author: ERVIN, Judge.

text:
    The FLORIDA DEPARTMENT OF OFFENDER REHABILITATION, Petitioner, v. Leroy JERRY and the Florida Division of Administrative Hearings, Respondents.
    No. FF-303.
    District Court of Appeal of Florida, First District.
    Jan. 10, 1978.
    Rehearing Denied Feb. 7, 1978.
    Earl H. Archer, III, Tallahassee, for petitioner.
    John T. Chandler, Gainesville, for respondents.
   ERVIN, Judge.

Leroy Jerry, an inmate in the state correctional institution, was charged by the Department of Offender Rehabilitation (DOR) with unarmed assault in violation of Florida Administrative Code Rule 33-3.-08(2). He was found guilty, placed in disciplinary confinement and served his penalty. He then attacked the above Rule in a Section 120.56, Florida Statutes (Supp.1976), proceeding. Rule 33-3.08 sets forth the procedure by which an inmate is subjected to disciplinary confinement and forfeiture of gain-time. Authority for the Rule is derived from Section 944.28, Florida Statutes (1975), which allows forfeiture of all or part of gain-time earned by a prisoner should he be guilty of certain specified acts, including assault.

Jerry’s petition for an administrative determination that Rule 33-3.08(2) was invalid alleged he was a person substantially affected since he had been charged with an infraction of the Rule, assault, and as a result his substantial interests in retaining accrued gain-time and freedom from disciplinary confinement were at issue. He also alleged he was substantially affected because the maximum penalty to which he could be exposed was disciplinary confinement for 60 days and 180 days loss of gain-time. The hearing examiner found Rule 33-3.08(2) invalid for failure to meet the procedural guidelines set forth in Section 120.57, Florida Statutes (Supp.1976). He concluded that since Section 120.72(1), Florida Statutes (Supp.1976), makes uniform the rulemaking and adjudicative procedures used by the administrative agencies of the state, there was no exemption to DOR from the requirements of the new APA as found in Chapter 120. Consequently, the Department is an agency as defined by Section 120.52(l)(b). By juxtaposing certain provisions of the Rule with Section 120.57, he found the Rule conflicted with pertinent portions of the statute and could not stand.

The hearing officer’s order involves matters of great substance; nevertheless, for the reasons stated infra, it is not necessary for us to address the primary question raised as to the validity of the Rule since Jerry has not met the threshold requirement of standing.

Our efforts to determine what occurred at the hearing before the disciplinary team are thwarted because there is no record of those proceedings. It was not established Jerry ever made a request for a Section 120.57 hearing during the disciplinary proceedings. We do know however that at the time of the hearing before the administrative examiner, Jerry had completely served his disciplinary confinement. But we do not know whether Jerry suffered any loss of gain-time. The only inescapable conclusion which can be reached from the administrative proceedings is that the hearing examiner found Jerry has standing because he is a member of the prison class, has been subjected to alleged invalid procedures in the past and may .possibly in the future be subjected to such procedures. Observe the following from the hearing officer’s order:

“Respondent argues that Petitioner has no standing to seek an administrative determination of the validity of the Rule because he had already been found guilty of an infraction under the Rule and been subjected to discipline prior to the final hearing in this cause and thus it is not now affected by the Rule. The Hearing Officer specifically rejects this argument. The Rule applies to inmates in the correctional institutions of this state. Petitioner is such an inmate. Petitioner has been subjected to the procedures set forth in the Rule and may at any time in the future be again subjected to those procedures. Therefore, Petitioner’s interest is certainly a timely and current interest and he should not be required, as argued by Respondent, to again violate the provisions of the Rule in order to gain the requisite interest necessary to challenge the validity of the Rule.
jfc sfc * * * %
“. . . [I]t appears that petitioner’s interest in loss of gain-time having real substance and being sufficiently embraced within the Fourteenth Amendment ‘liberty’ to entitle him to due process, is a substantial interest as that term is used in Section 120.57, F.S. It follows that a Rule such as that challenged herein, which sets forth the procedure by which Petitioner’s substantial interest shall be determined and his rights protected, has substantial affect upon Petitioner entitling him to challenge its validity under Section 120.56, F.S.”

Any attempt to comprehend in depth the meaning of standing involves a careful study of the pertinent provisions of the new APA, compared with the 1961 Act as well as a comparison with the federal APA and the cases interpreting it.

The relief Jerry seeks is in essence an administrative declaration of his rights as affected by the DOR Rule. Florida’s APA provides two distinct types of declaratory statements: (1) A declaratory statement involving the applicability of a statute, rule or order as provided by Section 120.565, and (2) a declaratory statement on the validity of a rule or proposed rule, provided by Sections 120.54 and .56.

Section 120.30, Florida Statutes (1973), repealed by Ch. 74-310, Section 4, Laws of Florida, effective January 1, 1975, permitted any “affected party” to obtain a judicial declaration of the validity of any rule of an administrative agency by bringing a declaratory judgment action in the circuit court of the county in which such party resides.

The legislature in enacting Sections 120.-54(4)(a) and 120.56, employed more restrictive language, “substantially affected”, than it did in enacting Section 120.30. The legislature must be presumed to have intended a different result by employing language describing a more limited scope of persons affected in a given situation and less restrictive language in other situations. For example, Section 120.54(3) permits all “affected persons” an opportunity to present evidence and argument on all issues under consideration appropriate to inform the agency of their contentions within 14 days after date of publication of the notice of a proposed rule.

There are very few Florida cases which have addressed the question of standing under the 1974 APA. In A.S.I., Inc. v. Florida Public Service Commission, 334 So.2d 594 (Fla.1976), our Supreme Court held that a competitor who filed a protest before the Public Service Commission to an air freight delivery company’s application to transport delayed, misplaced and/or misrouted baggage from Jacksonville International Airport to specified points in northeast Florida had no standing as a substantially interested party within the meaning of Section 120.57, even assuming the competitor, A.S.I., would experience competition from the air freight delivery company’s operation under its for hire permit. Later in Gadsden State Bank v. Lewis, 348 So.2d 343 (Fla. 1st DCA 1977), we held that Gadsden State Bank, a competitor of Quincy State Bank which had filed an application with the Comptroller for authority to establish a branch bank near Gadsden’s existing facility, had standing as a party substantially interested in a Section 120.57(1) hearing. However, the opinion carefully pointed out that the potential competitive injury to Gadsden by a branch bank is not explicitly a matter of statutory concern under the APA, but it was made so by the Department’s rule requiring, as a condition to branch banking, that local conditions assure reasonable promise of successful operation for the proposed branch. We thereby concluded that Gadsden was a party because it was made a party by agency rule defining party as a protestant in such agency proceedings.

Under the federal APA before a person may seek redress in the courts from agency action, he must be either “adversely affected or aggrieved by agency action. . . ” This is practically the same standard under Section 120.68(1), permitting “[a] party who is adversely affected by final agency action . to [seek] judicial review.” “Adverse” is different in meaning from “substantial,” the former defined as “acting against or in a contrary direction”; the latter defined as “consisting of or relating to substance, . . . not imaginary or illusory . . . considerably large.”

Despite the dissimilarities of the terms under the federal and Florida Acts, decisions involving standing in the federal courts often turn upon issues pertaining to whether a person seeking relief has shown that his interests are substantial and not illusory. The cases have no common thread running throughout and the facts must be analyzed on a case by case basis.

In Sierra Club v. Morton, 405 U.S. 727, 92 S.Ct. 1361, 31 L.Ed.2d 636 (1972), an environmental group challenged the United States Forest Service’s proposed development of the Mineral King Valley, a part of the Sequoia National Forest. The group merely alleged “a special interest in conservation and sound maintenance of the national parks, game refuges and forests of the country.” The Court held that standing to seek judicial review under the federal APA existed only to those who could show “that the challenged action had caused them ‘injury in fact’, and where the alleged injury was an interest ‘arguably within the zone of interest to be protected or regulated’ by the statutes that the agencies were claimed to have violated.” 405 U.S. at 733, 92 S.Ct. at 1365. It stressed the importance that a party seeking judicial review must himself be among the injured for it is this requirement which gives a litigant a direct stake in the controversy and prevents the judicial process from becoming no more than a vehicle for the vindication of the value interests of concerned bystanders.

A year later, paradoxically, the United States Supreme Court in United States v. SCRAP, 412 U.S. 669, 93 S.Ct. 2405, 37 L.Ed.2d 254 (1973), permitted standing to various environmental groups challenging the Interstate Commerce Commission’s decision allowing railroads to increase freight rates. Petitioners contended the 2.5% surcharge on freight rates would cause their members “economic, recreational and aesthetic harm” by discouraging recyclable materials and promoting the use of raw materials that compete with scrap, thus adversely affecting the environment. The environmental group, SCRAP, claimed its members were harmed by the ICC action since (1) each of its members was caused to pay more for finished goods, and (2) each of its members used the forests, rivers, mountains and other natural resources in the Washington, D.C. area for recreational purposes and that this use was disturbed by the adverse environmental impact caused by the nonuse of recyclable goods brought about by a rate increase on such commodities.

The majority opinion distinguished the case from Sierra Club since in the latter case there was no allegation that the party seeking review was among the injured whereas in SCRAP the litigants claimed that the alleged illegal action of the ICC would harm them in their use of natural resources in the Washington metropolitan area.

In Roe v. Wade, 410 U.S. 113, 93 S.Ct. 705, 35 L.Ed.2d 147 (1973), a woman was held without standing to challenge an antiabortion statute in an action where she had alleged she suffered from a “neural-chemical” disorder, and that her doctor advised against pregnancy and also advised against birth control pills, and that her marital happiness was adversely affected by fear of pregnancy. The court interpreted the facts to mean only that the couple might suffer some future possible injury from the application of the anti-abortion statute, saying

“Their alleged injury rests on possible future contraceptive failure, possible future pregnancy, possible future unpreparedness for parenthood, and possible future impairment of health. Any one or more of these several possibilities may not take place and all may not combine. In the Does’ estimation, these possibilities might have real or imagined impact upon their marital happiness. But we are not prepared to say that the bare allegation of so indirect an injury is sufficient to present an actual case or controversy.” 410 U.S. 128, 93 S.Ct. 714.

In O’Shea v. Littleton, 414 U.S. 488, 94 S.Ct. 669, 38 L.Ed.2d 674 (1974), plaintiffs brought a class action against law enforcement officers for injunctive relief alleging various patterns of conduct in the administration of criminal justice which deprived them of rights secured by the Constitution and statutes. It was specifically alleged that the magistrate and judge had deprived members of their class of their constitutional rights by setting bond without regard to the facts, imposing higher bond for blacks than for whites and requiring members of the class to pay for trial by jury. The court held that plaintiffs had not alleged an actual case or demonstrated injury and that abstract injury is not enough. “It must be alleged that the plaintiff ‘has sustained or is immediately in danger of sustaining some direct injury’ as a result of the challenged statute or official conduct.” 414 U.S. at 494, 94 S.Ct. at 675. It continued that the injury or threat of injury must be both real and immediate, not conjectural or hypothetical. The Court observed that while there had been no allegation by plaintiffs that injury had occurred, counsel for plaintiffs had stated during argument that some of the plaintiffs had been defendants in proceedings before a magistrate and had suffered from unconstitutional treatment. The court continued:

“Past exposure to illegal conduct does not in itself show a present case or controversy regarding injunctive relief, however, if unaccompanied by any continuing, present adverse effects." 414 U.S. at 495-496, 94 S.Ct. at 676 (Emphasis added.)

The Court took pains to note there was no allegation that any of the named plaintiffs were then serving an allegedly illegal sentence or were on trial or awaiting trial, and concluded:

“Of course, past wrongs are evidence bearing on whether there is a real and immediate threat of repeated injury. But here the prospect of future injury rests on the likelihood that respondents will again be arrested for and charged with violations of the criminal law and will again be subjected to bond proceedings, trial, or sentencing before petitioners.
******
But it seems to us that attempting to anticipate whether and when these respondents will be charged with a crime and will be made to appear before either petitioner takes us into the area of speculation and conjecture.
******
We assume that respondents will conduct their activities within the law and so avoid prosecution and conviction as well as exposure to the challenged course of conduct said to be followed by petitioners.
As in Golden v. Zwickler [394 U.S. 103, 89 S.Ct. 956, 22 L.Ed.2d 113 (1969)], we doubt that there is ‘ “sufficient immediacy and reality” ’ to respondents’ allegations of future injury to warrant invocation of the jurisdiction of the District Court. There, ‘it was wholly conjectural that another occasion might arise when Zwickler might be prosecuted for distributing the handbills referred to in the complaint.’ Id., at 109, 89 S.Ct. 956, 22 L.Ed.2d 113. Here we can only speculate whether respondents will be arrested, either again or for the first time, for violating a municipal ordinance or a state statute, particularly in the absence of any allegations that unconstitutional criminal statutes are being employed to deter constitutionally protected conduct.” 414 U.S. at 496-7, 94 S.Ct. at 676.

Jerry, like the plaintiffs in O’Shea v. Littleton, supra, has failed to show injury which is accompanied by any continuing, present adverse effects. He has failed to demonstrate, either at the time his petition for administrative relief was filed or at the time of the hearing, that he was then serving disciplinary confinement or that his existing prison sentence had been subjected to loss of gain-time. He has not alleged the Rule is unconstitutionally invalid, rather that the procedure afforded him by the Rule does not comport with the procedure provided by Chapter 120. True, the loss of gain-time is a Fourteenth Amendment liberty entitling a prisoner to due process. Wolff v. McDonald, 418 U.S. 539, 94 S.Ct. 2963, 41 L.Ed.2d 879 (1974). Were we confronted with a situation in which loss of gain-time had in fact occurred there would be no question but that injury in fact resulted and that Jerry had appropriate standing to challenge the Rule. Here there is nothing in the record so demonstrating. Finally we note that Jerry has not been made a party by agency rule as in Gadsden State Bank v. Lewis, supra.

As in O’Shea, Jerry’s prospects of future injury rest on the likelihood that he will again be subjected to disciplinary confinement because of possible future infractions of Rule 33-3.08(2). Whether this will occur, however, is a matter of speculation and conjecture and we will not presume that Jerry, having once committed an assault while in custody, will do so again. To so presume would result only in illusory speculation which is hardly supportive of issues of “sufficient immediacy and reality” necessary to confer standing.

Petition for review is granted and the order of the hearing examiner is reversed.

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

      . Rule 33-3.08 provides a supervising officer shall investigate any apparent violation and any reports of the incident, and shall file his own report with the disciplinary team. The team meets and reviews the two reports. If the team finds a chargeable offense under Section 944.28(2)(a), the Rule provides a copy of the charges will be delivered to the inmate at least 24 hours in advance of a hearing before the team. The Rule states the hearing will not be open to the public and if the inmate is not properly able to represent himself, he should be provided a staff representative. No mention is made in the Rule of the right to counsel in such a disciplinary hearing. The Rule further provides (1) the chairman of the team . . may determine that the source of certain information should not be revealed to the inmate . ”, and (2) a witness need not be called if so doing would create a risk of reprisal or would undermine authority.

      . Section 120.56(1) and (2), states in part:
      “(1) Any person substantially affected by a rule may seek an administrative determination of the invalidity of the rule on the ground that the rule is an invalid exercise of delegated legislative authority.
      (2) The petition seeking an administrative determination under this section shall be in writing and shall state with particularity facts sufficient to show the person seeking relief is substantially affected by the rule and facts sufficient to show the invalidity of the rule.”

      . Section 944.28(2)(b) provides the method of forfeiture: A written charge is delivered to the prisoner giving notice of a hearing before a disciplinary committee. That committee, composed of prison officials, may or may not find him guilty. If he is found guilty, it may recommend to the superintendent of the prison forfeiture of any gain-time. If the superintendent approves the recommendation, it is then forwarded to the Department which may declare a forfeiture.

      . Although the federal APA was held not applicable to federal disciplinary proceedings in Clardy v. Levi, 545 F.2d 1241 (9th Cir. 1976), there does not appear in Florida’s APA any provision which expressly excludes DOR’s disciplinary proceedings from APA control. Moreover, at least one scholar, and a member of the Law Revision Council responsible for drafting the 1974 APA, has opined that agency action extends to prison disciplinary matters. Levinson, The Florida Administrative Procedure Act: 1974 Revision and 1975 Amendments, 29 U.Miami L.Rev. 617, 628 (1975).

      . For example a party to a Section 120.57 hearing is entitled to not less than 14 days notice under subsection (l)(b)(2), therefore sub-paragraph eight of the Rule violates the statute’s notice requirements since it permits only 24 hours’ notice. Additionally Section 120.-57(l)(b)4 allows parties to be represented by counsel before administrative tribunals whereas sub-paragraph 13(d) of the Rule allows a staff representative to represent the inmate only if he is illiterate or where the complexity of the issues makes it unlikely the inmate is able to represent himself. Finally, sub-paragraph (h) of the Rule gives the chairman of the disciplinary team the power to withhold the source of incriminating information from the inmate. Witnesses may not be called if doing so would create a risk of reprisal or would undermine authority. Section 120.57(l)(b)4, however, gives all parties the opportunity to respond, to present evidence and to conduct cross-examination.

      . In interpreting the effect of Sec. 120.30, we stated in D. & W. Oil Company, Inc. v. O’Malley, 293 So.2d 128 (Fla. 1st DCA 1974), that standing under the statute was broader than declaratory actions pursued under Ch. 87.

      . Section 10 of the Federal Administrative Procedure Act (5 U.S.C. § 702) provides:
      “A person suffering legal wrong because of agency action, or adversely affected or aggrieved by agency action within the meaning of a relevant statute, is entitled to judicial review thereof.”

      . Webster’s New Collegiate Dictionary (1976).

      .Professor Davis after analyzing the more recent United States Supreme Court opinions concluded that “the dozen efforts [by the Court] to locate the line [between injury and no injury] have produced some seemingly conflicting case law, and all the standing cases of the 1970s have been decided by a divided court.” Davis, ADMINISTRATIVE LAW OF THE SEVENTIES, SUPPLEMENTING ADMINISTRATIVE LAW TREATISE 507 (1976).

      . In footnote numbered fourteen to the opinion, the Court specifically rejected the government’s contention that standing should be limited only to those who have been “significantly” affected by agency action. 412 U.S. 689, 93 S.Ct. 2417. The Court stated that the standard which it applied, “injury in fact,” reflects the statutory requirement that a person be “adversely affected,” which distinguishes the interests of “a person with a direct stake in the outcome of a litigation — even though small— from a person with a mere interest in the problem.” Ibid. Since the test suggested by the government, and rejected by the Court, was practically identical to the words used in Section 120.56, the Court’s decision might conceivably have been different had it been presented with a statute worded in the same fashion as Section 120.56. Nevertheless, if the SCRAP decision were the final word on the federal question of standing, it would be highly persuasive authority for Jerry’s position; however, there are other cases.

      . One may only speculate whether the opinion in O’Shea was intended to modify the broad language employed by the court in SCRAP to confer standing. Observe the following language from the latter opinion:
      “Of course, pleadings must be something more than an ingenious academic exercise in the conceivable. A plaintiff must allege that he has been or will in fact be perceptibly harmed by the challenged agency action, not that he can imagine circumstances in which he could be affected by the agency’s action.” 412 U.S. at 688-689, 93 S.Ct. at 2416. (Emphasis added.)


source: Caselaw Access Project

author: KEHOE, Judge.

license: Public Domain

text:
    William FULLER, Appellant, v. GENERAL MOTORS CORPORATION et al., Appellees.
    No. 76-1998.
    District Court of Appeal of Florida, Third District.
    Jan. 10, 1978.
    Rehearing Denied Feb. 2, 1978.
    Preddy, Kutner & Hardy and Peter A. Miller, Miami, for appellant.

      Pyszka, Kessler, Adams & Solomon, Richard M. Gale, Miami, for appellees.
    Before HENDRY, HUBBART and KE-HOE, JJ.
   KEHOE, Judge.

Appellant, plaintiff below, brings this appeal from a summary final judgment dated February 25, 1976, entered by the trial court in favor of appellees Cosmopolitan Mutual Insurance Company, Stephen Burke, Martin Burke, and Mirror Wall, Inc., defendants below. We have concluded that the trial court did not err in entering the summary final judgment; therefore, it is affirmed.

Appellant contends that the trial court erred by entering the summary final judgment and by failing to grant his motion for a rehearing because at the time of entry there existed a genuine issue of material fact. Also, appellant contends that the trial court erred in granting the summary final judgment because all discovery had not been completed.

A review of the record reveals the following pertinent dates:

June 6, 1976 — appellant filed his complaint.
January 19,1976 — appellees filed their motion for summary judgment.
February 24, 1976 — trial court entered order setting hearing on motion for summary judgment for February 24,1976.
February 26,1976 — summary final judgment entered.
March 1, 1976 — appellant filed petition for rehearing of order granting summary final judgment.
September 27,1976 — hearing on appellant’s petition for rehearing.
October 1, 1976 — trial court entered order denying petition for rehearing.

Our review of the record reflects, as of the time of the hearing on appellees’ motion for summary judgment, appellant did not indicate to the trial court that any further discovery was necessary. Pursuant to Fla.R.Civ.P. 1.510(f), appellant could have moved for a continuance to complete discovery or submit affidavits in opposition to appellees’ motion for summary judgment. Further, it appears that appellant did not advise the trial court of any distress, inconvenience, surprise, disadvantage, etc., in regard to the conduct of the hearing as scheduled. Therefore, based on the record, it does not appear that the trial court committed any reversible error by proceeding with the hearing on appellees’ motion for summary judgment without permitting appellant the opportunity for any further discovery.

Appellant’s contention that a genuine issue of a material fact existed is also without merit. Appellant relies upon the deposition of Stephen Burke as creating a genuine issue of a material fact. Our review of the record in regard to this point shows that this deposition was not filed until 'September 22, 1976, after the hearing on the motion for summary judgment and after the summary final judgment was entered on February 26, 1976. We also note that the deposition was one taken in another circuit court proceeding, and that it was filed after the petition for rehearing was filed on March 1,1976. The record does not reveal that the deposition was ever brought to the attention of the trial court; if it had been, it might have created a genuine issue of a material fact. However, based on the instant record, we conclude that, as did the trial court, no genuine issue of a material fact existed so as to preclude the granting of appellees’ motion for summary judgment on February 26, 1976, and that the appellant’s petition for a rehearing on the order granting the summary final judgment was properly denied. See Fla.R.Civ.P. 1.510.

For the above stated reasons, the summary final judgment entered by the trial court is affirmed.

Affirmed.


author: PER CURIAM.

text:
    CLarence Lee WRIGHT, Appellant, v. The STATE of Florida, Appellee.
    No. 76-2256.
    District Court of Appeal of Florida, Third District.
    Jan. 10, 1978.
    Rehearing Denied Feb. 1, 1978.
    Max P. Engel and Don S. Cohn, Miami, for appellant.
    Robert L. Shevin, Atty. Gen. and Anthony Musto, Asst. Atty. Gen., for appellee.
    Before NATHAN and KEHOE, JJ. and CHARLES CARROLL (Ret.), Associate Judge.
   PER CURIAM.

Affirmed. See: Martin v. State, 194 So.2d 291 (Fla.3d DCA 1967); Walker v. State, 196 So.2d 8 (Fla.3rd DCA 1967); State v. Outten, 206 So.2d 392 (Fla.1968); Salas v. State, 246 So.2d 621 (Fla.3d DCA 1971).


author: BARKDULL, Judge.

text:
    SENTINEL ENTERPRISES, INC., Appellant, v. HARRINGTON & COMPANY, INC., Appellee.
    No. 76-2269.
    District Court of Appeal of Florida, Third District.
    Jan. 10, 1978.
    Rehearing Denied Feb. 2, 1978.
    Orr, Nathan & Williams, Miami, for appellant.
    Richard F. Ralph, Miami, for appellee.
    Before PEARSON, BARKDULL and NATHAN, JJ.
   BARKDULL, Judge.

The appellant (plaintiff in the trial court), who was in the import-expert business, received a quantity of wire coils from Japan which were delivered to the Port of Miami. The appellee, Harrington & Company, Inc., acted as its agent and stevedore. Upon the goods being unloaded they were stored in outside storage in a usual and customary place for such goods. Thirty-five coils of the wire were to be transshipped to Venezuela so, to avoid payment of duty therein, they were placed in bonded storage. The outgoing carrier for this shipper was Transytur Line; Harrington was to act only as stevedore on this shipment.

While the wire was on bonded storage pending transshipment, the wrappings caught fire resulting in damage thereto. The appellant thereupon brought the instant suit against Harrington and Transy-tur, seeking to recover these damages. Pri- or to trial, Transytur and the appellant arrived at a settlement and the action against Transytur was voluntarily dismissed. The cause proceeded to trial against Harrington. Thereafter, pursuant to Harrington’s motions for directed verdict made at the close of the appellant’s case and at the close of all the evidence, the trial court entered the final judgment for Harrington which is the subject of this appeal.

The appellant’s cause of action is predicated upon the allegation that Harrington was bailee of the goods at the time of the fire. The record conclusively refutes this allegation and, therefore, Harrington was entitled to a directed verdict.

When goods are left on the Port of Miami in excess of the free time accorded them by the Port, it is the responsibility of the agent for either the inbound or outbound carrier to collect the detention charges. The evidence in the instant action shows that after the purpose of the bailment [for which Harrington had received the goods inbound] terminated, the goods then became the responsibility of Transytur as the outbound shipper. In this connection, Harrington was the stevedore for loading the outbound goods but was not the agent for the outbound shipper. The evidence indicated that the detention charges while the goods were awaiting transshipment were the responsibility of Transytur.

Harrington’s responsibility, as the bailee of the inbound goods, had terminated prior to the date of the loss. Transytur had the responsibility for collecting the detention charges as of the date of the loss and, therefore, it was the bailee of such goods at this time and responsible as such. ITT Consumer Services Corporation v. Travelers Indemnity Company, 256 So.2d 74 (Fla. 3d DCA 1971); Hollander v. Nolan Brown Motors, Inc., 272 So.2d 9 (Fla. 3d DCA 1973); Fruehauf Corporation v. Aetna Insurance Company, 336 So.2d 457 (Fla. 1st DCA 1976).

Therefore, the judgment appealed is hereby affirmed.

Affirmed.

      . The owner of the goods picked up a substantial portion of the goods from the site where they were stored and made no objection to the fact that the goods were stored outside.

      . See footnote [3],

      . Albert Menacho, President of Transytur Line, Florida, testified as follows on cross-examination:
      ♦ * # * *
      “Q Your company at the time of this shipment as well as today were the agents for the shipping company. Is that not correct?
      “A Yes, sir.
      “Q Does that cargo get to stay there without any charge for a certain period of time? “MR. WILLIAMS: Objection.
      “THE COURT: Fourteen days.
      ^ * sfc * * *
      “THE COURT: Overruled. Go ahead.
      “Q [By Mr. Ralph] How many?
      “A Fourteen days free including Saturday and Sunday.
      “Q What would happen if the cargo is there more than that free time?
      “A It is subject to demurrage.
      “Q Who is that demurrage owed to?
      “A To the seaport.
      “Q Who collects that for the seaport?
      “A The seaport.
      “Q Who collect it?
      “A On behalf of the seaport? The steamship company.
      “Q In this case, it would be you, the agent for Transytur?
      “A Yes, sir.”
      * * * ij! * 5(8


text:
    Robert N. THOMPSON, Appellant, v. The STATE of Florida, Appellee.
    No. 76-2277.
    District Court of Appeal of Florida, Third District.
    Jan. 10, 1978.
    Rehearing Denied Feb. 2, 1978.
    Bennett H. Brummer, Public Defender and Warren S. Schwartz, Asst. Public Defender, for appellant.
    Robert L. Shevin, Atty. Gen. and Joel D. Rosenblatt and Ronald A. Dion, Asst. Attys. Gen., for appellee.
    Before PEARSON, BARKDULL and NATHAN, JJ.
   PER CURIAM.

Affirmed. See: Cunningham v. State, 239 So.2d 21 (Fla. 1st DCA 1970); Section 59.041, Florida Statutes (1975); Section 924.33, Florida Statutes (1975).


text:
    William COON, Appellant, v. The STATE of Florida, Appellee.
    No. 77-1059.
    District Court of Appeal of Florida, Third District.
    Jan. 10, 1978.
    Bennett H. Brummer, Public Defender, and Kurt Marmar, Asst. Public Defender, for appellant.
    Robert L. Shevin, Atty. Gen., and Joel D. Rosenblatt and Jose R. Rodriguez, Asst. At-tys. Gen., for appellee.
    Before PEARSON, HENDRY and BARKDULL, JJ.
   PER CURIAM.

The single point presented on this appeal urges that the verdict does not support the judgment rendered in that it shows that the defendant was found guilty of robbery by threats to use a weapon rather than a deadly weapon as described in Section 812.-13(2)(a), Florida Statutes (1975). The information properly charged the defendant, pursuant to Section 812.13(2)(a), under which he was sentenced. The verdict properly found the defendant “As to Robbery as charged in the Information: GUILTY.” The only difficulty arises because at the charge conference, it was agreed that a notation should be placed at the bottom of the verdict form by which the jury could determine whether or not a weapon was used. No place was provided in the notation for a finding of a deadly weapon. The jury did, however, definitely find that the defendant threatened to use a weapon. No motion for new trial was made upon the basis of the claimed impropriety in the form of the verdict. We conclude that no prejudicial error has been shown and that the judgment and sentence must be affirmed on the basis of the holding of the Supreme Court of Florida in Hambrick v. State, 80 Fla. 672, 86 So. 623, 624 (1920), where the court said:

“The entire record may be looked to in ascertaining the offense for which the accused is sentenced, and an erroneous recital or statement of the offense by the court in pronouncing sentence, or of the clerk in recording in the minutes of the proceedings kept by him the judgment imposed, will not vitiate the judgment when the record fully discloses the offense for which the accused was indicted, tried, and convicted.”

Affirmed.

      . The material portion of the information reads as follows:
      “ . . . did unlawfully by force, violence, assault or putting in fear, take certain property, to-wit: CASH, GOOD AND LAWFUL MONEY OF THE UNITED STATES OF AMERICA, said property being the subject of larceny and of the value of less than ONE HUNDRED DOLLARS ($100.00) the property of SAM KRAUS, as owner or custodian, from the person or custody of SAM KRAUS, and in the course of committing said Robbery, carried a deadly weapon, to-wit: A KNIFE, in violation of 812.13 Florida Statutes.”

      . “Should you find the defendant guilty of robbery it will be necessary for you to find in your verdict whether it has been proved beyond a reasonable doubt that the defendant during the commission of said crime, did:
      (Carry) (Display) (Use) (Threaten to use) or (Attempt to use) any (Weapon).
      Yes X No_
      J. B. Heillnon fsl Foreman”


text:
    Joel Lee MATTHEWS, Appellant, v. Kathleen MATTHEWS, Appellee.
    No. 77-1469.
    District Court of Appeal of Florida, Third District.
    Jan. 10, 1978.
    Bruce M. Boiko, Miami, for appellant.
    Mark J. Feldman, Miami, for appellee.
    Before HAVERFIELD, C. J., and BARK-DULL and NATHAN, JJ.
   PER CURIAM.

Affirmed. See: Reback v. Reback, 296 So.2d 541 (Fla. 3d DCA 1974); Shaw v. Shaw, 334 So.2d 13 (Fla.1976); Gordon v. Gordon, 335 So.2d 321 (Fla. 4th DCA 1976); McAllister v. McAllister, 345 So.2d 352 (Fla. 4th DCA 1977).


text:
    Raphael STEINHARDT, Appellant, v. Joan STEINHARDT, a/k/a Joan Steinhardt Dunphy, Appellee.
    No. 77-1502.
    District Court of Appeal of Florida, Third District.
    Jan. 10, 1978.
    Rehearing Denied Jan. 30, 1978.

      Sibley, Giblin, Levenson & Glaser and Michael Winer, Miami, for appellant.
    Heller & Kaplan and Robert Golden, Miami, for appellee.
    Before NATHAN and KEHOE, JJ., and CHARLES CARROLL, (Ret.), Associate Judge.
   PER CURIAM.

This interlocutory appeal by the defendant below is from an order which sustained objections to defendant’s discovery notice to produce, “without prejudice to the defendant to file such other notice as he may be advised”.

The plaintiff filed an action against her brother, seeking, as to certain properties, to restrain transfer or encumbrance thereof and to require the rents therefrom to be paid into the registry of the court; an accounting by the defendant with reference to his “stewardship” of the properties; and to set aside the prior transfers of her interests in said properties, made by plaintiff to defendant or at his direction.

It was alleged that eleven years previously, when the parties as tenants in common owned certain properties (not listed nor described), the plaintiff suffered serious injuries in an automobile accident, as a result of which she spent nine months in a hospital (except for a brief period or two); that while she was thus ill and hospitalized, the defendant had advised her it would be of benefit to plaintiff and her three children for her to transfer her interests in such properties, in trust; that she signed deeds which defendant suggested; that plaintiff could not recall the purposes for which she signed the papers, but that it was never her intention, nor was it explained to her, that she should divest herself of her interests in favor of her brother.

It was further alleged that after plaintiff recovered from her automobile accident she continued to have physical, emotional, and matrimonial problems from time to time, and that it was agreed the properties would remain in defendant’s name until plaintiff should ask for reconveyance; that defendant collected the rents from such properties during that period “and did presumably account” to plaintiff therefor; and that two years prior to the filing of the action the defendant disclaimed plaintiff’s interests in the properties and refused to pay her income therefrom or account therefor.

The defendant obtained an order postponing the filing of his answer until after discovery. Defendant noticed the plaintiff for a discovery deposition, and filed a notice to produce documents for use incident to the deposition. Plaintiff filed objections to the notice to produce, stating four grounds: (1) that the plaintiff did not have the documents [she had delivered them to her attorney]; (2) that the documents required were not set forth with specificity; (3) that the documents were privileged; and (4) that the period of time involved was of such extent that the documents required to be produced would be immaterial and could not lead to discovery evidence.

On consideration of the order appealed from in the light of the record and briefs, we hold that sustaining the objection was properly within the court’s discretion for the requests in the notice other than in Paragraphs Nos. 5, 6 and 10. As to the requests in the paragraphs other than the three just mentioned, the plaintiffs objection No. 2, as to lack of specificity, was ground for their rejection. Included in some of those paragraphs were requests for production of stated documents which would have been proper as basis for their production if the request had been limited thereto. However, the requests in which they were embodied were too inclusive and called for production of excessive and unspecified papers.

Paragraph 5, for production of any hospital records which the plaintiff had, relating to her said hospitalization; Paragraph 6, calling for deeds (which would include copies of deeds) to the properties involved; and Paragraph 10, for production of documents relating to defendant’s alleged disclaimer of plaintiff’s property interests and refusal to pay over or account for income from the properties, were not lacking in specificity and were not subject to rejection on the other grounds of objection stated by the plaintiff. Those three requests for production should not have been denied and to that extent the order was in error.

The order appealed from is affirmed in part and reversed in part, as and in the respects set out above.


text:
    HIALEAH-MIAMI SPRINGS FIRST STATE BANK, Appellant, v. B. S. ENTERPRISES, INC., Charles A. Beaudreau, Olive Beaudreau, and John B. Shoup, Appellees.
    No. 77-1619.
    District Court of Appeal of Florida, Third District.
    Jan. 10, 1978.

      Taylor, Brion, Buker & Greene and Ar~ naldo Velez, Miami, for appellant.
    Ronald C. Kopplow, Joe N. Unger, S. Melvin Apotheker, Miami, for appellees.
    Before PEARSON, BARKDULL and NATHAN, JJ.
   BARKDULL, Judge.

Plaintiff Bank appeals an order dated July 14,1977 requiring it to produce examination reports which pertain to auditor inspections by the State Comptroller’s Office and the Federal Deposit Insurance Corporation (F.D.I.C.), insofar as such documents pertain to the mortgage and loan transaction which is the basis of a foreclosure action.

The petitioner-appellant Bank contends the trial court erred in requiring it, a Florida banking corporation, to produce for inspection reports issued by the Department of Banking where Section 658.10(l)(a), Florida Statutes (1975) provides that such reports are confidential. Communications are not to be made public unless with the consent of the Department of Banking and Finance, and no consent was given by such department. Second, that the court erred in requiring plaintiff, a Florida banking corporation, to produce for inspection reports issued by the F.D.I.C. after an audit, where F.D.I.C. regulation # 309 provides that such reports are the property of the F.D.I.C. and not to be disclosed.

We affirm the right of the respondents to attempt discovery through the records sought. However, it appears that as to the State records, the court should first make an in-camera inspection in accordance with the law in effect on the date the order under review was entered. As to the Federal records, the trial court may authorize the appellees to attempt to secure production of these, but should not direct the petitioner Bank to produce Federal records.

Therefore, the order under review is affirmed as to the right of inspection, but reversed as to directing the Bank to produce these records without first (as to the State records) having an in-camera inspection by the trial judge, and (as to the Federal records) the respondent should merely be authorized to seek to obtain them from the necessary Federal officials.

Affirmed in part; reversed in part.

      . Effective July 1, 1977, the above statute was changed to read, in part, as follows:
      “(2)(a) Orders of courts of hearing officers for the production of confidential records and information shall provide for in-camera inspection by the court or the hearing officer

      . This provides, in part, as follows:
      “Notwithstanding any of the foregoing provisions, the Chairman of the Board of Directors, in his discretion and pursuant to law, may authorize the production, examination, or inspection of any records, or the disclosure of any information * * * if he shall find such action to be in the best interests of the corporation and consistent with the public interest and applicable law.”


author: MILLS, Acting Chief Judge.

text:
    DUVAL COUNTY SCHOOL BOARD, Petitioner, v. FLORIDA PUBLIC EMPLOYEES RELATIONS COMMISSION and Duval Teachers United, FEA-AFT, AFL-CIO, Respondents.
    No. FF-489.
    District Court of Appeal of Florida, First District.
    Jan. 11, 1978.

      See also, Fla.App., 346 So.2d 1087.
    Dawson A. McQuaig, Frederick J. Simpson and William Lee Allen, Jacksonville, for petitioner.
    Jane Rigler, Tallahassee, Anne M. Parker, Miami, William Powers, Tallahassee and Leonard A. Carson, North Miami, William H. Maness, Jacksonville, for respondents.
   MILLS, Acting Chief Judge.

• Petitioner, Duval County School Board (Board), seeks review of an order of the Public Employees Relations Commission (PERC) finding that the Board had committed an unfair labor practice in violation of Section 447.501(l)(a) arid (c), Florida Statutes (1975).

The complaint issued by the Acting General Counsel of PERC alleged that the Board had refused to bargain collectively in good faith by engaging in surface bargaining which included, but was not limited to, the following acts:

(1) insisting throughout the course of negotiations that certain “mandatory subjects of bargaining”, such as employee transfer, discipline and discharge, seniority, teacher preparations, sick leave bank, class size, summer school assignment, field trips, disruptive student policy, student discipline and attendance registers, were not negotiable and refusing to bargain on these issues;

(2) releasing to the press a salary proposal which had never been submitted to the Duval Teachers United (DTU) at the bargaining table; and

(3) stating, through its negotiator, that teachers had lost a 6.25% raise because their union forced negotiations to an impasse.

The Board answered the complaint by denying the allegations and asserting various affirmative defenses directed to its refusal to negotiate on the subjects termed “mandatory subjects of bargaining”. The case was tried before a hearing officer, a recommended order was issued, and exceptions to the recommended order were filed by the Board. After considering the record, briefs, and oral arguments, PERC entered its amended order finding the Board guilty of violating Section 447.501(l)(a) and (c).

The parties met on 22 April 1976 to begin collective bargaining. A few days before the meeting Superintendent Sang had publicly attacked Bates, the union’s chief negotiator, as an “outside agitator and hired gun” and accused the DTU of “coming to the table to pick the pockets of the taxpayers”. At the first session Bates referred to the statement and mentioned, that both sides should refrain from making such attacks in the future because mutual trust was essential to the negotiation process. Negotiations then commenced with a discussion of ground rules.

The first ground rule proposed was: “Each negotiating session shall be scheduled at a mutually agreeable date, time and place which shall be determined at each preceding session.” Bates expressed reservations about daily scheduling because of another commitment to negotiate an agreement in St. Louis, Missouri, but finally agreed with the proposed scheduling rule. The parties agreed to meet on 28, 29 and 30 April.

On 28 April the language of the ground rules was finalized. Although approximately 80% of the DTU proposals had been submitted by that date, the Board’s chief negotiator, Andrew Knight, refused to bargain on those proposals until 10 May because the ground rules stated that the parties’ final proposals were to be submitted by 10 May and all of the DTU’s proposals had not been submitted.

DTU submitted its remaining proposals on 10 May; the Board submitted five proposals to DTU on 11 May. At the 12 May meeting, the Board stated that the five proposals constituted its entire response to DTU’s package. At this meeting the parties agreed to the Purpose and Agreement clauses submitted by the Board and placed proposals on the agenda (including Discipline and Discharge, Tenure, Personnel Piles, Reprimand or Criticism, Grade Reporting, Personal Rights, Academic Freedom and Transfer) for the following day.

On 13 May DTU attempted to negotiate on Discipline and Discharge, Personal Rights, Academic Freedom and Transfer but was informed that these subjects were “inherent management rights” and non-negotiable. The Board’s counter-proposals on the other agenda items tracked the language of the previous year’s contract. Bates tried to set a calendar for future sessions, reminding the Board of negotiations in St. Louis, but Knight refused because the ground rules stated that scheduling must be determined at the preceding meeting. Bates attempted to secure a commitment that the Board would meet on Saturday, 15 May, since Bates had a plane reservation for 14 May that he would cancel if negotiations could be held on Saturday. Knight responded that it would “probably be okay” but that he couldn’t make a firm commitment until Friday because the ground rules precluded such a commitment. The parties agreed to meet on Friday, 14 May.

Near the close of the 14 May meeting, the Board declined to meet on Saturday, 15 May. It was then too late for Bates to depart on his scheduled flight. The next session was held on 19 May.

During the preceding meetings, the attempts by DTU to place those items labeled “non-negotiable” by the Board on the agenda were frustrated by the Board’s insistence that the agenda had to be “mutually agreed to”. The ground rule stated: “Agendas for each session shall be established at the preceding session.” The DTU pointed out that the rule specifically left out the words “mutually agreed on”, and that either party could place anything on the agenda that it wished to discuss; however, the Board continued to prepare the agenda, continued to leave off the agenda the items DTU wished to discuss, and refused to discuss those items at the negotiating sessions because they were not on the agenda.

The 19 May meeting ended with the DTU saying that it would return to the bargaining table when the Board’s counter-proposal package was received.

On 28 May Knight and the President of DTU agreed over the phone to resume bargaining on 3 June. The parties met on 3 June and the Board presented the expired contract as its counter-proposal package. Knight stated that the Board team was there only to transmit its package and not to bargain since no agreement to meet on that date had been made pursuant to the ground rules and no “mutually agreed to” agenda had been established. The parties agreed to meet on 8 June.

On 8 June Bates advised the Board’s team that DTU was unavailable for negotiations from 19 June to 22 June because of schedule conflicts.

Thereafter the parties met daily from 14 through 19 June. During this period one agreement was reached on a “salesman” article. Throughout this period the Board contended that the issues of Summer School Assignment, Student Discipline, and a Fair Treatment Clause were either “inherent management rights” or that they were matters which were non-negotiable because they “infringed student rights”. Other items such as Disruptive Student Policy, School Nurse, and Evaluations were also labeled non-negotiable by respondent. During the 18 June session, the Board’s team stated that if DTU did not meet on Saturday, 19 June, the Board might have to file an unfair labor practice charge. Bates can-celled his conflicting meeting and the parties met again on 19 June.

The entire discussion on 19 June centered around the grievance procedure proposal. Knight, while admitting that employees were required to follow Board rules and policies, indicated that the Board would not put those policies into the contract. Bates informed the Board that DTU could meet Wednesday, 23 June, and inquired whether respondent would be available. Knight responded that the Board’s team would be available. The DTU team, believing that a meeting was scheduled for 23 June, arrived for the session at 9:00 A.M. The Board’s team did not appear.

Pursuant to a phone conversation between the DTU president and Knight, a meeting was scheduled for 24 June. The DTU president testified he advised Knight that DTU’s team wanted to commence serious bargaining at that session; however, a memo received from Knight stated that the 24 June meeting was for the sole purpose of setting a date, time and agenda.

In accordance with the memo, the Board refused to bargain at the 24 June session insisting that to do so would violate the ground rules since no agreement had been reached at the prior meeting. After some exchange of words, Knight suggested that the meeting be adjourned for an hour and official reconvened after agreement pursuant to the ground rules.

The Board’s second salary counter-proposal was submitted on 1 July. (The first counter-proposal on salary was included in the Board’s “package counter-proposal”, i. e. the old contract, submitted 3 June.) It was the existing salary schedule plus $100 across the board. Geiger testified that he and other DTU members had heard of this offer on the radio the previous Saturday, 26 June.

Negotiations were carried on during the week of 5 through 9 July without result. The DTU President testified, without contradiction, that Superintendent Sang had released to the press a copy of what he termed to be “non-negotiable issues”. On 8 July DTU asked the Board team for the list, and it was advised that no such list existed. However, after pressing for approximately three to four hours, Mr. Knight produced a list which coincided with the list that had been distributed to the press. The list contained items which the Board indicated it would refuse to bargain on. On 9 July, after the DTU’s team was unable to obtain counter-proposals from the Board, DTU declared an impasse.

Bargaining resumed on 3 August, at which time DTU demanded that the Board place on the table a salary schedule which had been released to the press on 22 July. The Board refused. The demand was renewed at bargaining sessions on 4 and 5 August. The salary schedule was finally submitted by the Board on 10 August.

During the 10 August session, Bates asked whether the Board’s team had the authority to negotiate issues identified as “non-negotiable” by the Board. Kennedy, who replaced Knight as chief negotiator, replied that he had no authority to negotiate those issues and stated that while there was some overlap between management rights and working conditions, he refused to negotiate the “overlap” areas.

On 16 August DTU requested that the Commission petition the circuit court for injunctive relief in this case pursuant to Section 447.503(3)(b) of the Act.

A special master hearing was held on 20 August. (The special master’s report was received by the parties on 1 September.)

On 21 August following breakdown of negotiations, Judge John McNatt of the Circuit Court in Duval County ordered the parties to resume collective bargaining.

At the 21 August meeting, the parties appeared to reach agreement on the language for a Discipline and Discharge article. However, after agreeing, the Board’s team indicated it would not include the article in the collective bargaining agreement, but would append it to the contract so that problems arising under that article would not be subject to the contract’s grievance procedure. The Board offered a transfer counter-proposal for inclusion in the contract, if DTU would agree to appending the Discipline and Discharge provision. The Board had previously refused to discuss transfer, calling it an “inherent management right”. DTU rejected the package offer.

On 27 August the parties returned to the Circuit Court to report on the progress of negotiations.

No further negotiations were held after 9 September. On that date a final package offer was made to DTU which was essentially the same package offer of 21 August with the Transfer/Discipline and Discharge proposal included. At the same time this package was offered, the Board was rejecting the special master’s report in toto.

The Board contends that the determinative issue in this case is whether the subjects labeled non-negotiable by the Board are mandatory subjects of bargaining. We do not agree. The complaint did not allege that the Board’s refusal to bargain over certain subjects was, in and of itself, an unfair labor practice. The complaint charged that the Board “. . . did refuse and continues to refuse to bargain collectively in good faith ... by engaging in a course of conduct of surface bargaining . . ..”

The requirement of bargaining in good faith imposes upon the employer and the employee organization an obligation to come to the bargaining table with an open mind and a sincere desire to reach an agreement. N. L. R. B. v. Boss Mfg. Co., 118 F.2d 187 (7th Cir. 1941). The legislature has recently defined good faith bargaining as including “. . . an obligation for both parties to actively participate in the negotiations with an open mind and a sincere desire, as well as making a sincere effort to resolve differences and come to an agreement.” Chapter 77-343, § 6, Laws of Florida.

Whether a party bargains in good or bad faith is a factual determination based on the circumstances of the particular case. N. L. R. B. v. Truitt Manufacturing Co., 351 U.S. 149, 76 S.Ct. 753, 100 L.Ed. 1027 (1956). When a party has been charged with failing to bargain in good faith, the overall conduct of the parties throughout the course of negotiations must be considered. School Board of Escambia County v. P. E. R. C., 350 So.2d 819 (Fla. 1st DCA 1977). Therefore, the determinative issue before us is whether there was competent substantial evidence before the Commission to support its finding that the Board failed to bargain in good faith. Section 120.68(10), Florida Statutes (1975).

Good faith is a matter of intent; it is a state of mind. N. L. R. B. v. Stanislaus Implement and Hardware Co., 226 F.2d 377 (9th Cir. 1955). Usually, a party’s state of mind can be determined only by inference from the party’s conduct. Was the employer’s (or union’s) conduct consistent with an “open mind” and “a sincere desire . to resolve differences and come to an agreement”? In this case, the Commission not only had evidence of the Board’s state of mind in the form of its external conduct, which would be sufficient in and of itself to support the Commission’s finding, but had before it a memorandum, written by John Kennedy to Superintendent Sang prior to the beginning of negotiations concerning Bates, DTU’s chief negotiator, which contained the following:,

“His main weakness is that he has a low frustration threshold himself, especially when he is told that certain issues aren’t negotiable, e. g. class size, hours which teachers work, and number of periods in a school day. In this respect the fact that our negotiations are open to the press may be an advantage to us because Mr. Bates may make statements which will make the DTU appear unfavorable when reported in the press.
“The best way to handle him is to establish firm ground rules, prior to negotiations. . . . If he violates these ground rules during negotiations, he should be firmly reminded of the rules with the press present. If he continues to violate them after this warning, the school board team should walk out on him a time or two until he gets the message. However, to repeat, this last step should be taken only after publicly warning him so that the press will not interpret the school board team’s action as refusing to negotiate.
“Finally, as a matter of strategy it would probably be good to hang some label such as ‘hired gun’ or ‘outside hit man’ on him, if such can be done. He is sensitive to this kind of approach, and it may help to give Duval County teachers the feeling that national union interest [sic] are being negotiated rather than their own local interests.”

Clearly, the intent of the Board, as reflected by its conduct and the above plan of action, was to avoid its statutory responsibility to bargain in good faith. We hold that there was competent substantial evidence to support PERC’s finding that the Board failed to bargain in good faith.

Section 447.503(4)(a), Florida Statutes (1975), states:

“If, upon consideration of all the evidence taken, the commission finds substantial evidence that an unfair labor practice has been committed, it shall . . . issue and cause to be served an order requiring the respondent party to cease and desist from the unfair labor practice and to take such positive action ... as will effectuate the policies of this part.”

In this case, the Commission ordered the Board to meet with representatives of the DTU and “. . . bargain in good faith with respect to the monetary benefits sought by the bargaining representative for fiscal year 1976-77”. The Board argues that PERC lacks jurisdiction to order the Board to negotiate with the DTU after negotiations have gone through the impasse procedure provided by Florida Statute 447.-403. In its order the Commission stated: “An employer will not be permitted to engage in a course of conduct tantamount to a refusal to bargain and subsequently be allowed to ‘cleanse’ its illegal activity through the statutory impasse procedures.” It is clear that if impasse proceedings could be used by an employer to circumvent its duty to bargain in good faith, the purpose of the Act would be defeated. We therefore hold that PERC had the authority under Section 447.503(4)(a) to order the Board to bargain in good faith over monetary benefits for 1976-77.

The Public Employees Relations Act is the law of our State. Whether we agree with it or not, we must comply with it. If changes are desired, they must be made by the Legislature.

Every public employer, public employee and union must exert every effort to cooperate with each other and to build respect for each other. Collective bargaining is not and should not be a game. Representatives of the public employer and the union should and must be able to sit down together and negotiate an agreement which will be beneficial and fair to all parties. There is too much at stake to play games. Idealistic? Perhaps. Too much to ask? We think not.

The Board also urges that Section 447.-401, Florida Statutes (1975), which provides for binding arbitration of grievances, is unconstitutional. This issue is not properly raised by this case, therefore we do not address it.

Accordingly, the order of PERC is affirmed.

SMITH and ERVIN, JJ., concur.


text:
    William Ernest BARNES, Appellant, v. STATE of Florida, Appellee.
    No. 77-1050.
    District Court of Appeal of Florida, Second District.
    Jan. 11, 1978.
    Jack 0. Johnson, Public Defender, and Paul C. Helm, Asst. Public Defender, Bar-tow, for appellant.
    Robert L. Shevin, Atty. Gen., Tallahassee, and William I. Munsey, Jr., Asst. Atty. Gen., Tampa, for appellee.
   PER CURIAM.

The judgment appealed is affirmed. We agree, however, with appellant that there is an imperfection in his sentence. The phrase “at hard labor” is improper. Brooks v. State, 349 So.2d 794 (Fla.2d DCA 1977). We remand the case for correction of sentence and the appellant need not be present at resentencing.

BOARDMAN, C. J., and OTT and DAN-AHY, JJ., concur.


author: RYDER, Judge.

text:
    George McFARLEY, Jr., Appellant, v. Lillie B. McFARLEY, Appellee.
    No. 77-1214.
    District Court of Appeal of Florida, Second District.
    Jan. 11, 1978.
    I. W. Williams of Williams & Milton, St. Petersburg, for appellant.
    Richard J. McCrory of Owen & McCrory, St. Petersburg, for appellee.
   ON PETITION FOR REHEARING

RYDER, Judge.

In an opinion filed October 26, 1977, this court vacated the order appealed from and remanded the cause to the trial court with directions to dismiss the action.

However, upon petition for rehearing filed by appellee, the court has reviewed the entire record and file herein and recedes from said opinion and substitutes the present opinion therefor.

On March 8, 1976, appellant, George McFarley, Jr., filed a petition for dissolution of marriage in the Circuit Court. His wife, the appellee in the case, filed an answer to the petition on April 26, 1976, asking that the petition be denied and requesting support for herself and her children. Additionally, and approximately one month later, she filed a motion for temporary support and the court then entered an order for temporary relief.

On June 13, 1977, Mr. McFarley filed a voluntary dismissal to his petition for dissolution. Several days later, the trial court entered an order on all pending motions which increased the amount of temporary support and granted Mrs. McFarley leave to file a counterpetition. This appeal ensued.

Mr. McFarley argues that the trial court erred in granting his wife’s motions on June 22 when, on June 13, he had filed a notice of dismissal pursuant to Fla.R.Civ.P. 1.420(a)(1). The wife contends that her answer to the husband’s petition for dissolution and her motion for support were counterclaims which prevent voluntary dismissal under Fla.R.Civ.P. 1.420(a)(1). She cites Fla.R.Civ.P. 1.420(a)(2), and Cooper v. Cooper, 194 So.2d 278 (Fla.2d DCA 1976) in which this court held that a motion for custody of the children of the marriage, for permanent alimony, and for permanent child support was a counterclaim for the purposes of Rule 1.420(a)(2).

In .the opinion of the court filed October 26, 1977, we erroneously found Cooper, supra, inapplicable to the case because we had considered the wife’s petition for custody of the children and alimony to be that of temporary alone. Upon consideration of the wife’s petition for rehearing and a more detailed study of the actual documents filed by wife, we have found that her answer to the petition for dissolution of marriage, although not artfully drawn, did in fact, in paragraph eight of the answer and in paragraph two of the prayer, ask for both temporary and permanent support for the minor children and alimony for herself. Also in paragraph five of her answer, the wife sought custody of her children.

Consequently, we recede from the opinion of October 26, 1977 and find that Cooper, supra, does apply herein. Thus, we consider the claims alluded to above as satisfying the test of Cooper and constituting a counterclaim which prevents a voluntary dismissal by her husband. See also Duke v. Duke, 109 Fla. 325, 147 So. 588 (1933).

For the reasons we have stated, we affirm the trial court’s order on all pending motions and remand the case for proceedings not inconsistent with this opinion.

SCHEB, Acting C. J., and OTT, J., concur.


author: HUBBART, Judge.

text:
    STATE of Florida ex rel. Robert L. SHEVIN, as Attorney General and Richard E. Gerstein, as State Attorney for the Eleventh Judicial Circuit of Florida, Relators, v. Philip T. WEINSTEIN, as Appointed Acting State Attorney, and the Honorable H. Paul Baker, as Judge of the Circuit Court of the Eleventh Judicial Circuit of Florida, Respondents.
    No. 77-1566.
    District Court of Appeal of Florida, Third District.
    Jan. 12, 1978.

      Robert L. Shevin, Atty. Gen., and Joel D. Rosenblatt, Asst. Atty. Gen., Richard E. Gerstein, States Atty., and Paul M. Rash-kind, Asst. States Atty., for relators.
    Cunningham & Weinstein, Miami, for respondents.
    Before HAYERFIELD, C. J., and HEN-DRY and HUBBART, JJ.
   HUBBART, Judge.

This is an original petition for a writ of quo warranto and prohibition filed by the Attorney General of Florida and the State Attorney for the Eleventh Judicial Circuit of Florida challenging the authority of the respondent Philip T. Weinstein to represent the State of Florida in an interpleader action before the United States District Court for the Southern District of Florida. Mr. Weinstein bases his authority to represent the State of Florida in such federal action on a court order appointing him as an acting state attorney, which order was entered by the respondent Honorable H. Paul Baker as Judge of the Circuit Court for the Eleventh Judicial Circuit of Florida. This court entered a rule to show cause why an alternative writ of quo warranto should not issue. Subsequent thereto, the respondents Weinstein and Baker have filed a motion to dismiss and answer to the petition for writ of quo warranto as well as a brief in opposition to the said petition.

We have jurisdiction to entertain the instant proceeding as a petition for a writ of quo warranto. The critical facts essential to our decision are undisputed and the authority of an acting or assigned state attorney must be tested in direct proceedings by quo warranto, not by direct appeal as contended by the respondents. Austin v. State ex rel. Christian, 310 So.2d 289 (Fla.1975); Hart v. State, 144 Fla. 409, 198 So. 120 (1940); Carey v. State, 349 So.2d 820 (Fla.3d DCA 1977); State v. Viscito, 349 So.2d 196 (Fla.3d DCA 1977); Article V, Section 4(b)(3), Florida Constitution; Fla.App. Rule 4.5(e). Accordingly, the respondents’ motion to dismiss the petition herein for lack of jurisdiction is denied.

The central issue raised by the petition and return is whether a judge of a circuit court in Florida has the inherent or statutory authority under Section 27.16, Florida Statutes (1975), to appoint an acting state attorney to represent the State of Florida in an action pending before a federal court. We hold that a circuit court judge lacks such authority and issue the writ of quo warranto. Only the Attorney General of Florida may represent the State of Florida in a federal court action.

The facts which give rise to the present controversy are as follows. On February 9, 1977, subsequent to the termination of a criminal prosecution before the Circuit Court for the Eleventh Judicial Circuit of Florida, the Honorable H. Paul Baker as presiding judge at the trial entered an order disposing of certain monies seized by the police from the defendants in the case. A portion of these monies were escheated to the state and the balance was given to the defendants and the defendants’ attorney. At the request of the State, however, the judge stayed his order with reference to that part of the monies which pertained to a possible perjury charge which the state was then investigating against one of the defendants in the case.

On March 4, 1977, the respondent judge entered an order appointing the respondent Philip Weinstein as Acting State Attorney for the Eleventh Judicial Circuit of Florida for the sole purpose of representing the State of Florida in the investigation of all matters concerning a petition filed by the defendants in the case for the issuance of a rule to show cause why certain parties should not be held in indirect criminal contempt of the court for willful disobedience of the court’s aforementioned February 9, 1977 order. The March 4, 1977, order was entered with the acquiescence and at the behest of the State Attorney for the Eleventh Judicial Circuit acting through his executive assistant based on conflict of interest grounds because one of his assistants was apparently involved in the alleged contempt of court. The respondent Weinstein was authorized to prepare a rule to show cause for the court’s signature, if appropriate, and to thereafter prosecute the matter before the court. The respondent judge’s authority to enter such an order is not questioned by these proceedings as such an order was eminently proper. Section 27.16, Florida Statutes (1975); Fla.R.Crim.P. 3.840(a)(4).

On April 4, 1977, the respondent judge entered his third order relevant to this cause which broadened the respondent Weinstein’s authority as acting state attorney as follows:

“ORDERED that the HONORABLE PHILIP T. WEINSTEIN continue in his capacity as an Acting State Attorney by virtue of this Court’s order of March 4, 1977 and is hereby authorized and directed under the authority of Chapter 27.02 F.S. and Chapter 27.05 F.S. to represent all interests of the State of Florida concerning certain money and/or property which this Court is advised is presently in the registry of the United States District Court for the Southern District of Florida, said money and/or property being the subject matter of Case No. 77-209-Civ-JE.”

The monies and property referred to in this order involved the same monies and property upon which the court had entered and partially stayed its February 9, 1977 order and which by then rested and still rests in the registry of the' United States District Court for the Southern District of Florida in a pending interpleader action. It is this order which is challenged by these quo war-ranto proceedings.

The law is well-settled that a circuit court judge in Florida has the inherent authority, as well as the statutory authority under Section 27.16, Florida Statutes (1975), to appoint an acting state attorney to act as a prosecuting officer for the State of Florida in a particular case or cases pending before the said circuit court judge where inter alia the state attorney for that circuit refuses or shall be unable or disqualified to act. Such an acting state attorney shall discharge the duties imposed by law on the state attorney in that particular case or cases. This authority, however, is confined solely to appointments in cases pending before the circuit court making the appointment, not to actions pending before a federal court. State ex rel. Harris v. McCauley, 297 So.2d 825 (Fla.1974); Kirk v. Baker, 224 So.2d 311 (Fla.1969); Taylor v. State, 49 Fla. 69, 38 So. 380 (1905); Dade County v. McCrary, 260 So.2d 543 (Fla.3d DCA 1972). Only the Attorney General of Florida has the authority to represent the State of Florida in an action pending before a federal court in Florida. Section 16.01, Florida Statutes (1975). A state attorney or an acting state attorney has no such authority because their powers extend solely to representing the state in actions pending before a Florida court. Sections 27.01, 27.05, 27.16, Florida Statutes (1975).

Measured by these standards, it is clear that the respondent Weinstein has no authority to represent the State of Florida as an acting state attorney in the interpleader action pending before the United States District Court for the Southern District of Florida. The April 4, 1977 order of the respondent circuit court judge herein purporting to so appoint the respondent Wein-stein is invalid for two reasons: (1) the appointment pertains to a case which was not pending before the circuit court judge who made the appointment but is presently pending before a federal court judge, (2) the appointment conferred on the acting state attorney authority not enjoyed by the state attorney whom he replaced, namely, the power to represent the State of Florida in a federal court action.

The writ of quo warranto shall, accordingly, issue divesting the respondent Philip T. Weinstein from representing the State of Florida in the pending federal interpleader action. The Attorney General of Florida has the sole and exclusive authority to represent the State of Florida in such action. Mr. Weinstein’s authority to represent the State of Florida as an acting state attorney in the pending contempt action before Judge Baker, however, is unaffected by this decision.

Writ granted.


text:
    Junior Wilnon BIRD, a/k/a Wilbur Byrd, Appellant, v. STATE of Florida, Appellee.
    No. GG-40.
    District Court of Appeal of Florida, First District.
    Jan. 13, 1978.
    Rehearing Denied Feb. 7, 1978.

      Michael J. Minerva, Public Defender, and Margaret Good, Asst. Public Defender, and Wilbur Byrd, in pro per., for appellant.
    Robert L. Shevin, Atty. Gen., and Patti Englander, Asst. Atty. Gen., for appellee.
   PER CURIAM.

Appellant brings this appeal to contest the trial court’s denial of his motion filed under Fla.R.Crim.P. 3.850. The appeal stems from the following facts: In.April, 1962, appellant was charged with unarmed robbery. In May, 1962, appellant, who was under 21 years of age, was present in court with his uncle, Willie Hamilton, and pled guilty as charged. He was sentenced to five years in prison. In August, 1964, appellant filed a motion to vacate, alleging that his plea was entered without benefit of counsel and that he did not voluntarily waive his right to counsel. In October, 1964, the court vacated the judgment and sentence and ordered appellant to be returned to Madison County for trial. In October, 1964, still an unmarried minor, appellant appeared in court with his counsel, entered a plea of guilty, and was sentenced to five years with credit for time served. The clerk’s minute book contains the following notation concerning the second proceeding:

“The defendant Wilbur Byrd, being under the age of 21 years, his uncle next of kin, Willie Hamilton was notified of the proceedings. He did not appear.”

In February, 1977, appellant, who has completed the above sentence and who is now incarcerated for other offenses, filed the Rule 3.850 motion seeking to have the 1964 judgment and sentence vacated, alleging that the court did not comply with provisions of § 932.38, Fla.Stat. (now § 925.07), concerning notification of parents or guardian when a minor is charged with an offense. Appellant requested an evidentiary hearing to determine whether his parent or guardian was notified prior to the 1964 proceeding. In May, 1977, the trial court denied appellant’s motion on the ground that the sentence would have been fully served on or before May 3, 1967.

We affirm the denial of the Rule 3.850 motion but on different grounds. A prisoner serving any prison sentence is “in custody” for the purposes of Rule 3.850. Lawson v. State, 231 So.2d 205 (Fla.1970). Thus, although appellant has completed the sentence he attacks, the fact that he is presently serving even an unrelated sentence gives him standing .to move in the trial court under Fla.R.Crim.P. 3.850 for relief from the attacked sentence.

In an Anders brief, the public defender appointed to represent appellant submitted that although the trial court denied the motion on improper grounds, it did have a valid ground on which to issue a summary denial. The public defender asserted that although appellant’s 3.850 motion on its face appears sufficient for relief, the record conclusively refutes the motion allegations with the minute book notation that a guardian was notified but did not appear. The public defender argued that appellant made no affirmative allegation that the record was incorrect. Therefore, the public defender argues, the record is presumptively correct, and the court properly denied the motion. We disagree with the reasoning. Appellant alleged in his motion that his parents or guardian were not notified. Since the record stated differently, impliedly appellant was asserting that the record was incorrect.

In a pro se brief, appellant urges as grounds for reversal that the record did not contain tangible proof, such as a return receipt, that his parent or guardian received notice of the 1964 proceeding, in accordance with § 925.07, Fla.Stat. However, we need not consider the adequacy of any notice sent to the parents or guardian in 1964. As the Supreme Court ruled in Pitts v. State, 88 Fla. 438, 102 So. 554 (1924), formal service of notice to the parent or guardian is not required when the record shows that the parent or guardian had actual notice. The record in the instant case shows that Willie Hamilton, appellant’s uncle, was present in court with appellant when appellant pled guilty in 1962. The record thus conclusively shows that Hamilton had actual notice of the charges against appellant.

Once the parent or guardian has received due notice, further notice may not be required. In Falagon v. State, 186 So.2d 804 (Fla. 4 DCA 1966), due notice was given to defendant Falagon’s parents prior to Fal-agon entering a plea of guilty. His parents were present in court with him on plea day. That judgment and sentence were later vacated, and a new trial was granted on right to counsel grounds. Falagon thereafter appeared in court with court appointed counsel, again entered a plea of guilty, and was adjudged guilty and sentenced. He then filed a 3.850 motion to vacate that second judgment and sentence, alleging that his parents were not notified of the second arraignment, plea, judgment, and sentence. The court found that the purpose of § 932.-38, Fla.Stat. (now § 925.07, Fla.Stat.), is to “furnish a safeguard to unmarried minors accused of crime in order that such minor’s parents may have the opportunity to come to the assistance of the accused minor.” The court in Falagon held that after notice is properly given, “the minor may be arraigned, tried, convicted, or sentenced at any time after a reasonable period from the notice including second or successive proceedings on the same charges without any further notice.” In the Falagon case, four years had intervened between the time the notice was given and the second arraignment and plea. The court found the beneficial purpose of the statute had been satisfied since the parents had been notified of the charges and had had ample opportunity to exercise the safeguards the statute encourages. Likewise, in the instant case, we find that the beneficial purpose of § 925.07 was satisfied since the record shows appellant’s uncle, Willie Hamilton, possessed actual notice of the charges against appellant.

AFFIRMED.

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


author: GRIMES, Acting Chief Judge.

text:
    John N. FERBER, Appellant, v. STATE of Florida, Appellee.
    No. 77-709.
    District Court of Appeal of Florida, Second District.
    Jan. 13, 1978.
    Rehearing Denied Feb. 2, 1978.

      Dennis J. Plews of Law Offices of Robert H. Schultz, Bradenton, for appellant.
    Robert L. Shevin, Atty. Gen., Tallahassee, and William I. Munsey, Jr., Asst. Atty. Gen., Tampa, for appellee.
   GRIMES, Acting Chief Judge.

Appellant was charged with six counts of larceny by a public servant in violation of Section 812.021, Florida Statutes (1975). A judgment of acquittal was entered on one count and the jury returned not guilty verdicts on three others. The jury did not initially return a verdict of any kind with respect to Counts II and IV. Consequently, the court made the following statement to the jury:

“Ladies and Gentlemen you have been given an extremely difficult legal task, and you have done beautifully with it; however, with Count Two, which is the Sony color TV, we have a guilty plea on two charges. You must pick one of these charges. It is either larceny by a public servant or attempted larceny, and with Count Four, you have guilty of larceny by a public servant and guilty of petty larceny. You have to pick one of those. So, I am going to have you retire to the Jury room to pick out one of these two verdicts for Count Two, and one of these verdicts for Count Four.”

The jury then found the appellant guilty as charged on Count II and guilty of the lesser included offense of petit larceny on Count IV.

The appellant argues that the quoted statement was tantamount to an instruction directing the jury to return verdicts of guilt on the remaining two counts. Recognizing that no objection was made, he argues that the error was of such magnitude as to constitute fundamental error. We are compelled to agree.

In the courtroom setting the words of the trial judge are properly given great weight by the jurors. It is particularly important for the judge not to say anything which might be interpreted as being an indication of the court’s opinion of the case. Mathis v. State, 45 Fla. 46, 34 So. 287 (1903).

Assuming the foregoing comment is accurately transcribed, and no one has suggested to the contrary, we are confident that the court did not mean to say what was actually said. No doubt the court intended to advise the jury to continue its deliberations so as to try to reach a verdict on the two counts on which no verdicts had yet been rendered. However, the fact remains that the jurors could have reasonably believed that they were being instructed to return verdicts of guilt on Counts II and IV. Therefore, we cannot say that this appellant has been afforded due process, and in the interest of justice we find it necessary to set aside the judgment and remand for a new trial.

We also have serious doubts about the state’s position that it need not allege and prove the value of the public property stolen in order to seek a felony conviction for larceny by a public servant, but in view of our disposition of this appeal, we need not reach the question at this time.

REVERSED.

SCHEB and DANAHY, JJ., concur.


text:
    Alex LAMAZARES, Appellant, v. Felix Adolfo VALDEZ and Integon Insurance Company, a corporation licensed to do business in the State of Florida, Appellees.
    No. 76-1456.
    District Court of Appeal of Florida, Third District.
    Jan. 17, 1978.

      Grover, Ciment, Weinstein & Stauber, Miami Beach, and Allan S. Friedman, Miami, for appellant.
    Carey, Dwyer, Cole, Selwood & Bernard and Steven R. Berger, Miami, for appellees.
    Before HAVERFIELD, C. J., HENDRY, J., and DREW, E. HARRIS (Ret.), Associate Judge.
   DREW, E. HARRIS (Ret.), Associate Judge.

In the trial of this automobile collision case the trial judge, over appropriate and timely objections of the plaintiff, allowed defendant to introduce evidence of a psychologist and a psychiatrist that the defendant was untruthful and that he was liable to make a mistake or misjudgment in his driving ability to re-act to accident circumstances. In doing so, the trial court committed reversible error.

Defendant below, the appellee here, defends the action of the trial judge, asserting in his brief:

“It is submitted that the science of psychology has advanced far enough to allow its use in litigation when the trial court determines in its broad discretion that such testimony is competent and relevant. See, Seaboard Coast Line Railroad Co. v. Hill, 250 So.2d 311 (Fla. 4th DCA 1971); United States v. Hiss, 88 F.Supp. 559 (S.D.N.Y.1950), cert. den. 340 U.S. 948 [71 S.Ct. 532, 95 L.Ed. 683] (1951); Ingalls v. Ingalls [257 Ala. 521], 59 So.2d 898 (Ala.1952); State v. Burno [200 N.C. 267], 156 S.E. 781 (N.C.1931); Ellarson v. Ellarson [198 App.Div. 103], 190 N.Y.S. 6 (App.Div.1921); People v. Cowles [246 Mich. 429], 224 N.W. 387 (Mich.1929); Taborsky v. State [142 Conn. 619], 116 A.2d 433 (Conn.1955); State v. Armstrong [232 N.C. 727], 62 S.E.2d 50 (N.C.1950); Koehler v. Kline [290 Minn. 485], 185 N.W.2d 539 (Minn.1971).”

Appellee cites two Florida cases which he says supports his position, viz. Reese v. Naylor, 222 So.2d 487 (Fla. 1st DCA 1969) and Seaboard Coast Line v. Hill, 250 So.2d 311 (Fla. 4th DCA 1971). In the Reese case, the holding was that a qualified clinical psychologist was competent to testify as to his diagnosis of a person’s mental condition. And, in the Seaboard case, the holding was that the psychologist there was qualified to testify that an average driver would not have seen a train under the facts there related in time to avoid a collision. It should be noted however, that in that case the expert had been qualified in the understanding of human reactions in environments of darkness, fog, sound deficiency, etc. at the time of a particular accident. We find nothing in these cases which can give comfort or support to appellees’ argument. Nor are we yet ready to accept the conclusion reached in the scholarly articles cited by appellee.

The admission of evidence of the nature set forth above is a clear invasion of the province of the jury or the court when sitting as a trier of fact. To allow such evidence would open a new area of speculation in the search for the truth, complicate the issues now and historically entrusted to the triers of fact, and add great costs to litigation which is already approaching prohibitive figures.

The other assignments have been examined by us and are found to be without merit.

Reversed and remanded for a new trial.


author: PEARSON, Judge.

text:
    Jack Junior FLOWERS, Appellant, v. The STATE of Florida, Appellee.
    No. 76-1727.
    District Court of Appeal of Florida, Third District.
    Jan. 17, 1978.
    Bennett H. Brummer, Public Defender, and Irv J. Lamel, Asst. Public Defender, for appellant.
    Robert L. Shevin, Atty. Gen., and Linda Collins Hertz and Jose R. Rodriguez, Asst. Attys. Gen., for appellee.
    Before HAVERFIELD, C. J., and PEARSON and HENDRY, JJ.
   PEARSON, Judge.

The single point presented on this appeal is whether the trial judge erred in adjudging the defendant competent to stand trial because the burden of proving his incompetency was placed on the defendant. The State has accepted the appellant’s statement of facts which is, in part, as follows:

On January 15, 1975, an indictment was filed charging the defendant with first degree murder. A plea of not guilty was entered.

On March 24, 1975, several qualified experts, including the Forensic Unit of Jackson Memorial Hospital, were appointed to examine the defendant to determine his competency to stand trial.

A competency hearing was held on May 7, 1975. The evidence of the defendant’s competency to stand trial was conflicting. One of the doctors testified that as a result of his examination of the defendant, it was his opinion that the defendant was mildly, mentally retarded. Concerning the defendant’s ability to understand the court processes, the doctor stated:

“Although he has the ability to understand many things, he does not have full ability to understand all of the things that would be required for his defense.”

At the conclusion of the hearing, the court adjudged the defendant incompetent to stand trial and committed him to the Division of Mental Health.

On November 14, 1975, the defendant was ordered returned from South Florida State Hospital to the Dade County Jail. See Fla.R.Crim.P. 3.210(a)(3). On January 7, 1976, a second competency hearing was held. At the commencement of a hearing on February 6, 1975, the prosecution stipulated that retardation is a form of incompetency under Fla.R.Crim.P. 3.210. At the conclusion of the hearing, the court adjudged the defendant competent to stand trial.

In every case, the defendant enters the courtroom with a presumption of sanity. Child v. Wainwright, 148 So.2d 526 (Fla.1963). A proceeding under Fla.R. Crim.P. 3.21Ó does not change that presumption. It simply places upon a trial judge the responsibility of determining defendant’s competency to stand trial when the issue is reasonably raised. See Brown v. State, 245 So.2d 68 (Fla.1971); and Brock v. State, 69 So.2d 344 (Fla.1954). The fact that the court has reasonable grounds to believe the defendant is incompetent to stand trial and appoints experts to examine him does not place any burden on the State to prove incompetency. Cf. Parkin v. State, 238 So.2d 817 (Fla.1970). The matter is one simply submitted to the conscience of the trial judge. Cf. U. S. v. DiGilio, 538 F.2d 972 (3d Cir. 1976). We hold that the comments of the trial judge do not establish that he applied an improper burden upon the defendant and that the evidence in the record substantiates, by a clear preponderance of the evidence, the competency of the defendant to stand trial.

Affirmed.

      . The argument that the court placed the burden of proving his incompetency on the defendant is supported by the following excerpts from the comments of the trial court at the conclusion of the hearing on competency to stand trial:
      “I think in this case that the Defendant is competent to stand trial on the charges, based upon all of the testimony and reports I have examined; perhaps just borderline, but I think he is.
      ♦ + * ♦ *
      “At this time, I am going to hold, based on the evidence, that the Defendant has not established that the man is incompetent to stand trial. I think he has sufficient ability to be an effective — sufficiently effective — witness, rational witness, and can sufficiently and effectively aid his Counsel. Therefore, I am going to determine that he is competent to stand trial.”


text:
    Leonard KELLER and Leonard Keller, Inc., Appellants, v. The MORTGAGE CORPORATION OF AMERICA, Appellee.
    No. 76-1948.
    District Court of Appeal of Florida, Third District.
    Jan. 17, 1978.
    Shorenstein & Lewis, Miami Beach, for appellants.
    Malspeis, Lococo & Brown, North Miami, for appellee.
    Before HAVERFIELD, C. J., and HUB-BART and KEHOE, JJ.
   KEHOE, Judge.

Appellants, defendants and counterclaim-ants below, bring this appeal from a final judgment dated August 27, 1976, entered by the trial court imposing liability on them, both jointly and severally, for certain brokerage commissions and denying their counterclaims as an offset. We have carefully reviewed the record, heard arguments of the parties’ respective counsel and studied their briefs, and have concluded that no reversible error has been shown. See, e. g., 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). Therefore, the final judgment appealed is affirmed.

Affirmed.


text:
    Betty WILLIAMS, Appellant, v. The STATE of Florida, Appellee.
    No. 77-434.
    District Court of Appeal of Florida, Third District.
    Jan. 17, 1978.
    Bennett H. Brummer, Public Defender, and Paul Morris, Asst. Public Defender, for appellant.
    Robert L. Shevin, Atty. Gen., and William M. Grodnick, Asst. Atty. Gen., for appellee.
    Before HAYERFIELD, C. J., and KE-HOE, J., and CHARLES CARROLL (Ret.), Associate Judge.
   PER CURIAM.

Affirmed. See State v. Hetzko, 283 So.2d 49 (Fla. 4th DCA 1973); State v. Bell, 249 So.2d 748 (Fla. 4th DCA 1971); Webster v. State, 201 So.2d 789 (Fla. 4th DCA 1967); Rodriguez v. State, 189 So.2d 656 (Fla. 3d DCA 1966); and Hedges v. State, 165 So.2d 213 (Fla. 2d DCA 1964).


text:
    BAGWELL LUMBER COMPANY, Petitioner, v. FLORIDA DEPARTMENT OF COMMERCE, DIVISION OF EMPLOYMENT SECURITY and Thomas W. Fenders, Respondents.
    No. 76-902.
    District Court of Appeal of Florida, Second District.
    Jan. 18, 1978.
    S. Colquitt Pardee, Avon Park, for petitioner.
    Kenneth H. Hart, Jr., and Alex D. Little-field, Jr., Tallahassee, for respondents.
   GRIMES, Acting Chief Judge.

Petitioner discharged one of its employees, respondent Fenders. Fenders applied for unemployment compensation benefits, but the claims examiner denied his claim. He appealed to the appeals referee who also found the claimant to be ineligible for the benefits. Fenders appealed the referee’s decision to the Industrial Relations Commission which reversed the referee and ruled Fenders eligible for the benefits. Petitioner sought a writ of certiorari seeking our review of the commission’s ruling.

At the hearing before the appeals referee, Thomas Bagwell, the owner of the petitioning company, testified that Fenders had worked for him as a truck driver for sixteen years. He said Fenders had been drunk on the job on numerous occasions and that he had often warned him about his drinking on the job.

On January 23, 1975, Bagwell’s son sent Fenders home because the son thought he was drunk. The next morning, Bagwell telephoned Fenders. Bagwell stated that from Fenders’ voice he could tell he was drinking so he fired him. In support of his statement that Fenders was often drunk, Bagwell presented police records which showed twelve convictions on drunk charges and one conviction for DWI between 1968 and 1975.

Fenders denied being drunk on either January 23rd or 24th. He said Bagwell had told him he was being fired so that a younger man could be hired.

On the basis of the testimony, the appeals referee found that Fenders was discharged for misconduct and therefore was disqualified from receiving unemployment compensation benefits. In reversing that decision, the Industrial Relations Commission stated that, “The employer’s long delay in discharging the claimant for drinking at work and the quantum and quality of the evidence at the hearing . . . are insufficient to support a finding of misconduct

The appeals referee is the fact-finder in the unemployment compensation claims' procedure. Section 443.07, Florida Statutes (1975). If the record shows that there was substantial competent evidence to support the factual findings of the appeals referee, then that decision must be upheld. Florida Department of Commerce v. Dietz, 349 So.2d 1226 (Fla. 2d DCA 1977) (Opinion filed September 23,1977); Continental Baking Company v. Vilchez, 219 So.2d 733 (Fla. 2d DCA 1969).

We have concluded that there was competent substantial evidence upon which the referee could have made his finding that Fenders was dismissed for misconduct connected with his work. See Castillo v. Florida Department of Commerce, 253 So.2d 162 (Fla. 2d DCA 1971). Consequently, he is not entitled to receive unemployment compensation.

The writ of certiorari is hereby granted, the decision of the Industrial Relations Commission is reversed, and the decision of the appeals referee reinstated.

SCHEB and DANAHY, JJ., concur.


text:
    RELIABLE FINANCE COMPANY, Appellant, v. Jessie CONGER and Bernd Koster, Appellees.
    No. 77-1656.
    District Court of Appeal of Florida, Second District.
    Jan. 18, 1978.
    Stephen J. Wein of Belcher & Fleece, St. Petersburg, for appellant.
    No appearance for appellee.
   PER CURIAM.

We affirm the action of the trial court in consolidating this case with that of William F. Gamble, et ux. v. Jessie Conger, et al., Circuit Court Case No. 77-4967-10 since the same subject matter is involved in both cases. Under these circumstances, however, we feel it was error to deny appellant’s motion for summary judgment. We therefore vacate that portion of the order which denied the motion for summary judgment to permit appellant’s motion to remain pending before the trial judge sitting on the consolidated cases. In all other respects, the order appealed from is affirmed.

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