furnished by Wolf Ridge and (2) Failure of Au to be a certificate holder under Florida Statutes, Chapter 468.

Au sought injunctive relief against the threatened action of JEA to award the contract to Wood-Hopkins. A temporary injunction was entered and the cause came on for hearing on the permanent injunction on November 4, 1977. After a day-long hearing of testimony, the trial court entered its order granting a permanent injunction against the award of the contract to Wood-Hopkins. After this action by the court, and on the same day, the JEA held a meeting and voted to reject all bids and to rebid the project.

On November 17, 1977, Au filed its petition for writ of mandamus and the alternative writ issued. On November 29, 1977, a hearing was held and thereafter the trial court entered its final judgment of mandamus requiring that the JEA award the contract to Au.

Appellants’ contention that the trial court acted prematurely in entering its order enjoining JEA from awarding the contract to Wood-Hopkins raises the question of the point in time at which arbitrary or unlawful action of a governmental entity is sufficiently imminent or threatened to allow intervention by a court of equity.

There is authority that one seeking injunctive relief in a bidding controversy must act before the public entity votes to accept a bid. At that point, or at the latest on the bidder’s notification of the acceptance vote, a contractual relationship arises between the entity and the accepted bidder, even though a formal contract has not been executed. The rejected bidder may then be limited to his remedy at law for damages. Dedmond v. Escambia County, 244 So.2d 758 (1st DCA 1971); Berry v. Okaloosa County, 334 So.2d 349 (1st DCA 1976); 26 Fla Jur, Public Works and Contracts, § 21; See, William A. Berbusse v. North Broward Hospital District, 117 So.2d 550 (2nd DCA 1960). Therefore, the trial court was correct in taking action to preserve the status quo and secure the rights of the parties to equitable relief.

In any event, appellants cannot now be heard to complain that formal action had not been taken on the bids at the time of the first order, since the JEA elected to take formal action on the bids before seeking review of the trial court’s injunction order.

The basic principles of the competitive bidding system are stated in Hotel China & Glassware Company v. Board of Public Instruction, 130 So.2d 78, 81 (1st DCA 1961), in part as follows:

“Competitive bidding statutes are enacted for the protection of the public. They create a system by which goods or services required by public authorities may be acquired at the lowest possible cost. The system confers upon both the contractor and the public authority reciprocal benefits, and exacts from each of them reciprocal obligations. The bidder is assured fair consideration of his offer, and is guaranteed the contract if his is the lowest and best bid received. The principal benefit flowing to the public authority is the opportunity of purchasing the goods and services required by it at the best price obtainable. Under this system, the public authority may not arbitrarily or capriciously discriminate between bidders, or make the award on the basis of personal preference.” (e.s.)

In the instant case, the trial court found, after hearing all of the evidence, that JEA’s staff and consultants acted arbitrarily, unreasonably, and capriciously in recommending the rejection of Au’s bid and the award to Wood-Hopkins, and that JEA’s reliance on the reasoning of its staff and consultants as a basis for rejecting all bids was likewise arbitrary and unreasonable.

The determination of the trial court in these matters comes to this Court with a presumption of correctness, and will not be lightly set aside. We have reviewed the record and find that it supports the trial court’s holding.

The evidence adduced at the hearings established the practice and custom in the industry in bidding on a project such as this and what was contemplated by the bid documents. That evidence is contrary to Appellants’ position that the necessity for pipe design modifications disqualified a bid. The testimony was that design changes would be contemplated and that it would be “very unusual” if the initial set of design data were accepted by the owner’s consulting engineer. Testimony also established that the design of large reinforced fiberglass pipe is a highly technical and specialized field. General contractors did not have the expertise to check pipe design data for conformity to specification. It was for this reason that JEA pre-qualified two pipe suppliers whose design data and shop drawings were to be submitted with the bid so that JEA’s consulting engineers could review the proposed design and require any necessary changes. It was uncontradicted that the supplier in this case is bound, as indeed the supplier itself so states, to furnish pipe meeting the specifications at the cost originally submitted, regardless of additional cost to the supplier of changes required.

In the instant case, no question is raised by Appellants as to the responsibility, integrity and capability of either Au or its designated pipe supplier, Wolf Ridge. Both were pre-qualified by JEA as “responsible.” Further, counsel stipulated at the hearing to Au’s experience and qualifications.

The trial court ruled that the JEA’s pre-qualification of Au, plus the express exemption of Florida Statute § 468.114, made registration requirements inapplicable.

The record clearly supports the holding of the able trial court that Au is the lowest responsible bidder on the project and that the JEA could not reasonably reject Au’s bid.

In City of Pensacola v. Kirby, 47 So.2d 533 (Fla.1950), the Supreme Court enjoined the execution of a contract between the City and one other than the low bidder, holding:

“While the law imposes no mandatory obligation upon a public agency in respect to the letting of competitive contracts that will require the agency in every case to consider the lowest dollars and cents bid as being ‘the lowest responsible bid’ to the exclusion of all other pertinent factors that may be taken into consideration, the law does require that where discretion is vested in a public agency with respect to letting public contracts on a competitive basis, the discretion may not be exercised arbitrarily or capriciously but must be based upon facts reasonably tending to support the conclusions reached by such agency.”

Nor do we accept Appellants’ contentions that JEA has unbridled discretion to reject any and all bids “with or without” cause. Such action, as with all other discretionary functions of public entities, is subject to the requirement that its exercise be not arbitrary, unreasonable or capricious. Without these limitations the purpose of competitive bidding is circumvented. Rejection of all bidders then becomes a means of allowing a favored bidder another chance to submit a low bid. As stated in McQuillin :

“In exercising the power to reject any or all bids, and proceeding anew with the awarding of the contract, the officers cannot act arbitrarily or capriciously, but must observe good faith and accord to all bidders just consideration, thus avoiding favortism, abuse of discretion, or corruption. Even where the right to reject any and all bids is properly reserved, the bidding law may not be evaded under the color of a rejection.”

Accordingly, the judgments of the lower court are AFFIRMED.

IT IS SO ORDERED.

McCORD, C. J. and BOYER, J., concur.

      . Five of the general contractors submitted bids using Wolf Ridge’s pipe design; three used CorBan. One contractor submitted a bid giving JEA the option of either pipe supplier. The same data was attached to the bids of all contractors using Wolf Ridge, and the same Cor-Ban data was attached to those bids using that supplier.

      . The bid documents require registration “in accordance with Chapter 468” of the Florida Statutes. Florida Statute § 468.114, however, expressly exempts “contractors in work on . '. . utilities and services incidental thereto” from registration.

      . Final Judgment, November 7, 1977:

      “1. That the actions of the Jacksonville Electric Authority Bid Award Committee and its consulting engineers in recommending the rejection of the low bid of Roger J. Au & Son, Inc. was arbitrary, capricious and unreasonable.
      2. That Jacksonville Electric Authority, its Board, officers, agents and employees, be permanently restrained and enjoined from approving an award to the Wood-Hopkins Contracting Company as recommended by the Bid Review Committee Report dated October 11, 1977, regarding the Thermal Discharge contract for the Northside Generating Station.”

      .Final Judgment of Mandamus, November 30, 1977:

      “That the only evidence or testimony produced to the Court reflected that the Jacksonville Electric Authority Board followed the same reasons of the Bid Award Committee in its recommendation to the Jacksonville Electric Authority Board as a basis for rejecting all bids, which reasons this Court had previously determined to be arbitrary, capricious and unreasonable.

      Jacksonville Electric Authority is herewith ordered to immediately award the contract for the Thermal Discharge at Northside Generating Station as set forth in JEA Bid Specification No. F-0685-77 to Roger J. Au & Son, Inc. in accordance with the said Alternative Writ of Mandamus heretofore entered.”

      . McQuillin, Municipal Corporations, § 29.77, at page 438.


author: BOYER, Judge.

text:
    Janet O. SLUSHER, Petitioner, v. STATE of Florida, DEPARTMENT OF COMMERCE, Respondent.
    No. GG-192.
    District Court of Appeal of Florida, First District.
    Jan. 27, 1978.
    Janet 0. Slusher in pro per.
    Alex Littlefield, Jr., Tallahassee, for ap-pellee.
   BOYER, Judge.

Petitioner Slusher seeks review of a determination that she is ineligible for unemployment compensation benefits.

Petitioner was employed as a school teacher in Lakeland, Florida. She voluntarily quit her employment to relocate with her husband in Virginia where he had secured employment. She filed a claim for unemployment compensation which was denied on the basis of F.S. 443.06 which provides that a former employee shall be disqualified for benefits if the employee voluntarily left employment “without good cause attributable to his employer”.

Petitioner does not deny that she left her employment in order to be with her husband but urges that her decision to do so was for the preservation of her “American home way of life which is the basic foundation of this nation” and further argues that “no reasonable or sane person would abrogate the responsibility of a lawful marriage to satisfy a mere whim or fancy that leaving their place of employment was without good cause attributable to the employer.”

We certainly agree with the proposition that it is desirable to preserve marriages and keep families together. However, we must also agree with the statement of the appeals referee wherein he stated:

“Although the claimant’s reason for leaving may be considered a good personal reason, it cannot be considered attributable to the employer. Accordingly, it can only be considered that the claimant voluntarily left her employment without good cause attributable to her employer.”

The Petition for Writ of Certiorari is denied and the determination of denial of unemployment compensation is

AFFIRMED.

McCORD, C. J., and MELVIN, J., concur.


text:
    Arthur DUNCAN, Appellant, v. STATE of Florida, Appellee.
    No. HH-16.
    District Court of Appeal of Florida, First District.
    Jan. 27, 1978.
    Michael J. Minerva, Public Defender, and Louis A. Carres, Asst. Public Defender, for appellant.
    Robert L. Shevin, Atty. Gen., and Patti Englander, Asst. Atty. Gen., for appellee.
   BOYER, Judge.

Appellant entered a plea of guilty to burglary of a structure. The Circuit Court Minute Book reflects a judgment and sentence containing the following recitation:

“You, Arthur Duncan, having entered a plea of Guilty to the crime of Burglary of Structure, Count I of the Information, the court adjudges you guilty. It is the judgment of the court and the sentence of the law that you, Arthur Duncan, for your said offense, be committed to the custody of the Director of the Department of Offender Rehabilitation of the State of Florida for a period of Four (4) Years. You are given credit on this sentence for One Hundred Fifteen (115) days dail time served in the County Jail of Bay County, Florida.”

Thereafter there was entered by the Clerk of the Court a “Uniform Commitment to Custody of Division of Corrections” which recited the offense, the date of conviction, the date sentence was imposed and designated the term of sentence as being four years without any reference to credit for jail time. Said document is styled in the name of the State of Florida against Arthur Duncan and is directed “TO THE SHERIFF OF SAID COUNTY AND THE DIVISION OF CORRECTIONS OF SAID STATE, GREETING:” It recites, inter alia

“ * * * this is to command you, the said Division of Correction, * * * to keep and safely imprison the said defendant for the term of said sentence in the institution in the state correctional system to which you, the said Division of Corrections, may cause the said defendant to be conveyed or thereafter transferred. And these presents shall be your authority for the same. Herein fail not.”

Insofar as the said Uniform Commitment to Custody of Division of Corrections purports to deprive appellant of the 115 days jail time provided for in the judgment and sentence as reflected by the Circuit Court Minute Book, it is erroneous. (See F.S. 921.161)

Accordingly, the judgment and sentence (as reflected by the Circuit Court Minute Book) are affirmed but we remand to the trial court to correct the erroneous sentence reflected in the Uniform Commitment to Custody of Division of Corrections. It is not necessary that appellant be present when the correction be effected.

IT IS SO ORDERED.

McCORD, C. J., and MELVIN, J., concur.


text:
    Theodore Leon BROWN, Appellant, v. STATE of Florida, Appellee.
    Nos. 77-100 and 77-101.
    District Court of Appeal of Florida, Second District.
    Jan. 27, 1978.

      Jack 0. Johnson, Public Defender, Bar-tow, and Wayne Chalu, Asst. Public Defender, Tampa, for appellant.
    Robert L. Shevin, Atty. Gen., Tallahassee, and William I. Munsey, Jr., Asst. Atty. Gen., Tampa, for appellee.
   PER CURIAM.

Appellant was charged by information with burglary of a structure in case number 75-5768 (appeal number 77-101). Appellant entered a guilty plea, was adjudicated guilty of burglary, and was placed on ten years probation.

Subsequently, appellant was charged by information with delivery of heroin in case number 76-7489 (appeal number 77-100). A probation revocation hearing was conducted predicated on the heroin charge. After taking testimony the trial court properly revoked appellant’s probation and he was sentenced to fifteen years in prison for the crime of burglary of a structure.

Immediately after appellant’s probation was revoked he entered a guilty plea to the heroin charge. This plea was entered pursuant to a bargain whereby appellant would receive a fifteen-year sentence to be served concurrently with the fifteen-year sentence he had just received for burglary. The trial court conducted an inquiry into the volun-tariness of appellant’s guilty plea, concluded it was voluntary, adjudicated appellant guilty of delivery of heroin, and sentenced appellant to fifteen years in prison to run concurrently with appellant’s sentence for burglary.

Appellant first contends that his being sentenced to fifteen years for burglary of a structure is illegal since the maximum sentence he could receive for that crime was five years. We agree. The information in case number 75-5768 (appeal number 77-101) does not allege that there was a human being in the structure at the time appellant committed the crime. Such an allegation is essential to the charge where a structure, as opposed to a dwelling, is involved in order for the crime to be a second-degree felony which carries a maximum punishment of fifteen years. Section 810.-02(3), Florida Statutes (1975); Mays v. State, 349 So.2d 792 (Fla.2d DCA 1977). Absent this allegation, the burglary charged is a third-degree felony punishable by a maximum of five years imprisonment. Section 775.082(3)(d), Florida Statutes (1975). Accordingly, this sentence must be reversed and the cause remanded for entry of a sentence not exceeding five years.

Appellant next contends that his plea of guilty to the heroin charge was entered into without a proper understanding of its consequences, rendering it involuntary. The basis of appellant’s argument is that he entered the plea with the understanding that he was to receive a fifteen-year sentence for the heroin charge to be served concurrently with the fifteen-year burglary sentence which had just been previously (and erroneously) imposed. In light of the illegality of the fifteen-year sentence on the burglary charge, appellant asserts that contrary to the negotiations, he is serving ten years more prison time on the heroin charge than could have been lawfully imposed on the burglary charge. Appellant argues that the ten-year excess prison term amounts to a breach of his understanding of the plea negotiation. Accordingly, appellant asserts that his sentence on the heroin charge must be reversed and he must be allowed to withdraw his plea.

While we agree that the sentence on the heroin charge must be reversed, we do not agree with appellant that he must be allowed to withdraw his plea. If upon resen-tencing the trial court imposes a sentence on the heroin charge equal in length to and running concurrently with the sentence imposed for the burglary charge, the terms of the negotiations will be fulfilled, the plea will not be involuntary, and appellant need not be allowed to withdraw his guilty plea. This does not necessarily preclude a sentence for the heroin charge which exceeds in length appellant’s sentence for the burglary charge, but we note that such a sentence may require an inquiry into the understanding of the participants in the plea negotiations and a determination that the longer sentence fulfills the actual terms of those negotiations. Accordingly, the sentence imposed for the heroin charge (case number 76-7489, appeal number 77-100) is reversed and the cause remanded for resentencing. Nothing herein precludes the appellant from filing a motion to withdraw his guilty plea on the heroin charge.

We also note that the present sentences do not specifically set forth the period of credit time to be allowed as required by Section 921.161(1), Florida Statutes (1975); Brooks v. State, 349 So.2d 794 (Fla.2d DCA 1977). Moreover, the phrase “at hard labor” in the sentences is improper. Brooks v. State, supra.

Both cases are remanded for proceedings consistent with this opinion.

HOBSON, Acting C. J., and OTT and DANAHY, JJ., concur.


author: BOARDMAN, Chief Judge.

text:
    NATIONAL INDEMNITY COMPANY, Paul Van Dosen, Walter Styrzo, and Albert Balcombe, d/b/a Atlas Ambulance Service, Appellants, v. Sue L. ANDREWS et vir., Appellees.
    No. 77-614.
    District Court of Appeal of Florida, Second District.
    Jan. 27, 1978.

      Stephen F. Myers of Shackleford, Farrior, Stallings & Evans, Tampa, for appellants.
    Lee S. Damsker of Gordon & Maney, Tampa, for appellees.
   BOARDMAN, Chief Judge.

In this interlocutory appeal defendants/appellants, National Indemnity Co., Paul Van Dosen, Walter Styrzo, and Albert Balcombe, d/b/a Atlas Ambulance Service, attack the order of the trial court granting a motion to interview jurors filed by plaintiffs/appellees, Sue L. and John W. Andrews, as permitted by Fla.R.Civ.P. 1.431(g).

We are of course well aware that Rule 1.431(g) provides that the trial court may permit members of the jury to be questioned under certain circumstances to determine whether grounds to challenge their verdict exist. A jury verdict will not be disturbed, however, in the absence of a showing that it “does not square with right and justice and there is reasonable ground to conclude that the jury acted through sympathy, passion, prejudice, mistake, or other unlawful cause . . . .” Florida Publishing Co. v. Copeland, 89 So.2d 18, 20 (Fla.1956).

The motion filed by appellees alleged as grounds for the interview that:

1. It appears as a matter of fact that the jury was guided by either passion, prejudice, or other matters outside of the record of this cause, and that they did not follow the instructions on the law as given and expressed by the Court; or in the alternative,
2. That the jury was confused by the instructions of the Court and by the argument by the counsel for the Defendants in that they did not follow the instructions of the Court concerning the greater weight of the evidence.
3. That the jury was influenced by matters outside of the record in this cause and allowed such influence to taint the verdict rendered.
4. That the jury persistently did not follow the instruction of the Court as to not discussing the case among themselves or with others.

It appears from the record that these conclusory allegations were bottomed upon pure speculation and surmise of appellees’ attorney, unsupported or uncorroborated either by sworn affidavit or statements of even one of the jurors or a third party who was aware of an impropriety, wrongdoing, .or violation of the oath of a juror affecting the jury verdict. At the hearing on the motion the attorney offered no further support for the motion by stating that: “We believe that perhaps something the jurors might have to say might be material on the question of whether or not we ought to have a new trial” (emphasis added).

There is no support in the record before us that the jury was tampered with, nor that appellees or their attorney had any knowledge of any misconduct or irregularity on the part of any juror in the trial of the case which would require reversal of the verdict. We submit that the case was fairly and impartially tried. The rights of the parties were not infringed upon or prejudiced in any manner. After the verdict of the jury was published the court inquired whether either counsel cared to have the jury polled. At the suggestion of trial counsel for plaintiffs each juror was polled and each announced that the verdict reached was his or hers. In a recent decision of this court, speaking through Judge McNulty, now retired, we held:

If a verdict is pronounced in the presence of all jurors which presumptively has satisfied the enlightened conscience of each of them it is against public policy to inquire into the motives and influences by which their deliberations were governed. The rule is founded on the sound policy of preventing litigants or the public from invading the privacy of the jury room.

Velsor v. Allstate Insurance Co., 329 So.2d 391, 393 (Fla.2d DCA 1976).

While we recognize the authority of the trial court to order jurors to be interviewed after their verdict is reached in a proper case we say that this does not appear to be such a case for the exercise of that authority. This is not a case wherein a miscarriage of justice will result if the jurors are not permitted to be interviewed or interrogated. The spirit and intent of the rule was to protect and prevent just such from taking place. The rule was not intended to authorize broad hunting expeditions or fishing excursions. The Supreme Court of the United States in considering the advisability of permitting a party to inquire into a jury’s basis for reaching a verdict suggested that to permit the inquiry “ ‘would open the door to the most pernicious arts and tampering with jurors.’ ‘The practice would be replete with dangerous consequences.’ ‘It would lead to the grossest fraud and abuse’ and ‘no verdict would be safe.’ ” McDonald v. Pless, 238 U.S. 264, 268, 35 S.Ct. 783, 784, 59 L.Ed. 1300 (1915).

Under Florida’s liberal rule of civil procedure an interview of jurors will be allowed but only where some semblance of grounds are demonstrated which would subject the jury’s verdict to challenge prior to the interview.

In view of our decision we do not deem it necessary to discuss the remaining points raised by appellants.

REVERSED.

GRIMES and SCHEB, JJ., concur.

      . If a party believes that grounds for legal challenge to a verdict exist he may move for an order permitting an interview of a juror or jurors to determine whether the verdict is subject to the challenge. The motion shall be served within ten days after rendition of the verdict unless good cause is shown for the failure to make the motion within that time. The motion shall state the name and address of each juror to be interviewed and the grounds for challenge that the party believes may exist. After notice and hearing, the trial judge shall enter an order denying the motion or permitting the interview. If the interview is permitted, the court may prescribe the place, manner, conditions, and scope of the interview.


author: MILLS, Acting Chief Judge.

text:
    Billy Glenn ISLEY, Appellant, v. STATE of Florida, Appellee.
    No. BB-288.
    District Court of Appeal of Florida, First District.
    Jan. 30, 1978.
    Wayne Chalu, Simson Unterberger, Tampa and Jack 0. Johnson, Bartow, for appellant.
    Robert L. Shevin, Atty. Gen., Patti Eng-lander, Asst. Atty. Gen., for appellee.
   MILLS, Acting Chief Judge.

Isley appeals from a judgment and sentence adjudicating him guilty of first degree murder and sentencing him to life imprisonment. He raises three points on appeal.

Firstly, Isley contends that the trial court erred in denying his motion for discharge pursuant to the Speedy Trial Rule (Fla.R.Crim.P. 3.191). This Rule provides that a defendant shall be discharged if he has not been brought to trial within a specified time period during which he has been continuously available for trial. Isley was not brought to trial within the 180-day time period, however, he was not continuously available for trial during that period of time. On 25 March 1975, the trial court ordered- a determination of Isley’s mental condition. On 2 May 1975, after a hearing on the matter, the court entered an order of sanity. During that period of time, Isley’s competency to stand trial was being determined and thus he was unavailable for trial. The trial judge properly denied Isley’s motion for discharge.

Secondly, Isley contends that the trial court erred in denying his motion for new trial. We agree. One of the grounds for the motion was that the trial court had denied the jury’s request for a copy of the jury instructions without Isley or his counsel being present or receiving notice. In Ivory v. State, 351 So.2d 26 (Fla.1977), decided while this case was pending on appeal, the Supreme Court held:

“. . . [I]t is prejudicial error for a trial judge to respond to a request from the jury without the prosecuting attorney, the defendant, and the defendant’s counsel being present and having the opportunity to participate in the discussion of the action to be taken on the jury’s request. This right to participate includes the right to place objections on record as well as the right to make full argument as to the reasons the jury’s request should or should not be honored.”

Insofar as it is in conflict with the above holding, the Supreme Court overruled Kimmons v. State, 178 So.2d 608 (Fla. 1st DCA 1965), relied on by the trial judge in denying Isley’s motion for new trial.

The final point on appeal is whether the trial judge erred by refusing to instruct the jury on the consequences of a verdict of not guilty by reason of insanity. We think so. In Roberts v. State, 335 So.2d 285 (Fla.1976), the Supreme Court expressly adopted the decision of the Circuit Court of Appeals in Lyles v. United States, 103 U.S.App.D.C. 22, 254 F.2d 725 (1957), which held that “. . . whenever . . . the defense of insanity is fairly raised, the trial judge shall instruct the jury as to the legal meaning of a verdict of not guilty by reason of insanity . . . .” The State contends that the Roberts decision merely holds that when a jury is fully instructed on the possible ramifications of a guilty verdict, the jury must also be instructed on the consequences of a verdict of not guilty by reason of insanity. However, if the Supreme Court had intended its holding to be so limited, it would not have adopted Lyles and would not have expressly declined to limit its holding to the facts of the case.

Reversed and remanded for a new trial.

SMITH and ERVIN, JJ., concur.


text:
    Dean MATTHEWS, Appellant, v. Stuart J. PAGE, Appellee.
    No. 76-1384.
    District Court of Appeal of Florida, Fourth District.
    Jan. 31, 1978.
    Nathan Loeb, Orlando, for appellant.
    Richard A. Wagner and Martin R. Satava of Rodgers, Rodgers, Wagner & Satava, Orlando, for appellee.
   ALDERMAN, Chief Judge.

This appeal comes to us from a directed verdict in favor of the defendant, whom the plaintiff sued for conversion of a Great Dane trailer and for unlawfully terminating a purchase agreement without proper notice. We reverse.

When Page agreed to sell the trailer to Matthews, the following agreement was signed by the two parties on December 12, 1974.

Mr. Matthews agrees to purchase above trailer in amount of $6400.00. He agrees to pay $500.00 down and to pay a minimum of $400.00 per month until the total amount is paid for.

There was testimony that Matthews paid, in addition to the $500 down payment, $689 in December 1974, $950 in January 1975, and $410 in February 1975, a total of $2,049. The buyer made no payments in March or April 1975, and in early April the seller repossessed the trailer.

We find that the written agreement is ambiguous to the extent that it might or might not be read to mean that payments in excess of $400 in one month could be applied to future months when the $400 minimum was not paid. Matthews testified that there was just such an oral agreement between him and Page, whieh should have resulted in the application of the excess payments made in December, January, and February to make up the minimum payments for March and April.

Because there was evidence upon which the jury could lawfully have found for the plaintiff, the trial court erred in directing a verdict for the defendant. Florida East Coast Ry. Co. v. Britt, 347 So.2d 122 (Fla.4th DCA 1977).

REVERSED and REMANDED.

ANSTEAD, J., and GREEN, OLIVER L., Associate Judge, concur.


author: STETTIN, HERBERT, Associate Judge.

text:
    James ECK, Appellant, v. STATE of Florida, Appellee.
    No. 76-2035.
    District Court of Appeal of Florida, Fourth District.
    Jan. 31, 1978.
    Richard L. Jorandby, Public Defender, Jerry L. Schwarz and James L. Eisenberg, Asst. Public Defenders, West Palm Beach, for appellant.
    Robert L. Shevin, Atty. Gen., Tallahassee, and Robert L. Bogen, Asst. Atty. Gen., West Palm Beach, for appellee.
   STETTIN, HERBERT, Associate Judge.

Appellant was convicted of third-degree murder. He seeks reversal claiming error in the admission of testimony at trial from a police officer concerning his silence after arrest and Miranda warnings.

Factually, it appears the appellant had been drinking with the decedent at his home. They had a dispute and the appellant shot the decedent. When the police arrived they arrested the appellant, read him his Miranda rights and then proceeded to question him in the house within sight of the decedent’s body.

A police officer was questioned by the State at trial about the conversation with the appellant at the murder scene.

Q Did he (the appellant) ask any questions or make any comments or indication about the body that was lying in the kitchen?
A None whatsoever. At the point prior to fire rescue, prior to the ambulance arriving, Mr. Eck was moved into an area where we could better talk to him and that was again the dining room area, and at no time did he make any reference to the victim lying on the floor.

And again:

A The second peculiarity would be, in my own mind, is when we brought him back into the area where the deceased was still lying. He made no mention, did not view, didn’t ask any questions as to what he was doing there or how he was doing there or anything.

And finally:

Q- Did he make any comment to you at all?
A About being injured?
Q Yes.
A No, not to me.
Q Did he make any comment to you about the incident?
A No.

Bennett v. State, 316 So.2d 41 (Fla.1975) established that it is fundamental reversible error for the State to elicit testimony at trial concerning an accused’s silence during questioning after Miranda warnings had been given. Reversal is required even if, as here, no objection was made to the testimony at trial. Carter v. State, 335 So.2d 875 (Fla. 4th DCA 1976).

The State argues that appellant did answer other questions put to him by the police during this interrogation and that this constituted a waiver of his right to remain silent. A careful reading of this testimony shows that it concerned matters not directly connected with the incident. The argument that a waiver exists because of answers given to unrelated questions is illogical. It would vitiate the effect of Miranda and Bennett protections, something which the courts have steadfastly refused to do in recent years. See Sylvester v. State, 341 So.2d 203 (Fla. 4th DCA 1977); Carter, supra; Martin v. State, 334 So.2d 841 (Fla. 4th DCA 1976); Bostic v. State, 332 So.2d 349 (Fla. 4th DCA 1976); Acee v. State, 330 So.2d 496 (Fla. 4th DCA 1976); Jones v. State, 200 So.2d 574 (Fla. 3d DCA 1967) and cases cited therein.

The judgment and sentence are vacated, and the cause is reversed and remanded for a new trial.

REVERSED AND REMANDED.

ANSTEAD, J., and DREW, E. HARRIS (Retired), Associate Judge, concur.