text:
    Charles Edward LANGSTON, Appellant, v. STATE of Florida, Appellee.
    No. 78-1827.
    District Court of Appeal of Florida, Second District.
    May 18, 1979.
    Jack O. Johnson, Public Defender, P. Douglas Brinkmeyer, Asst. Public Defender and David A. Davis, Legal Intern, Bartow, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Robert J. Landry, Asst. Atty. Gen., Tampa, for appellee.
   PER CURIAM.

The revocation of appellant’s probation is affirmed, but we remand for correction of the order of revocation and the judgment and sentence.

The order assessing costs against appellant must be set aside. Since the trial court had adjudged appellant to be insolvent, it was not authorized to assess costs against him. § 939.15, Fla.Stat. (1977); Cox v. State, 334 So.2d 568 (Fla.1976).

In addition, the written order of revocation recites a finding that appellant violated conditions (a), (h), (i), and (k), although the trial court’s oral finding at the revocation hearing reflects only that condition (i) was violated. The finding of violations of conditions (a), (h), and (k) should be deleted from the order of revocation to conform to the oral finding made at the hearing.

OTT, A. C. J., and RYDER and DAN-AHY, JJ., concur.


source: Caselaw Access Project

author: SCHEB, Judge.

license: Public Domain

text:
    Cruz ORTEGA and Higinia Ortega, his wife, Appellants, v. PERRINI AND SONS, INC., d/b/a Western Auto of Wauchula and Fidelity and Casualty of New York, a foreign corporation, Appellees.
    No. 78-1849.
    District Court of Appeal of Florida, Second District.
    May 18, 1979.
    Abraham L. Bassie and Joel V. Lumer of Kaplan, Sicking, Hessen, Sugarman, Rosen-thal & Zientz, Miami, for appellants.
    Chris W. Altenbernd of Fowler, White, Gillen, Boggs, Villareal & Banker, Tampa, for appellees.
   SCHEB, Judge.

The trial court awarded a new trial to appellees, defendants below, finding on the basis of facts developed in a posttrial interview of jurors that matters not in evidence had been considered. We reverse.

Appellants Cruz Ortega and Higinia Ortega sued appellees for damages for personal injuries they sustained when their truck, which was being serviced by appellee Western Auto, fell on Cruz Ortega breaking his back. The jury awarded damages of $20,000 to Cruz Ortega and $4,500 to his wife Higinia after finding appellant Cruz Ortega forty percent comparatively negligent.

After trial appellees filed a motion to interview jurors under Fla.R.Civ.P. 1.431(g). The only allegation to support the motion was a statement by counsel for appellees that “questions of the jury directed to the court during deliberation indicate the jury may well have arrived at a quotient verdict either on the question of damages or on the question of the comparative negligence between the parties.” The court granted the request to interview the jurors on how they arrived at their verdict. After the interviews were conducted the court entered an order finding that:

(1) The jury failed to follow the instructions of the court requiring that the verdict be based on the evidence in the record as it appears that the jury was influenced by or based their verdict on matters not in evidence, including matters within the personal knowledge of one or more of the members, and further considered future elements of damage for which there was no supporting evidence in the record.
(2) The verdict is against the manifest weight of the evidence in that the jury verdict included an award for future elements of damage in the face of uncontro-verted evidence that such future loss was not to be expected.

At the outset we note that it appears unusual for the trial court to have permitted appellees to question the jurors on factors they considered in reaching a damage figure. See National Indemnity Company v. Andrews, 354 So.2d 454 (Fla. 2d DCA 1978); Velsor v. Allstate Insurance Company, 329 So.2d 391 (Fla. 2d DCA 1976); Fla.Bar Code Prof.Resp., E.C. 7-29, D.R. 7-108(D). The record below reflects no independent basis for challenge of the verdict as a quotient verdict or otherwise. Appellant, however, has not raised this point on appeal. Consequently, since resolution of the propriety of juror interviews is not essential to our conclusion, we do not address the issue further other than to quote from National Indemnity Company v. Andrews, supra, at 456:

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

The trial court has broad discretion, however, to grant a new trial on proper grounds. Cloud v. Fallis, 110 So.2d 669 (Fla.1959). When it does the court must specify grounds and give reasons to support the order and refer to facts in the record to make the order susceptible to appellate review. Wackenhut Corp. v. Canty, 359 So.2d 430 (Fla.1978). See Cassat Avenue Mobile Homes, Inc. v. Bobenhausen, 363 So.2d 1065 (Fla.1978); White v. Martinez, 359 So.2d 7 (Fla. 3d DCA 1978); Fla.R.Civ.P. 1.530(f).

Since no reference to facts from the record was made in support of the trial court’s order, we have examined the record to seek support for the trial court’s conclusions. However, neither the parties’ briefs nor the record contain the necessary support.

The record reveals that the only matter not in evidence which may have been considered by a juror was reflected by one juror’s comment at deposition:

I don’t know the man’s age, but we figured that he would be capable of earning $10,000 per year until he was sixty-five years old if there were nothing wrong with him. This is considering the work he was already in, and I happened to know how much a foreman is capable of earning. So, we took and I do not recall exactly how old the man was, but it seemed we were working with 12 or 13 years. And at a figure of 10 percent of $10,000 over a period of 13 years is how we arrived at that, plus we took his medical bills and added them to the figure we arrived at.

We do not think it unusual that a juror from rural Wauchula would bring to his deliberations some idea of the wages of a foreman of grove pickers. More importantly, however, the record shows that appellant’s earnings prior to the accident were around $6,000 per year as a grove worker. On this basis, the fact that a single juror concluded that appellant could make $10,-000 per year as a foreman in future years was not sufficient to vitiate the jury’s verdict. Since appellant’s prior earnings were in evidence, we do not find the juror’s statement sufficient to imply consideration of matters not in evidence. It was, therefore, error for the trial court to have ordered a new trial on this basis.

We are likewise unable to find that the jury’s apparent award of damages for loss of future earning capacity was against the manifest weight of the evidence. The treating physician testified that appellant was ten percent permanently disabled because of the accident and that no further medical treatment would be needed. Appellant could work only in a limited capacity, without physical labor, and was unable to perform the duties of his prior job. Appellant himself testified that he was unable to do even household chores, and has constant back problems. Further support for the jury’s award arises from the lack of any contradicting evidence in this area. Thus, we are unable to find support in the record for the trial court’s conclusion that the jury award was against the manifest weight of the evidence.

We reverse the order granting a new trial, and remand with directions to reinstate the jury’s verdict.

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


author: RYDER, Judge.

text:
    Edward HUNT, Appellant, v. STATE of Florida, Appellee.
    No. 78-1968.
    District Court of Appeal of Florida, Second District.
    May 18, 1979.
    Jack 0. Johnson, Public Defender, P. Douglas Brinkmeyer, Asst. Public Defender, and David A. Davis, Legal Intern, Bar-tow, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Charles Corees, Jr., Asst. Atty. Gen., Tampa, for appellee.
   RYDER, Judge.

This is an appeal from an order denying appellant’s motion to suppress physical evidence.

At the hearing on the motion, Officer Gary Swartz of the St. Petersburg Police Department testified that about noon on February 21, 1978, he was searching the woods next to the Lake Maggiore Country Club in St. Petersburg for someone who allegedly had been exposing himself. After losing the trail, Officer Swartz returned to his vehicle and drove about the area. While in the process, he observed two boys, one of whom was appellant, sitting by a creek in the woods. Thinking that one of them might be the exposer, Swartz parked his car, got out and walked into the woods. When he was fifty feet from the two boys, he saw appellant’s companion stuff a bag under his leg and try to conceal it.

When Swartz reached the boys’ position, he ordered them to stand up and produce identification. Where appellant’s companion had been sitting, the officer found a bag of marijuana. Swartz arrested the boy and had a security guard pat down both the companion and appellant. Swartz testified that except for what later happened, he would have let appellant go at that point.

However, Swartz then took both boys across the creek to a nearby picnic table. There he called for further assistance and, as they waited, Swartz talked with appellant. He asked appellant if he had any marijuana on him. Appellant said no. Then, noticing a bulge in appellant’s jacket pocket, he inquired of appellant as to what was in the pockets. Appellant replied that it was only his gloves. “Let’s see them,” Swartz said. Appellant then opened the flap to the pocket and pulled out two bags of marijuana. Swartz arrested appellant for possession of the marijuana which appellant subsequently moved to suppress.

In reviewing this case, we begin with the assumption, as apparently did counsel and the judge in the court below, that the seizure of the marijuana was legal only if appellant had consented to the “search” of his pockets. For consent to be found, the State must demonstrate by clear and convincing evidence that a defendant freely and voluntarily agreed to a search and that his agreement was not the product of a mere acquiescence in the apparent authority of the police to conduct a search. Bailey v. State, 319 So.2d 22 (Fla.1975). Here, the State did not meet this burden. The only conclusion which can be drawn from the undisputed facts set out above is that appellant pulled the plastic bags from his pocket because he thought the police officer had the authority to tell him to do so.

Accordingly, we REVERSE and REMAND the case for further proceedings consistent with this opinion.

BOARDMAN, Acting C. J., and DAN-AHY, J., concur.

      . Appellant pleaded nolo contendere to possession of marijuana, reserving his right to appeal the denial of suppression.


author: PER CURIAM.

text:
    Carl Orvil POLITE, Appellant, v. STATE of Florida, Appellee.
    No. 78-2312.
    District Court of Appeal of Florida, Second District.
    May 18, 1979.
    Jack 0. Johnson, Public Defender, and Lawrence D. Shearer, Asst. Public Defender, Bartow, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and William I. Munsey, Jr., Asst. Atty. Gen., Tampa, for appellee.
   PER CURIAM.

Appellant was convicted by a jury of two counts of aggravated assault, two counts of attempted aggravated assault, two counts of false imprisonment, and two counts of attempted false imprisonment. The trial court adjudicated appellant guilty of the first count of aggravated assault and imposed a sentence of three years imprisonment. The court withheld adjudication on the remaining seven counts and imposed concurrent three-year probations on each, to run consecutive to the three-year imprisonment.

We affirm the convictions, and the sentences imposed for aggravated assault and false imprisonment. However, the crimes of attempted aggravated assault and attempted false imprisonment are first degree misdemeanors. §§ 777.04(4), 784.-021(2), 787.02(2), Fla.Stat. (1977). The maximum period of probation which may be imposed for a first degree misdemeanor is one year. See Watts v. State, 328 So.2d 223 (Fla. 2d DCA 1976), § 775.082(4)(a), Fla. Stat. (1977). The three-year terms of probation imposed below are thus excessive.

We remand for resentencing on the two counts of attempted aggravated assault and two counts of attempted false imprisonment.

OTT, A. C. J., and RYDER and DAN-AHY, JJ., concur.


text:
    James S. FORTINER, Petitioner, v. FLORIDA REAL ESTATE COMMISSION, an Agency of the State of Florida, Respondent.
    No. 79-838.
    District Court of Appeal of Florida, Second District.
    May 18, 1979.
    H. Stephen Frank, P. A., Fort Myers, for petitioner.
   PER CURIAM.

The petition for writ of certiorari is denied without prejudice to the right of petitioner to seek review of the matters contained therein by way of an appeal from the final order. Santini Brothers, Inc. v. Grover, 338 So.2d 79 (Fla. 4th DCA 1976); Wright v. Sterling Drugs, Inc., 287 So.2d 376 (Fla. 2d DCA 1973).

GRIMES, C. J., and BOARDMAN and DANAHY, JJ., concur.


author: McCORD, Chief Judge.

text:
    STATE of Florida ex rel. The TALLAHASSEE DEMOCRAT, INC., Petitioner, v. The Honorable Kenneth E. COOKSEY, etc., et al., Respondents.
    No. NN-52.
    District Court of Appeal of Florida, First District.
    May 22, 1979.

      C. Gary Williams of Ausley, McMullen, McGehee, Carothers & Proctor, Tallahassee, for petitioner.
    Dave McGee, Tallahassee, Jim Smith, Atty. Gen., and Charles A. Stampelos, Asst. Atty. Gen., Clifford Davis, Roosevelt Randolph, and Philip J. Padovano, Tallahassee, for respondents.
   McCORD, Chief Judge.

This appeal is from an order entered by the Honorable Kenneth E. Cooksey, Circuit Judge, respondent, denying after hearing the petition of the Tallahassee Democrat, Inc., for reconsideration of his order sealing the record (the court file) in a pending and untried criminal case in the Circuit Court of the Second Judicial Circuit in and for Wakulla County, Florida. The criminal case is one in which respondents Johnny Copeland, Frank Smith and Victor Hall are charged by indictments with first degree murder and other crimes. The order was entered by the trial court on its own motion without prior notice or hearing upon a finding by the court that “the interest of justice would be best served by sealing of the Court’s records in this matter.” It directed that the records be sealed from all parties except the state and the defendants. We have jurisdiction to review the action of the trial court under Fla.App.R. 9.100(d) in that it is an order excluding the press and public from access to judicial records which are not required by law to be confidential.

Petitioner contends it was error to seal the file without notice to the news media and a hearing prior to the entry of such order; that an order closing the record cannot be entered absent a showing that closure is necessary to prevent a serious and imminent threat to the administration of justice and no less restrictive alternate measures are available; that an order closing the record must specifically set forth the reasons therefor so that a reviewing court can make a determination as to the constitutionality of the order.

Petitioner narrows the foregoing questions to whether the entry of the order in this case was consistent with the standards and procedures established.by the Supreme Court in State ex rel. Miami Herald Pub. v. McIntosh, 340 So.2d 904 (Fla.1976), and by the Second, Third and Fourth District Courts of Appeal in News-Press Publishing Company, Inc. v. State, 345 So.2d 865 (Fla. 2 DCA 1977); Miami Herald Publishing Co. v. State, 363 So.2d 603 (Fla. 4 DCA 1978); and Miami Herald Publishing Co. v. Collazo, 329 So.2d 333 (Fla. 3 DCA 1976). Petitioner’s primary reliance is upon the Supreme Court’s opinion in McIntosh, the first above-cited case. Unlike the case sub judice, however, McIntosh involved prior restraint upon publication of open court proceedings rather than closure of a case file. There the trial court entered a pretrial order directing that members of the news media “ ‘not report any testimony presented and/or evidence exhibited in the absence of the jury unless same shall have been admitted in evidence by the Court, or is a public record, or is presented in open court in the presence of the jury.’ ”

In considering petitioner’s first point that notice must be given and hearing must be had before a court file may be sealed, the case here requires a different procedure from that followed in prior restraint cases, such as McIntosh. In such cases, notice before restraint is not a major problem because the trial court can simply hold the proceedings in abeyance until its ruling is made. In sealing a file, however, the damage to a defendant (if damage it be) can be done before notice can be given and a hearing held to determine whether or not the file should be sealed. McIntosh is, therefore, not applicable to this proceeding. In the case sub judice, upon learning of the order sealing the file, petitioner filed its motion and a hearing was then held thereon. We find no error in the procedure followed by the trial court. In the future, however, when a trial court enters an order sealing a court file (or portion thereof), it should direct the clerk to forthwith post a copy of the court’s order on the bulletin board of or the front door of the courthouse for a period of 15 days following its rendition. Such will constitute adequate notice to interested parties should they desire to move for reconsideration as did petitioners here.

Moving to the substantive question of whether or not the trial court erred in not granting petitioner’s motion to reopen the file, it should be recognized that in criminal cases the trial court must balance two constitutional provisions which sometimes clash — (1) freedom of the press under the First Amendment to the United States Constitution and § 4 of Art. I of the Florida Constitution, and (2) the right of a defendant to fair trial under the Sixth Amendment of the United States Constitution and § 16 of Art. I of the Florida Constitution. Where such a clash occurs, the trial judge walks a tight wire in resolving the constitutional conflict. The right of the news media and the public to know all that transpires in a criminal case (beyond their unchallenged right to observe all proceedings in open court) must be carefully weighed against the defendant’s right to a fair trial, but the defendant’s right to a fair trial should be given paramount consideration. This should be with the realization, of course, that denial of access by the press to all or part of the criminal case file is not forever and should be terminated when the necessity for such denial has ceased to exist.

There is a basic and fundamental difference between closing an open court proceeding (or prohibiting the news media from publishing what they hear in open court) and closing all or a portion of a court file. In the latter case, the file or portion thereof is sealed to insure that the public will not be infected prior to the trial with information which will not be admissible in evidence against the defendant. Once a jury has been selected and the trial begins, the court can take measures (such as excluding the jury during argument of the admissibility of certain evidence or sequestering the jury during recesses) to see that the jury is not infected with inadmissible evidence.

Our sister court of the Second District in News-Press Publishing Company, Inc. v. State, supra, held that the trial court should specifically set forth in its order sealing a court file its reasons therefor in order that the legality thereof can be reviewed. It was pointed out that the basis for closing the records can be sufficiently stated without divulging the information sought to be protected. We agree. The trial court has authority in its discretion to seal all or part of a criminal court file if it finds there are compelling reasons to do so and provided the court makes a full exploration of all relevant facts, opposing views, and possible alternatives considering always whether or not the sealing of the file or a portion thereof is so necessary to protect rights of the litigants that the rights of the news media under the First Amendment must give way. Upon review of such an order, this Court will determine whether there has been such full exploration and whether the results thereof relate rationally to the trial court’s decision.

Here the trial court, in closing the file, found only that the interest of justice would be best served by sealing it. We consider that more definitive reasons are necessary in order that the legality of the reasons may be reviewed. The reasons, however, should not be so definitive as to prejudice the defendant in the trial of his case. In addition, as shown by the transcript of the hearing below, the trial judge noted that there were portions of the file which would not require sealing, but he did not exclude such portions from the sealing requirement. Such should have been done.

We reverse and remand to the trial court with directions to further consider this case in the light of this opinion. Upon any further review of subsequent action of the trial court, this Court will not substitute its judgment for that of the trial judge in the absence of a clear showing upon the record of a manifest abuse of discretion.

We have considered Miami Herald Publishing Co. v. State, supra, and Miami Herald Publishing Co. v. Collazo, supra, and find them not relevant to the case sub judice. The first above cited is a prior restraint case and Collazo dealt with an order sealing a settlement agreement made in a hearing before the court.

Pursuant to § 3(b)(3) of Article V of the Constitution of the State of Florida, we certify to the Supreme Court of Florida the questions passed upon by this decision to be questions of great public interest.

REVERSED AND REMANDED.

ROBERT P. SMITH and LARRY G. SMITH, JJ., concur.

      . State ex rel Miami Herald Pub. v. McIntosh, 340 So.2d 904 (Fla.1976).

      . The right of fair trial has been referred to as “the most fundamental of all freedoms,” Estes v. Texas, 381 U.S. 532, 85 S.Ct. 1628, 14 L.Ed.2d 543 (1965).


text:
    Irving CYPEN, Appellant, v. MOBIL OIL CORPORATION, a New York Corporation, Appellee.
    No. 77-1155.
    District Court of Appeal of Florida, Third District.
    May 22, 1979.

      Horton, Perse & Ginsberg and Edward A. Perse, Miami, for appellant.
    Fleming, O’Bryan & Fleming and W. M. O’Bryan, Fort Lauderdale, for appellee.
    Before HENDRY, HUBBART and KE-HOE, JJ.
   PER CURIAM.

Affirmed. See Indiana National Bank v. Mobil Oil Corp., 578 F.2d 180 (7th Cir. 1978), and The Fourth National Bank and Trust Co., Wichita v. Mobil Oil Corporation, 224 Kan. 347, 582 P.2d 236 (1978).


author: KEHOE, Judge.

text:
    Alex SIMS, Jr., Appellant, v. The STATE of Florida, Appellee.
    No. 77-2050.
    District Court of Appeal of Florida, Third District.
    May 22, 1979.
    Bennett H. Brummer, Public Defender, and Warren S. Schwartz, Asst. Public Defender, for appellant.
    Jim Smith, Atty. Gen., and Steven R. Jacob, Asst. Atty. Gen., for appellee.
    Before HENDRY, HUBBART and KE-HOE, JJ.
   KEHOE, Judge.

Appellant, defendant below, brings this appeal from a judgment of conviction and sentence entered by the trial court after a jury trial. Appellant was found guilty of third degree murder, two counts of aggravated assault, and unlawful possession of a firearm. We reverse.

Among the points raised on appeal is one which requires reversal. This point is stated by appellant as follows:

“The court erred in denying defendant’s motion for mistrial based on the highly prejudicial comment made by the prosecutor in his closing argument, thereby violating defendant’s right to due process as guaranteed to him by the fourteenth amendment to the United States Constitution and Article I, Section 9 of the Florida Constitution where the prosecutor stated that defense counsel would congratulate defendant at the end of the trial and tell him to ‘go get another one’. “A. The prosecutor overstepped the bounds of propriety and fairness by making improper assertions of matters not in evidence in order to prejudice and unduly influence the jury.
“B. The prosecutor’s statement exceeded the proper bounds for retaliatory remarks by the prosecution in response to statements made by the defense.
“C. Where an improper remark is repeated, the proper remedy is a mistrial.”

The record reflects that during closing argument to the jury, appellee made the following comment:

“I’ll throw in a mud sling. I’ll tell you that that [sic] jury, by the time they finish with this case, they’re going to come back and they’re going to shake Alex Sims’ [defendant below] hand. ‘Go get another one, Alex.’ ”

This remark, in the context in which it was made, created the unmistakable impression that appellant would commit another murder should he be acquitted. Such remarks have consistently been found to be highly prejudicial and inflammatory to a jury. In our opinion, the making of this remark in the jury’s presence deprived appellant of a fair trial. After appellee made the prejudicial remark, the trial court sustained appellant’s objection to the statement. Immediately after this ruling, appellee repeated the comment: “Go get another one.” This additional comment added further to the error. See, e. g., Grant v. State, 194 So.2d 612 (Fla.1967); Porter v. State, 347 So.2d 449 (Fla.3d DCA 1977); Malery v. State, 303 So.2d 369 (Fla.3d DCA 1974); Thompson v. State, 235 So.2d 354 (Fla.3d DCA 1970); Russell v. State, 233 So.2d 154 (Fla.4th DCA 1970); and Chavez v. State, 215 So.2d 750 (Fla.2d DCA 1968). Based upon the reasons and the authorities set forth above, it was reversible error for the trial court to deny appellant’s motion for a mistrial. Accordingly, the judgment of conviction and sentence appealed are reversed and the cause is remanded for a retrial.

Reversed and remanded.


text:
    Charles Reynaldo PARRA, Appellant, v. The STATE of Florida, Appellee.
    No. 77-2230.
    District Court of Appeal of Florida, Third District.
    May 22, 1979.
    Galletti & Fischer, Key West, for appellant.
    Jim Smith, Atty. Gen. and Steven R. Jacob, Asst. Atty. Gen., for appellee.
    Before PEARSON, HENDRY and HUB-BART, JJ.
   PER CURIAM.

The briefs and record on appeal having been carefully considered, and the appellant having failed to demonstrate reversible error, the judgment appealed is affirmed. See, State v. Padilla, 235 So.2d 309 (Fla. 3d DCA 1970); State v. Payton, 344 So.2d 648 (Fla. 2d DCA 1977); State v. Oliver, 368 So.2d 1331 (Fla. 3d DCA 1979).

Affirmed.


author: HAVERFIELD, Chief Judge.

text:
    Mary GAIDYMOWICZ, Appellant, v. WINN-DIXIE STORES, INC., Appellee.
    No. 78-1781.
    District Court of Appeal of Florida, Third District.
    May 22, 1979.

      Horton, Perse & Ginsberg and Arnold R. Ginsberg, Vogler & Postman, Miami, for appellant.
    Vernis & Bowling and Richard N. Blank, Miami, for appellee.
    Before HAVERFIELD, C. J., and PEARSON and SCHWARTZ, JJ.
   HAVERFIELD, Chief Judge.

In this negligence action plaintiff, Mary Gaidymowicz, appeals an adverse final judgment entered pursuant to defendant supermarket’s motion for directed verdict made at the close of her case.

Mrs. Gaidymowicz while shopping at one of the Winn-Dixie Stores slipped and fell on some gyeen liquid detergent which was lying on the floor of aisle number 3 and sustained injury. At the jury trial Harold Sobel, who had accompanied his mother, Mrs. Gaidymowicz, to the market, testified that upon noticing the liquid detergent on the floor of aisle 3, he immediately notified the store manager, Herbert Russell, and then returned to aisle 3 whereupon he observed his mother on the floor. Sobel further testified that it took him just over a minute to walk over to the manager and inform him of the liquid lying on the floor and to return to aisle 3. Mr. Russell, the store manager, testified that the first time he was apprised of the liquid lying on the floor was when Mr. Sobel came to him and told him of Mrs. Gaidymowicz’s fall and that no more than five minutes prior thereto he had walked down aisle 3 and nothing was on the floor. Mr. Russell also stated that upon arriving at the scene of the fall, he noticed some liquid detergent on the floor of aisle 3 and also some detergent on aisle 4, but none on the cross-aisle near the meat counter from where Mrs. Gaidymow-icz had just returned to her cart on aisle 3.

Based upon the above testimony, the trial judge granted Winn-Dixie’s motion for a directed verdict. Mrs. Gaidymowicz appeals and contends that contested issues of fact existed which required jury resolution.

With regard to the duty of a supermarket to one of its patrons, the well established general rule is that the owner of the premises will not be held liable if the record fails to show either how the condition was created, the length of time the condition existed before the accident or that the store owner was responsible for the condition. The exception to the above rule is that the owner of a store may be held liable for a customer’s injuries if the dangerous condition on the floor existed for a sufficient length of time to charge the defendant owner with constructive knowledge. Montgomery v. Florida Jitney Jungle Stores, Inc., 281 So.2d 302 (Fla.1973).

The evidence on the issue of Winn-Dixie being on actual notice of the liquid on the floor when viewed in a light most favorable to Mrs. Gaidymowicz reflects that a little over a minute before her fall, her son, Harold Sobel, informed the manager, Mr. Russell, of the liquid on the floor and Mr. Russell thereupon ordered an employee to clean it up. We conclude that with only one minute actual notice, Winn-Dixie did not have a sufficient opportunity to correct the dangerous condition and, therefore, could not be liable on the basis of actual notice. Cf. Waters v. Winn-Dixie Stores, Inc., 146 So.2d 577 (Fla.2d DCA 1962); Publix Super Markets, Inc. v. Heiser, 156 So.2d 540 (Fla.2d DCA 1963).

We next considered the liability of Winn-Dixie on the ground of constructive notice. Although the fact that a dangerous condition existed long enough so that it should have been discovered by the owner/defendant may be proved like any other fact by circumstantial evidence, Mrs. Gaid-ymowicz failed to present sufficient evidence as to the length of time the liquid was on the floor in order for Winn-Dixie to be charged with constructive knowledge of the condition and a reasonable time in which to correct it. Again, a perusal of the evidence in a manner most favorable to Mrs. Gaidymowicz reveals that (1) at the most five minutes before her fall, Mr. Russell walked down aisle 3 and there was nothing there, and (2) after the fall, Mr. Russell noticed the liquid on aisle 3 and on aisle 4, but not on the cross-aisle near the meat counter. Although the record contains no evidence of any liquid or substance on the floor of the cross-aisle near the meat counter, Mrs. Gaidymowicz argues that from the above testimony of Mr. Russell with regard to the liquid being on the floor of aisles 3 and 4, a reasonable inference can be drawn that the liquid was also on the cross-aisle and was there long enough for it to be worn away by normal traffic; therefore, it can be further inferred that the liquid was on the cross-aisle for a sufficient length of time for Winn-Dixie to have reasonably known of its existence. In order to use one inference as a basis for another inference (i. e. build an inference upon inference) the first or initial inference must outweigh all reasonable inferences to the contrary. Voelker v. Combined Ins. Co., 73 So.2d 403 (Fla.1954). In the case at bar, the fact no liquid was found on the cross-aisle is equally (if not more so) reasonably susceptible to the inference that there was never any liquid spilled on the cross-aisle. Thus, Mrs. Gaidymowicz cannot prevail on the ground of constructive notice. See McDaniel v. Great Atlantic & Pacific Tea Co., Inc., 327 So.2d 893 (Fla.3d DCA 1976).

Last, the record failed to show that the Winn-Dixie or one of its employees was responsible for spilling the liquid on the floor.

Accordingly, the judgment for Winn-Dix-ie entered pursuant to its motion for directed verdict is affirmed.

Affirmed.

      . Winn-Dixie Stores, Inc. v. Williams, 264 So.2d 862 (Fla.3d DCA 1972).


author: SCHWARTZ, Judge.

text:
    KUVIN, KLINGENSMITH & LEWIS, P. A., Appellant, v. FLORIDA INSURANCE GUARANTY ASSOCIATION, INC., Appellee.
    No. 79-52.
    District Court of Appeal of Florida, Third District.
    May 22, 1979.

      Kuvin, Klingensmith & Lewis and R. Fred Lewis, Coconut Grove, for appellant.
    Preddy, Kutner & Hardy and Stephen T. Brown, Miami, for appellee.
    Before HENDRY, HUBBART and SCHWARTZ, JJ.
   SCHWARTZ, Judge.

The trial judge ordered this case transferred from Dade to Leon County. The primary issue presented on this appeal of that order is whether the Florida Insurance Guaranty Association (FIGA) is a governmental entity entitled to the venue privilege of being sued only at the site of its headquarters. We hold it is not and that the order may not be otherwise sustained as a proper transfer under Section 47.122, Florida Statutes (1977). We therefore reverse the order under review.

The appellant, Kuvin, Klingensmith & Lewis, P.A., a Miami law firm, sued the FIGA in Dade County Circuit Court. The action sought to recover for legal services rendered in a large number of cases to Manchester Insurance and Indemnity Co., a liability insurer which thereafter became insolvent and which was succeeded by FIGA pursuant to the provisions of the statute which created it. Sections 631.50 et seq., Florida Statutes (1977). FIGA moved both to dismiss the complaint and to transfer the action to Leon County. The trial court granted the latter motion and ordered the cause transferred to the Second Circuit. This “interlocutory appeal” to review that non-final order “concerning venue,” pursuant to Fla.R.App.P. 9.130(a)(3)(A), followed.

In support of the order under review, the FIGA primarily contends that it is a governmental subdivision, that is, an agency of the state, subject to the Florida common law rule most recently expressed in Carlile v. Game & Fresh Water Fish Commission, 354 So.2d 362, 363-364 (Fla.1977):

“. . that venue in civil actions brought against the state or one of its agencies or subdivisions, absent waiver or exception, properly lies in the county where the state, agency, or subdivision, maintains its principal headquarters. Smith v. Williams, 160 Fla. 580, 35 So.2d 844 (1948) and Ringling Brothers — Barnum and Bailey Combined Shows v. State, 295 So.2d 314 (Fla. 1st DCA 1974).”

We do not agree that the FIGA may properly be so regarded.

The general purposes and functions of the FIGA were outlined by the supreme court in O’Malley v. Florida Insurance Guaranty Ass’n, 257 So.2d 9, 10, 11 (Fla.1971) which upheld the constitutionality of its statutory foundation:

“Ch. 70-20 created the Florida Insurance Guaranty Association, Inc., a non-profit corporation, as the mechanism for the payment of covered claims under certain classes of insurance policies of insurers which have become insolvent.
To raise the funds necessary to administer and pay covered claims and other expenses, the statute provides for an assessment on certain casualty insurers doing business in the state and selling the class of insurance policies involved.”
* * * * * *
“The Guaranty Association is a public or quasi-public corporation. It is a legislatively declared ‘mechanism’ to aid and benefit numerous citizens many of whom comply with state requirements in obtaining casualty and other insurance coverage for themselves and have suffered loss of the insurance protection they obtained because of the insolvency of their insurors.”

Under the present statutory scheme, the FIGA is a non-profit corporation composed exclusively of private insurance companies which transact business in Florida. § 631.-55. Its “governing committee” contains no public officials or employees but consists entirely of persons recommended to the insurance department by the member insurers. § 631.56(1). In fact, none of those who work for the FIGA are general state employees; they either remain employees of the insurance companies, and have their expenses reimbursed by the FIGA, § 631.-56(3), or they are employed directly by the FIGA itself. §§ 631.57(2)(a), 631.57(5). Most importantly, the FIGA is funded entirely and exclusively by assessed contributions from the member companies. § 631.-57(3)(a). By specific statutory prohibition, no tax monies may be involved. § 631.-57(3)(d) provides:

“No state funds of any kind shall be allocated or paid to said association or any of its accounts.”

As the court was careful to point out in O’Malley, supra, at 257 So.2d 13:

“Here there is no question but that the funds to pay claims of insureds of insolvent insurers are not state revenues but are treated throughout as trust funds separate and apart from general tax funds or other state revenue.”

In our view, the total non-involvement of public funds is the most significant factor in the analysis of whether a given entity should be deemed governmental in character for venue purposes. The Garlile case itself, at 354 So.2d 364, states the basis of the venue privilege claimed by the FIGA:

“Such a rule promotes orderly and uniform handling of state litigation and helps to minimize expenditure of public funds and manpower.” [emphasis supplied]

Since the very reason for the privilege thus does not apply to the defendant, neither should the privilege itself. See also Ven-Fuel v. Jacksonville Electric Authority, 332 So.2d 81, 82-83 (Fla. 3d DCA 1975), where this court held:

“The most telling fact appears to us to be that the authority is subject to governmental control of its budget and that tax monies may, if necessary, be used in its operation. When the activity is govern-mentally supervised and the taxpayer is financially interested, the indication is strong that the activity is governmental.” [emphasis supplied]

It seems clear that the FIGA is instead correctly viewed, as § 631.57(l)(b) specifically provides, as an “insurer” of the covered claims of the insolvent carrier in question. As such, it is subject to the same rights, privileges and duties as any other insurance company. See Zinke-Smith, Inc. v. Florida Insurance Guaranty Association, Inc., 304 So.2d 507 (Fla. 4th DCA 1974), cert. denied, 315 So.2d 469 (Fla.1975) (FIGA “insurer” under attorney’s fees statute, Section 627.428); cf. Hartnett v. Riveron, 361 So.2d 749 (Fla. 3d DCA 1978). While it is true that the FIGA, even more than other insurers, is closely regulated by the state, we are cited to no decision, and we have found none, which holds that governmental regulation, no matter how severe, is alone sufficient to convert a business entity into an arm of the government itself.

On the other hand, authority from elsewhere supports our conclusion. In Texas Employers’ Ins. Ass’n v. City of Dallas, 5 S.W.2d 614 (Tex.Civ.App.1928), the court held that although the Texas Employers’ Insurance Association was, like the FIGA, a “public corporation” created entirely by statute, it was properly treated as an insurance company rather than as a “governmental agency to perform governmental functions” so as to be exempt from municipal taxation. At 5 S.W.2d 616, the court stated:

“By creating an insurance bureau, as an agency for the payment of the compensation allowed by the said law, the state did not thereby clothe such agency with governmental functions. Its operating funds are derived from the purely voluntary act of the employers of labor[] and not from the public revenues levied and collected by the impelling power of government.
Taxes are levied by the state under its sovereign power on the property of the citizen for governmental purposes only, and the money collected is owned by the state and used only for public purposes. No part of the money collected by defendant ever becomes public revenue.”

See also In re Torpedo Dress Corp., 176 Misc. 60, 26 N.Y.S.2d 971, 974-975 (Sup.Ct.1938). We therefore conclude that the order of transfer under review may not be sustained by the governmental privilege asserted by the FIGA.

The appellee contends, however, that the order of transfer should be upheld on the alternative ground that it was properly entered pursuant to Section 47.122, Fla. Stat. (1977), the “forum non conveniens” statute which permits the transfer of actions “[f]or the convenience of the parties or witnesses.” Again, we cannot agree. In the unsworn motion to transfer, the FIGA stated only that the case should be tried in Leon County:

“. . . because the files which are the subject matter of this litigation are required by the Ancillary Receiver of Manchester to be located in Tallahassee, Florida, which is in the Second Judicial Circuit, the headquarters of FIGA as promulgated by the Department of Insurance is located in Tallahassee, Florida, and, in the event that factual testimony is necessary to resolve any or all of the issues in this lawsuit, the Defendant anticipates calling as witnesses, among others, Gene Carruthers, Odell Turner, Helen Hobbs, and William Whitcomb, all of whom reside in or around Tallahassee, Florida.”

Even if this statement had been sworn to, as is required to support such a motion, see Magee v. Liberty Mutual Ins. Co., 366 So.2d 827 (Fla. 4th DCA 1979), it is clear that it does not justify a transfer to Leon County under Section 47.122. The face of the corn-plaint reveals that the plaintiff is a firm of Dade County lawyers suing for personal services which they themselves performed and as to which they would obviously be the primary witnesses. Moreover, there is no dispute that the legal services were rendered and that the cause of action sued upon therefore arose here. Under these circumstances, a change of venue is improper. Velez v. Mell D. Leonard & Associates, Inc., 338 So.2d 896, 897 (Fla. 2d DCA 1976) is determinative:

“Finally, attempts by defendant to support the trial court’s ruling on the doctrine of ‘forum non conveniens’ under Section 47.122, Florida Statutes, are not persuasive. While it is apparent that defendant’s witnesses reside in Orange County, it is just as obvious that the plaintiff’s witnesses are in Hillsborough County. Therefore, defendant’s reliance on England v. Cook, 256 So.2d 403 (Fla. 3d DCA 1972), is misplaced for in England it was clear that no witnesses lived in the transferor forum.”

See also Aquarium Pharmaceuticals, Inc. v. Industrial Pressing & Packaging, Inc., 358 F.Supp. 441, 446 (E.D.Pa.1973) (transfer which “would merely shift the inconvenience from the defendant to the plaintiff” improper); Calva v. American Air Lines, Inc., 177 F.Supp. 238 (D.Minn.1959), and cases cited.

The order under review is reversed and the cause remanded with directions to deny the motion to transfer, and for further proceedings consistent herewith.

Reversed and remanded.

      . Absent the governmental privilege, venue was properly laid in Dade County as the county in which the cause of action accrued. § 47.011, Fla.Stat. (1977).

      . We think it makes no difference that payments by an insurer to the FIGA are required as a condition of its voluntary act of transacting business in our state. § 631.57.

      . Our decision is not uninfluenced by the inconvenience and incongruity which would arise if we ruled otherwise. Since any governmental venue privilege would be applicable no matter what the nature of the cause of action, Carlile v. Game & Fresh Water Fish Commission, supra, the FIGA would be able, at its option, to secure a transfer to Leon County of any claim in which it is joined as the alleged tortfeasor’s insurer or which asserts a first party claim against it under an existing policy. Furthermore, when multiple defendants are involved, only the action as against FIGA would be transferred, with a separate case proceeding against the remaining defendants in the initial forum. State Department of Transportation v. Bromante, 365 So.2d 388 (Fla. 4th DCA 1978). A court should avoid these horribles if it can. Moreover, there is no basis for concluding that the FIGA should be granted any such advantage over solvent carriers, or any greater rights than the defunct company which it succeeds.


author: DAUKSCH, Judge.

text:
    Kenneth G. HATCHER, Appellant, v. CENTRAL FLORIDA MOTORS CO., INC., et al., Appellee.
    No. 78-756.
    District Court of Appeal of Florida, Fourth District.
    May 23, 1979.
    Bernard D. Sommers, Maitland, for appellant.
    James M. Spoonhour of Lowndes, Dros-dick & Doster, Professional Association, Orlando, for appellee.
   DAUKSCH, Judge.

This is an appeal from a summary final judgment. Upon an examination of the record we find the appellee has failed to carry its burden as required under Holl v. Talcott, 191 So.2d 40 (Fla.1966) and that the summary final judgment must be reversed.

REVERSED and REMANDED.

CROSS and ANSTEAD, JJ., concur.


text:
    Ray STRAUSS, Petitioner, v. Lloyd CADY and Bettie Cady, Respondents.
    No. 79-86.
    District Court of Appeal of Florida, Fourth District.
    May 23, 1979.

      Janet R. DeLaura of Smalbein, Eubank, Johnson, Rosier & Bussey, P. A., Rockledge for petitioner.
    Silver S. Squarcia, Miami, for respondents.
   PER CURIAM.

Petition for Writ of Certiorari is hereby DENIED.

CROSS, LETTS and BERANEK, JJ., concur.


author: HOBSON, Judge.

text:
    Raymond Preston WARREN, Appellant, v. STATE of Florida, Appellee.
    No. 77-1737.
    District Court of Appeal of Florida, Second District.
    May 23, 1979.
    Jack 0. Johnson, Public Defender, Bar-tow, and Wayne Chalu, Asst. Public Defender, Tampa, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, Michael Palecki and Mary Jo M. Gallay, Asst. Attys. Gen., Tampa, for appellee.
   HOBSON, Judge.

Appellant Raymond Preston Warren appeals his convictions for escape, armed robbery and carrying a concealed firearm. He contends that the trial court erred in allowing testimony into evidence concerning arrests and charges other than those for which he was being tried. He also argues that the trial court erred in refusing to instruct the jury that an essential element of the crime of escape was that the escape was from lawful custody. We agree with appellant’s arguments and reverse.

At trial, a detective from the Hillsbor-ough County Sheriff’s Department testified that appellant escaped from his custody while being transported to the county jail after a dental appointment. Appellant effected the escape by threatening the officer with a gun and handcuffing him to a nearby parked car. Appellant then drove away in the officer’s vehicle.

On cross-examination the officer denied defense counsel’s suggestion that appellant had paid the officer to permit the escape. On redirect, the following dialogue took place between the prosecutor and the officer:

Q. You had had occasion to see Mr. Warren’s jail card?
A. Yes, sir.
Q. To your knowledge what was Mr. Warren in jail for at the time he escaped?
A. Multiple petit larceny armed robberies.
MR. ARNOLD: Your Honor, at this time I object and move for a mistrial. It is highly prejudicial and at this time I move for a mistrial.
THE COURT: Denied. Go ahead.
Q. Are you aware that any of the past— You were aware, then, of the offenses that the defendant was presently in jail for at that time?
A. Yes, sir. It was there to be seen.
Q. Were you aware of any other factors that came to your attention during the course of your job about this defendant?
A. He had a hold on him or at least one hold. He had a background of at least one escape.
MR. ARNOLD: Your Honor, again I object and move for a mistrial. This is irrelevant.
THE COURT. Overruled. Go ahead. (Emphasis supplied)

Prior to instructing the jury, the court submitted its proposed jury instruction on escape to counsel for both sides. Defense counsel agreed to the instruction on the condition that the court also instruct that one of the essential elements of the crime was that the defendant had escaped from lawful custody. The court declined to add this element.

The Supreme Court of Florida held in Williams v. State, 110 So.2d 654, 659 (Fla.1959), that evidence of collateral crimes for which the defendant is not on trial may be admissible if relevant to prove some fact in issue other than the bad character of the defendant or his propensity to commit crime. Here the State argues that the testimony in question was elicited solely for the purpose of rehabilitating the witness. In this event, the prosecutor should have brought forth evidence of the officer’s good character rather than testimony showing appellant’s propensity for committing armed robbery and escape. Under the criteria of Williams v. State, supra, comments on appellant’s prior record of crimes, identical to those on trial, were improper.

There are two reasons the trial court erred in not instructing the jury that to find appellant guilty of the crime of escape the State must prove he escaped from lawful custody. The first is that the trial court must instruct the jury as to each and every essential element of the offense charged. The consequences of a failure to so instruct were discussed by the Florida Supreme Court in Croft v. State, 117 Fla. 832, 158 So. 454 (1935):

[A] charge attempting to define the offense which does not cover material elements of the offense is necessarily misleading and prejudicial to the accused. It is equivalent to directing the jury that it is not necessary for the state to prove any elements of the offense except those included in the definition given by the court.

The second is that an essential element of the crime of escape is that the defendant escaped from “lawful custody.” King v. State, 42 Fla. 260, 28 So. 206 (1900); Fulford v. State, 113 So.2d 572 (Fla.2d DCA 1959).

Because the issues discussed are disposi-tive of the instant case, we do not address ourselves to the other points raised by appellant.

We reverse appellant’s conviction and remand this cause for a new trial.

GRIMES, C. J., and RYDER, J., concur.


author: BOARDMAN, Judge.

text:
    TRADING POST OF NAPLES, INC., and Bruce Wood, Appellants, v. Helen F. HOWL and Raymond G. Schaller, Appellees.
    No. 78-416.
    District Court of Appeal of Florida, Second District.
    May 23, 1979.

      Lynne D. Holley, Naples, for appellants.
    Thomas R. Brown of Vega, Brown & Nichols, Naples, for appellees.
   BOARDMAN, Judge.

Appellants, Trading Post of Naples, Inc. and Bruce Wood, appeal the verdict of the jury in their action for replevin and wrongful taking. We reverse in part.

Appellee Helen Howl owned a parcel of commercial property in Naples, Florida, on which a restaurant was located. The real property and building were leased to Barbara Desrosiers. Subsequently Desrosiers arranged for all of her rights, title, and interest in the lease to be assigned to Trading Post of Naples, Inc., a corporation owned and operated by Wood. The right to $2,000 damage deposit and $2,000 prepaid rent held by Howl paid by Desrosiers was transferred to Trading Post.

After taking possession of the property Wood altered the exterior of the building, installed equipment in the restaurant, and opened a tavern-restaurant. Wood stored some of his personal belongings and equipment from another restaurant on the property. A few months after he took possession he began to fall behind in the rent. After making several telephone calls to Wood demanding payment of the rent, Howl asked her husband Raymond Schaller to investigate. Schaller found the restaurant closed and the premises in a damaged and neglected condition. A back door was open, windows were broken, and the interi- or was in a state of disarray. Schaller hired a workman, removed the contents of the building, and began to clean the interior. At this point Wood arrived with a police officer. The officer ordered both Schaller and Wood to leave the premises and either settle the matter peacefully or resolve it in a civil court. Some days later Wood went to Schaller’s residence and offered to pay the overdue rent. Schaller refused payment claiming that the lease was terminated. He also refused to return any of Wood’s personal property until the damages to the building were repaired.

Appellants subsequently brought this action against Howl and Schaller for wrongful taking, wrongful eviction, return of the security and prepaid rent deposits, and punitive damages. Appellees counterclaimed for overdue rent, unpaid taxes, unpaid insurance, and damages to their property. The court issued a pretrial writ of replevin and ordered the sheriff to take custody of the property taken from the restaurant by Schaller and return it to Wood after he posted bond. The cause proceeded to jury trial. A directed verdict in favor of appellants for wrongful taking was granted by the trial court. The jury awarded Trading Post $2500 for wrongful eviction and $2500 for wrongful taking; awarded Wood $2000 for wrongful taking; and awarded appel-lees $4500 for rent, property taxes, and insurance past due, and $2500 for damage to leased equipment. The jury found that appellants were not entitled to the return of the security deposit or prepaid rent.

Appellants argue that they are entitled to a credit for prepaid rent against any judgment for rent due. Appellees argue that appellants have no claim to the prepaid rent since it was paid by the previous lessee, Desrosiers. However, appellees’ contention fails to consider that the agreement for sale of the leasehold expressly transferred the right to the prepaid rent to appellants. As a matter of law we hold that appellants are entitled to a $2000 credit for prepaid rent against amounts owing appellees for rent, property taxes, and insurance.

Appellants argue and appellees agree that Wood was entitled to discharge of the bond posted for return of Wood’s personal property and under Section 78.18, Florida Statutes, was entitled to costs caused by the wrongful taking.

Review of the transcript of the trial, the pleadings, and other relevant documents demonstrates that there was sufficient, competent evidence to uphold the jury verdict as to the items of damage except as we have discussed. Thus, in all other respects the final judgment is affirmed.

REVERSED in part, AFFIRMED in part, and REMANDED for proceedings consistent with this opinion.

GRIMES, C. J., and HOBSON, J., concur.


author: HOBSON, Acting Chief Judge.

text:
    W. Richard WILLIS, Appellant, v. GULF LIFE INSURANCE COMPANY, a corporation, Appellee.
    No. 78-1204.
    District Court of Appeal of Florida, Second District.
    May 25, 1979.
    J. W. Cullis of Icard, Merrill, Cullis, Timm & Furen, P.A., Sarasota, for appellant.
    Alex P. Lancaster of Dickinson, O’Rior-den, Gibbons, Quale, Shields & Carlton, P.A., Sarasota, for appellee.
   HOBSON, Acting Chief Judge.

W. Richard Willis appeals from a summary judgment which the trial court rendered in favor of Gulf Life Insurance Company. He argues that the trial court erred in finding that as a matter of law the statute of limitations barred his suit against Gulf Life. We agree.

Appellant Willis filed a complaint on February 17, 1977, seeking a declaration of his right to payments of $400 a month from Gulf Life under an insurance policy which provided for such payments for life in cases of total disability caused by injury. Appellant alleged that he had become totally disabled in November 1971 from an injury that occurred that month. He further alleged that while Gulf Life had made payments until January 22, 1974, it had wrongfully withheld them since that time.

In response to appellant’s complaint, ap-pellee filed an answer and then a motion for summary judgment. The trial court granted the motion, finding that Section 627.616, Florida Statutes (1977), barred appellant’s claim.

Section 627.616, the language of which Gulf Life made a part of the insurance policy, provides that

“627.616 Legal actions. There shall be a provision as follows:
‘Legal Actions: No action at law or in equity shall be brought to recover on this policy prior to the expiration of [60] days after written proof of loss has been furnished in accordance with the requirements of this policy. No such action shall be brought after the expiration of [3] years after the written proof of loss is required to be furnished.’ ”

It is readily apparent that under this section the trial court could not determine the date when the statute of limitations commenced running without knowing the date upon which proof of loss was required to be furnished. However, the parties failed to resolve that factual question by their pleadings or by affidavit and as a result the court should not have granted summary judgment.

Accordingly, we reverse the judgment of the trial court and remand this case for further proceedings.

SCHEB and OTT, JJ., concur.


text:
    Eugene BLAIR, Appellant, v. STATE of Florida, Appellee.
    No. 78-1912.
    District Court of Appeal of Florida, Second District.
    May 25, 1979.
    Jack 0. Johnson, Public Defender, and James R. Wulchak, Asst. Public Defender, Bartow, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Michael A. Palecki, Asst. Atty. Gen., Tampa, for appellee.
   RYDER, Judge.

On this appeal from his conviction and sentence for battery, appellant contends that the trial court erred in not allowing defense counsel to cross-examine the alleged victim as to whether he, as well as appellant, had been arrested as a result of the incident in question. We agree and reverse.

The testimony adduced at trial established that on the evening of June 13, 1978 appellant and two companions, Jerry Haynes and Brenda Bush, approached one Renato Castahile, a salesman at the Chick Smith Ford dealership in Clearwater, to inquire about the possible purchase of a Thunderbird automobile. Castahile showed them an automobile on the lot. An argument ensued between appellant and Cast-ahile. Castahile testified that he did not yell anything at appellant and did not touch appellant during the initial phase of the argument. However, other witnesses testified that Castahile not only yelled profanity and racial slurs at appellant, but also engaged in a shoving match with appellant.

According to Castahile and during the argument, appellant reached into the waistband of his trousers and pulled out a shiny metal object, which Castahile claimed was a razor blade. Castahile testified appellant lunged at Castahile with the object and cut Castahile’s arm and pants pocket.

Thereafter, the record reflects, Castahile retreated to the office, but returned to the scene three to four minutes later, brandishing a baseball bat and gave chase to appellant. Appellant, facing Castahile, walked backwards from the car lot and moved into and across the street to another car lot where Castahile struck appellant in the back with the bat. Appellant fell down, got back up and ran off. Castahile, however, followed him approximately half a block, still carrying the bat.

Appellant’s companion, Jerry Haynes, came to appellant’s aid, but was also struck by Castahile with the bat. Castahile dropped the bat when he hit Haynes. Brenda Bush, appellant’s other companion, retrieved it. She began swinging the bat at the seven or eight other salesmen who were approaching to aid Castahile. One of the salesmen was carrying a two-by-four board. In the meantime, another salesman punched Haynes in the face.

The police arrived on the scene, broke up the fight and arrested appellant.

Pursuant to the State’s motion in limine, the trial judge refused to allow defense counsel to question Castahile whether he, himself, had also been arrested for or charged with striking appellant or either of his companions during the altercation. Defense counsel was prepared to proffer the testimony of a Police Officer Dean to justify the question.

The challenged ruling precluded appellant from demonstrating Castahile’s possible bias or partiality. A defendant should be afforded wide latitude to demonstrate bias or a possible motive of the witness to testify as he has. Kirkland v. State, 185 So.2d 5 (Fla. 2d DCA 1966). This is especially true when the defense seeks to cross-examine a state witness regarding pending charges or matters arising out of the same incident for which the defendant is on trial. Lutherman v. State, 348 So.2d 624 (Fla. 3d DCA 1977); Crespo v. State, 344 So.2d 598 (Fla. 3d DCA 1977).

While the general rule is that witnesses may not be interrogated as to prior arrests or pending charges, but only as to prior convictions, this prohibition against evidence as to charges pending against a witness does not apply where the pending charges arise out of the same episode giving rise to the charges on which the defendant is being tried. Fulton v. State, 335 So.2d 280, 283 (Fla.1976).

While it may be true, as the State suggests, that the fight alone was reason enough for Castahile to dislike appellant and to wish to see appellant convicted, the fact that the conviction of appellant could affect the disposition of the charges against Castahile could well have given rise to an additional motive for Castahile’s testimony, a motive which the defense was entitled to attempt to develop on cross-examination.

Accordingly, the judgment and sentence against appellant are REVERSED and the cause REMANDED for a new trial.

BOARDMAN, A. C. J., and DANAHY, J., concur.


author: GRIMES, Chief Judge.

text:
    Don G. MASON, Appellant, v. Eva N. MASON, Appellee.
    No. 79-59.
    District Court of Appeal of Florida, Second District.
    May 25, 1979.
    Wayne P. Dean, Jr., Groveland, for appellant.
    C. John Coniglio, P. A., Wildwood, for appellee.
   GRIMES, Chief Judge.

The husband appeals from an order of partition of joint property entered subsequent to an order of dissolution of marriage. Appellant argues that because the order of dissolution was dispositive of the property rights of the parties, the court was without jurisdiction to subsequently modify the disposition of property. We agree and reverse.

After an uncontested petition for dissolution and agreement by the parties for property settlement, the trial court entered the following order:

1. That the bonds of matrimony heretofore existing between the husband and the wife herein are hereby forever dissolved and set aside, and that the said marriage is dissolved a vinculo.
2. That the parties hereto have stipulated in open court that they are the joint owners of certain real, personal and intangible personal property, and that in order to make an equitable division thereof, the Petitioner-Wife, Eva N. Mason, shall within two (2) weeks from the date of this order make two (2) separate lists of said jointly owned property, dividing the property in a manner which she considers to be fair and equitable, and the Respondent-Husband shall have the choice of which list he shall receive. The Respondent-Husband shall make his determination within two (2) weeks after his receipt of said lists, and each party shall immediately thereafter execute any and all necessary documents to convey to the other party all their right, title, and interest therein.
3. That the Respondent-Husband shall, upon receipt of this order, return to the Petitioner-Wife, the Captain’s Chair which he removed from her residence.
4. That this court does hereby retain jurisdiction of this cause and the parties hereto.

Two weeks later the husband filed an objection to the wife’s filing of three property lists rather than the two lists referred to in the order. The wife than obtained permission to file an amended complaint in which she prayed for partition of the jointly owned property. The husband moved to dismiss contending that the order of dissolution precluded further action in the matter. The court denied the motion to dismiss and entered a judgment directing partition of the jointly owned real and personal property.

Ordinarily a court has no jurisdiction to modify property rights after an adjudication of those rights has been made in the judgment of dissolution. Finston v. Finston, 160 Fla. 935, 37 So.2d 423 (1948); Simon v. Simon, 293 So.2d 780 (Fla.3d DCA 1974). Property rights not adjudicated on dissolution can be determined later when jurisdiction to do so has been reserved. Galbut v. Garfinkl, 340 So.2d 470 (Fla.1976); Hyman v. Hyman, 310 So.2d 378 (Fla.2d DCA 1975), cert. discharged 329 So.2d 299 (1976); Seale v. Seale, 350 So.2d 96 (Fla. 1st DCA 1977). However, the reservation of jurisdiction contemplated by the foregoing cases is a specific reservation for the purpose of making a later adjudication of property rights.

The general reservation of jurisdiction contained in the dissolution order entered below was insufficient to preserve the court’s jurisdiction to subsequently alter the property rights. The dissolution order was self-executing, directing the parties to convey joint property under an orderly procedure. No further judicial labor was required or contemplated other than enforcement, should such become necessary. See S. L. T. Warehouse Co. v. Webb, 304 So.2d 97 (Fla.1974).

The order of dissolution was a final judgment determining the property rights of the parties. The court was without jurisdiction to enter a later contradictory judgment directing partition.

REVERSED.

SCHEB and RYDER, JJ., concur.


text:
    Lee Hiram MARTIN, a/k/a “Don”, Appellant, v. STATE of Florida, Appellee.
    No. LL-157.
    District Court of Appeal of Florida, First District.
    May 25, 1979.
    Michael J. Minerva, Public Defender, John D. C. Newton, II and Margaret Good, Asst. Public Defenders, for appellant.
    Jim Smith, Atty. Gen., and Miguel A. Olivella, Asst. Atty. Gen., for appellee.
   PER CURIAM.

Appellant’s 15-year sentence is vacated on authority of Massey v. State, 348 So.2d 1244 (Fla. 1st DCA 1977) and the cause is remanded for resentencing not to exceed five years.

ROBERT P. SMITH, Jr., Acting C. J., and ERVIN and LARRY G. SMITH, JJ., concur.


author: LARRY G. SMITH, Judge.

text:
    Clifford REVELL, D. D. S., Appellant, v. FLORIDA DEPARTMENT OF LABOR AND EMPLOYMENT SECURITY, DIVISION OF EMPLOYMENT SECURITY, and Linda F. Idelson, Appellees.
    No. MM-245.
    District Court of Appeal of Florida, First District.
    May 25, 1979.

      Ken Davis of Davis & Judkins, Tallahassee, for appellant.
    James R. Parks, Miami, and John L. Bris-coe, Tallahassee, for appellees.
   LARRY G. SMITH, Judge.

Appellant appeals from a final order of the Unemployment Appeals Commission which upheld the decision of an appeals referee, and denied appellant’s request for rehearing to consider new and additional evidence in an unemployment compensation proceeding. We find error in the procedures followed by the appeals referee and approved by the Unemployment Appeals Commission, and therefore reverse.

The factual issue before the administrative tribunal was whether Linda F. Idelson, a former employee of Dr. Clifford Revell, D.D.S., appellant, was discharged from her employment because of pregnancy, or whether she voluntarily left her employment without good cause attributable to her employer. A claims examiner determined that the employee was discharged when she was replaced by a former employee. The doctor duly appealed this decision and the matter was referred to an appeals referee for hearing.

The first hearing was held in Tallahassee. Appellant appeared and gave sworn testimony, but the claimant did not appear. She was, however, represented by counsel at that hearing who participated and cross-examined appellant. The non-appearance of claimant was explained by the referee at the commencement of the hearing by reciting into the record information apparently conveyed to him by letter from the claimant to the effect that she had moved to a new address, and was then residing in Clear-water, Florida. At the conclusion of appellant’s testimony claimant’s attorney referred to the fact that there appeared to be some “controverted testimony”, and requested that the testimony of claimant be taken in Clearwater before a determination was made. Without ruling on the request for additional testimony, the referee, addressing himself to appellant, observed that “if there is any additional hearing, you will receive a copy of the hearing notice”, and: “Although it is not necessary that you travel to Clearwater for a hearing, if you so desire, you will . . . receive a copy . and tell you the date, time and place if you want to go down to Clearwater for another hearing”.

The appeals referee thereafter gave notice of an additional hearing scheduled for June 2, 1978 in Clearwater, but neither claimant nor appellant appeared. On June 21, 1978 the appeals referee entered his decision reversing the determination of the claims examiner, and holding that the claimant voluntarily left her employment without good cause attributable to her employer.

In the meantime, a letter from claimant to the appeals referee dated June 6, 1978 was finding its way to the appeals referee. In her letter, claimant explained that she was “out of town” and didn’t receive notice in time to attend the hearing, and requested another hearing. On June 30, 1978, acting upon claimant’s letter alone, and without notice to appellant, or any opportunity to object or respond, the appeals referee entered an order rescinding and recalling his decision of June 21, 1978.

On July 5, 1978 the appeals referee sent out notice of a third hearing scheduled for July 12, 1978 in Clearwater. A notation informed the parties that the hearing was “to secure claimant’s testimony”, but “all parties may appear and testify if they so desire”. At the Clearwater hearing (which was not attended by appellant) the claimant gave testimony in response to questions put to her by the appeals referee (a different referee than the one who held the Tallahassee hearing). A tape recording of this testimony was then apparently transmitted back to the original referee in Tallahassee and on July 28,1978, he entered his decision reversing his original decision of June 21. The new order held that the claimant was discharged, but not for misconduct connected with her work; and further, that the appellant’s employment record was properly chargeable with unemployment compensation benefit payments made to the claimant.

Appellant’s appeal and request for additional hearing was denied by the Unemployment Appeals Commission, and appellant then filed his appeal with this court.

Appellant’s first point for reversal argues the absence of substantial competent evidence to support the referee’s finding that the claimant was discharged from her employment. We pretermit consideration of this point because of our conclusion that procedural errors require that this cause be remanded for further hearing.

In Boyd v. Southeastern Telephone Company, 105 So.2d 889 (Fla. 1st DCA 1958), cert. dism. 114 So.2d 1 (Fla.1959), this court adopted the principle that a quasi-judicial body has the power of its own motion or on request to correct or amend an order still under its control without notice or hearing to interested parties under certain conditions, those being as stated in State ex rel. Burr v. Seaboard Air Line Ry., Co., 93 Fla. 104, 111 So. 391 (Fla.1927):

“The law is also well settled that the railroad commission, like a court, may on its own motion or by request correct or amend any order still under its control without notice and hearing to parties interested, provided such parties cannot suffer by reason of the correction or amendment, or if the matters corrected and amended were embraced in testimony taken at a previous hearing.” (111 So. at page 392)

See also Leonard Bros. Transfer & Storage Co. v. Douglass, 159 Fla. 510, 32 So.2d 156 (Fla.1947). In Boyd, the court pointed out, however, that the order with which it was concerned was a temporary order, still clearly under the commission’s control when it entered its amended order so that the proviso clause in the above quoted rule could not be invoked.

The June 21st decision of the appeals referee here became final within ten days after the day of mailing, unless, within ten days after mailing further review was initiated in accordance with the statute. Under Section 443.07(4)(c) such review may be initiated by the board of review, on its own motion, or the board may allow an appeal on application filed within the proper time by any party entitled to notice of the referee’s decision. Thus it appears from a careful reading of the statute governing appeals to the appeals referee there is no specific provision for recision or recalling of a final decision by the referee upon his own initiative. The statute provides that his decisions “shall be final” unless properly appealed to the board, or unless the board on its own motion initiates a review of the decision. Neither event occurred here. Unlike the circumstances dealt with in the Boyd case, supra, the order was not temporary, and it indeed appeared that the rights of the appellant did suffer by reason of the cancellation of the prior decision in his favor. It is noted further that the letter from the claimant to the referee which prompted reversal of the June 21 decision was dated June 6. Notice of the decision was mailed to the parties on June 21. Since the letter was dated before the June 21 order was entered a question arises whether the June 6 letter could be considered appropriate to initiate a review pursuant to the requirement that an application for review be filed “within 10 days after the delivery” of notice of the referee’s decision.

For the foregoing reasons we find that the referee’s recision of his final order dated June 21 was unauthorized, and in any event, before the final decision in favor of appellant on the merits was reversed appellant was entitled to notice of the proposed action and the opportunity to object and request a hearing if necessary.

Appellant also complains of the referee’s action in convening a second hearing in Clearwater, 250 miles away from employer’s place of residence, where the claim arose and was filed; and he further complains of the denial of his request for the opportunity to submit further evidence in rebuttal after the testimony of the claimant was taken. In this connection we note that the board is authorized to adopt regulations governing the presentation of claims and appeals (Section 443.07(4)(d), Florida Statutes) pursuant to which it has adopted Rule 8B-5.11(b) providing for rebuttal evidence, and Rule 8B-5.11(f) which provides as follows:

“(f) In addition to the evidence presented at the hearing, the referee may request or obtain any further evidence he deems necessary; provided that where additional evidence is so taken, the parties shall be given the opportunity of examining, cross-examining and rebutting such evidence.” (Fla.Admin.Code R. 8B-5.11(f))

Thus, under either rule, appellant was entitled to present evidence in rebuttal of claimant’s testimony at the second hearing. We do not think that appellant should be foreclosed by his failure to appear at the Clearwater hearing. As previously noted, after the first hearing the appeals referee indicated to appellant that it would not be necessary for him to appear at a later hearing if one was held, and we think appellant is justified in his contention that a second hearing 250 miles removed from the place where the appellant maintains his practice does not afford him a reasonable opportunity to be heard. Cf. Drogaris v. Martine’s, Incorporated, 118 So.2d 95 (Fla. 1st DCA 1960). This is particularly true in view of the fact that appellant had already attended the first scheduled hearing, and claimant’s failure to appear at that hearing was excused by the referee because she then resided 250 miles from Tallahassee. On oral argument counsel for appellee admitted, and our examination of the rules confirms, that no provision is made with respect to the place of hearings, nor the circumstances under which an interested party can be compelled to attend multiple hearings at widely separated geographical locations in the state. The absence of any rule or regulation to guide the discretion of appeals referees in setting hearings may well be an invitation to arbitrary and capricious action; and although the court cannot require the adoption of a specific rule, Citizens of Florida v. Mayo, 357 So.2d 731 (Fla.1978), a court may very well view the failure to adopt necessary rules as a failure to comply with Section 120.53, Florida Statutes, which in itself under Section 120.68(8) may be presumed to be a material error in procedure.

It is our conclusion that the fairness of the proceedings or the correctness of the action was substantially impaired by material errors in procedure, or a failure to follow prescribed procedure, and that the requirements of due process entitle appellant to a full opportunity to appear and present rebuttal evidence prior to a final decision on his appeal.

Accordingly, the order appealed from is reversed and the cause is remanded for further proceedings as directed by this opinion.

ROBERT P. SMITH, Acting C. J., and ERVIN, J., concur.

      . So designated by the parties, although Ch. 77-399, Laws of Florida, created a “Board of Review” for the purpose of determining all unemployment compensation appeals under Ch. 443, Florida Statutes. Ch. 77-399, Laws of Fla., was in effect at the time of the proceedings below. Ch. 78-201, Laws of Fla., changed the name of the Board of Review to Unemployment Appeals Commission effective October 1, 1978. Section 443.07(4)(a)(b)(c), Florida Statutes (Supp.1978), continues to refer to the Board of Review.

      . Section 443.07(3)(a), Florida Statutes.

      . Section 443.07(4), Florida Statutes.

      .Presumably the June 2 hearing scheduled in Clearwater.

      . Section 443.07(4)(b)(3), Florida Statutes.

      . Sections 443.07(4)(b)(3) and 443.07(4)(c), Florida Statutes.

      . See also Section 120.57(l)(b)(4).

      . Appellant states in his brief that the monetary cost of leaving his dental practice in Tallahassee and travelling to Clearwater would exceed the economic consequences of having his unemployment tax account charged because of the claim.


text:
    Michael VAN WILPEN, Appellant, v. Carrie VAN WILPEN, Appellee.
    No. 78-680.
    District Court of Appeal of Florida, Third District.
    May 29, 1979.
    Helliwell, Melrose & DeWolf and Robert J. Schaffer, Miami, for appellant.

      Richard M. Gale, George E. Barket, Miami, for appellee.
    Before HENDRY and KEHOE, JJ., and SCHULZ, GEORGE E. (Ret.), Associate Judge.
   PER CURIAM.

Affirmed. Shaw v. Shaw, 334 So.2d 13 (Fla.1976).


text:
    Robert J. LEWISON, as Trustee, Appellant, v. GABROS CONSTRUCTION CORPORATION, Appellee.
    No. 78-699.
    District Court of Appeal of Florida, Third District.
    May 29, 1979.
    Robert J. Lewison, in pro. per.
    Sanford H. Kramer, Coconut Grove, for appellee.
    Before HUBBART, KEHOE and SCHWARTZ, JJ.
   PER CURIAM.

Appellant, defendant below, in a mechanic’s lien foreclosure action brings this appeal from a money judgment awarded to appel-lee after a non-jury trial. After carefully considering each of the points raised by appellant on appeal, we are of the opinion that appellant has failed to show any reversible error; therefore, based upon the following cases and the general rules of appeals, the judgment appealed is affirmed. See Rice Window Manufacturing Co. v. Evans, 71 So.2d 164 (Fla.1954); Phillips v. Sanchez, 35 Fla. 187, 17 So. 363 (1895); Pilafin v. Cherry, 355 So.2d 847 (Fla. 3d DCA 1978); Damiano v. Weinstein, 355 So.2d 819 (Fla. 3d DCA 1978); McGuire v. Consolidated Electrical Supply, Inc., 329 So.2d 411 (Fla. 4th DCA 1976); Deltona Corporation v. Indian Palms, Inc., 323 So.2d 282 (Fla. 1st DCA 1975); Glusman v. Lieberman, 285 So.2d 29 (Fla. 4th DCA 1973); Emery v. International Glass and Manufacturing, Inc., 249 So.2d 496 (Fla. 2d DCA 1971); Phelps v. T. O. Mahaffee, Inc., 156 So.2d 900 (Fla. 2d DCA 1963); and § 59.041, Fla.Stats. (1977).


text:
    Nirda LOPEZ and Evarado Lopez, Appellants, v. Michael SARGAVAKIAN, Edward Sargavakian, and the Travelers Indemnity Company, Appellees.
    No. 78-838.
    District Court of Appeal of Florida, Third District.
    May 29, 1979.
    Kaplan, Sicking, Hessen, Sugarman, Ro-senthal & Zientz and Joel Lumer, Miami, for appellants.
    Adams & Ward and Amy Shield Levine, Miami, for appellees.
    Before HENDRY and KEHOE, JJ., and SCHULZ, GEORGE E. (Ret.), Associate Judge.
   PER CURIAM.

Affirmed in all respects based upon the following authorities: Miller v. James, 187 So.2d 901 (Fla. 2d DCA 1966); Great Amer ican Insurance Company v. Cornwell, 191 So.2d 435 (Fla. 1st DCA 1966); and Schwab v. Tolley, 345 So.2d 747 (Fla. 4th DCA 1977).


text:
    STATE of Florida, Appellant, v. Jose Alberto GONZALEZ, Appellee.
    No. 78-1271.
    District Court of Appeal of Florida, Third District.
    May 29, 1979.
    Janet Reno, State’s Atty., and Milton Robbins, Asst. State’s Atty., for appellant.
    Carl H. Lida, Miami, for appellee.
    Before HENDRY and KEHOE, JJ., and SCHULZ, GEORGE E. (Ret.), Associate Judge.
   PER CURIAM.

Reversed and remanded upon the authority of State of Florida v. Nunez, 368 So.2d 422 (Fla. 3d DCA 1979).


text:
    Joyce L. THOMPSON, Appellant, v. Ray Walter THOMPSON, Appellee.
    No. 78-1915.
    District Court of Appeal of Florida, Third District.
    May 29, 1979.
    Kenneth H. Smith, Tavernier, for appellant.
    J. Edward Worton, Key West, for appel-lee.
    Before PEARSON, HUBBART and SCHWARTZ, JJ.
   PER CURIAM.

Affirmed. See Herzog v. Herzog, 346 So.2d 56 (Fla.1977); Shaw v. Shaw, 334 So.2d 13 (Fla.1976), and Krischer v. Krischer, 337 So.2d 1011 (Fla.3d DCA 1976).


text:
    Dwayne BEAUREGARD, Appellant, v. CITY OF MIAMI, Appellee.
    No. 78-2088.
    District Court of Appeal of Florida, Third District.
    May 29, 1979.
    Terrance J. McWilliams and Andrew H. Boros, Miami, for appellant.
    Goodwin, Ryskamp, Welcher & Carrier and Arthur M. Simon, Miami, for appellee.

      Before PEARSON, HUBBART and SCHWARTZ, JJ.
   PER CURIAM.

The order dismissing the appellant’s complaint with prejudice is reversed and the cause remanded to the trial court with directions to dismiss the said complaint with leave to amend based on the authority of Commercial Carrier Corp. v. Indian River County, 371 So.2d 1010 (Fla.1979); Blackburn v. Dorta, 348 So.2d 287 (Fla.1977); Petterson v. Concrete Construction, Inc., 202 So.2d 191, 197-98 (Fla. 4th DCA 1967); Fla.R.Civ.P. 1.190(a). Save for the failure to allege proper notice to the appellee pursuant to Section 768.28(6), Florida Statutes (1977), which omission could be cured upon proper amendment, it is our view that the complaint herein states a proper cause of action sounding in negligence against the appellee. It was, accordingly, reversible error to dismiss the appellant’s complaint with prejudice.

Reversed and remanded.


text:
    John L. GOSSELIN, Appellant, v. Howard FREIDIN, Appellee.
    No. 78-2180.
    District Court of Appeal of Florida, Third District.
    May 29, 1979.
    Lewis W. Miles, II, Miami, for appellant.
    Wicker, Smith, Blomqvist, Davant, McMath, Tutan & O’Hara and Richard A. Sherman, Miami, for appellee.
    Before PEARSON, HUBBART and SCHWARTZ, JJ.
   PER CURIAM.

The appellant appeals from a final order dismissing with prejudice his counterclaim against the plaintiff in an interpleader action. We reverse upon the holdings that (a) there was no basis for applying the principles of res judicata or collateral estoppel so as to bar the appellant’s claim, Dixie Farms, Inc. v. Hertz Corp., 343 So.2d 633 (Fla. 3d DCA 1977), cf. Knoll v. Socony Mobil Oil Co., 369 F.2d 425, 429 (10th Cir. 1966), cert. denied, 386 U.S. 977, 87 S.Ct. 1173, 18 L.Ed.2d 138 (1967); (b) the counterclaim was properly asserted against the plaintiff-stakeholder in interpleader, Jordan v. Finlay, 370 So.2d 431 (Fla. 3d DCA 1979) (Case no. 78-1630, opinion filed, May 1, 1979); 7 Wright and Miller, Federal Practice and Procedure, § 1714 (1972) text and authorities at nn. 50-52, 54; and (c) the counterclaim sufficiently alleged a cause of action against the plaintiff for legal malpractice. The cause is remanded with directions to deny the motion to dismiss the counterclaim and for further consistent proceedings.

Reversed and remanded.


author: ROBERT P. SMITH, Jr., Judge. MILLS, Acting Chief Judge,

text:
    Roger NEWTON, Farris Tarantino, Jimmy Nichols, Estelle Davis, and Edward Tolliver, City Commissioners, City of Apalachicola, Florida, and Dorothy Rolstad, as City Clerk, Appellants, v. Martha L. MARTINA, as Chairman of Recall Committee, City of Apalachicola, Appellee.
    No. NN-42.
    District Court of Appeal of Florida, First District.
    May 30, 1979.

      Alfred 0. Shuler, of Shuler & Shuler, Apalachicola, for appellants.
    Brandt W. Davis, of Watkins & Watkins, Apalachicola, for appellee.
   ROBERT P. SMITH, Jr., Judge.

The City Commissioners of the City of Apalachicola and the City Clerk appeal from the circuit court’s final judgment on appellee’s petition for mandamus and for injunctive and declaratory relief, holding that appellee’s recall petition is effective to require a recall election of four commissioners, should they not resign. Section 100.-361(2), Florida Statutes (1977). One judge dissenting, this court previously affirmed the circuit court’s nonfinal order upholding the sufficiency of the charges of misfeasance and neglect of official duties. Tolliver v. Martina, 367 So.2d 655 (Fla. 1st DCA 1979); contrast Bent v. Ballantyne, 368 So.2d 351 (Fla.1979) . We now consider the circuit court’s judgment that, after it was certified to the City Commission that the requisite percentage of qualified electors had signed the recall petition, the City Clerk had no power to purge a number of signatures at the signatories’ request, reducing their number below the required percentage of qualified electors. We affirm.

Section 100.361, Florida Statutes (1977), prescribes the right of electors of a municipality to remove “any member of the governing body” by an election called in response to a recall petition charging statutory ground for removal and bearing, in the case of a city the size of Apalachicola, the signatures of 250 or ten percent of the registered electors, whichever, is greater.

Such a petition was filed with the appellant City Clerk, as prescribed by Section 100.361(l)(d). On December 6, 1978, as required by (l)(d), the Clerk submitted the petition (i. e., the signed copies or “counterparts”) to the county supervisor of elections, whose duty it was to determine, within 30 days, “whether the petition contains the required valid signatures.” If the petition does not contain the required signatures, the Clerk so certifies to the governing body — here the City Commission — “and the matter shall be at an end.” Section 100.361(l)(e). But here the Supervisor of Elections, on December 6, 1978, certified to the Commission and to the Clerk that the requisite percentage of qualified electors had signed the petition and counterparts. The Clerk was absent from her office on December 6 and 7. Then, on Monday, December 11, the Clerk received 83 or 84 demands from signatories that their signatures be stricken from the petition, and she on December 11 notified the Commission that their signatures would be stricken, invalidating the petition for lack of the needed signatures.

Subsection 100.361(l)(g) affords the opportunity to all petition signatories to “demand in writing that his name be stricken from the petition.” But the same subsection concludes:

However, no signature may be stricken after the city auditor or clerk, or his equivalent, has certified the total of electors to the governing body.
The circuit court held:
It appears implicit that the reporting of the findings to the governing body is accomplished by the delivery of the certificate, or other documentation of the findings, to the office of the Clerk of the governing body. If the Clerk is not physically there, such delivery is nevertheless effective. It is only necessary to deliver the information to the site of the city records and the office of the custodian of such records. Procedures subsequent to this are also purely ministerial, with the findings of the Supervisor final and determinative of subsequent procedures to be followed. Implicit in this system is the final ascertainment if there are sufficient signatures, unwithdrawn before delivery to the Supervisor of Elections, to activate the holding of a recall election. Such deadline for withdrawal of a signature is the delivery to the Supervisor of the assembled “counterparts.” Thereafter there are the purely mechanical procedures to ascertain the exact number of valid signatures of qualified electors and the recording and publishing to the governing body of the number and percentage of qualified electors who have validly signed.
. Because of the foregoing interpretations of the statute, it is thus adjudged that upon the delivery of the findings and certificate of the findings of the Supervisor to the office of the City Clerk on December 7,1978, that there remained no authority or power in the Clerk to strike any further names, but that she was under a duty to serve on the persons sought to be recalled notice of the fact that the number of signatures on the “counterparts” of the Recall Petition and Defense amount to 15% of the qualified electors and to deliver to the City Commission the report and certificate of the County Supervisor as to the percentage of qualified voters who signed.
. The Court will regard that as done which should have been done, and as all the persons sought to be recalled are parties to this action, it will be deemed that this Judgment will serve as notice to them that the requisite 15% of the electorate has validly signed the petition, and they are each given the opportunity, within five days of filing this Judgment, to submit a written resignation in accordance with Section 100.361(2). In the event that no such resignation is filed with the City Clerk or if less than all shall submit such resignations, then the undersigned, as Chief Judge of the Second Judicial Circuit, will forthwith fix a day for holding a recall election for such persons as shall not have resigned.

By a lucid opinion, which we entirely approve though we do not set it out at length, the circuit court analyzed the detailed and interrelated provisions of Section 100.361 and found that the actions of the Clerk and Supervisor of Elections on December 6, 1978, put the recall petition beyond dissolution on December 11 through the Clerk’s striking of signatures. The circuit court was correct and its judgment is

AFFIRMED. We dispense with any petition for rehearing. Any stay effected by Fla.R.App.P. 9.310 is vacated effective in five days, and the clerk will then issue our mandate.

ERVIN, J., concurs.

MILLS, Acting C. J., specially concurs.

MILLS, Acting Chief Judge,

specially concurring:

I concur but would not dispense with petition for rehearing nor the provisions of Fla.R.App.P. 9.310.

      . Bent held that charges of malfeasance must be paid in specific terms showing a violation of law. The case before us involves no charges of malfeasance.


text:
    Kenneth Dale PALMER, Appellant, v. STATE of Florida, Appellee.
    Nos. MM-260, MM-338.
    District Court of Appeal of Florida, First District.
    May 31, 1979.
    Michael J. Minerva, Public Defender, and Louis G. Carres, Asst. Public Defender, for appellant.
    Jim Smith, Atty. Gen., and Lee Mandell, Asst. Atty. Gen., for appellee.
   PER CURIAM.

The judgment of conviction for burglary of a dwelling and the order denying appellant’s motion for post-conviction relief are affirmed. The cause is remanded to the trial court for a determination of whether appellant is entitled to any jail time credit as required by Section 921.161(1), Florida Statutes (1977). Appellant need not be present for this purpose.

MILLS, Acting C. J., and ROBERT P. SMITH, Jr., and ERYIN, JJ., concur.


text:
    Donald WATSON, Appellant, v. STATE of Florida, Appellee.
    No. LL-352.
    District Court of Appeal of Florida, First District.
    June 1, 1979.
    Michael J. Minerva, Public Defender, and Louis G. Carres, Asst. Public Defender, for appellant.
    Jim Smith, Atty. Gen., and Wallace E. Allbritton, Asst. Atty. Gen., for appellee.
   PER CURIAM.

Donald Watson appeals his judgment and sentence on second degree grand theft and petit theft, challenging the sufficiency of the evidence to support the conviction and the sentencing procedure. We affirm the judgment, finding that the evidence, though circumstantial, was sufficient to support the conviction. We must, however, vacate the sentence and remand.

Rule 3.710, Fla.R.Crim.P., provides that the court may not impose any discretionary sentence other than probation on any defendant who is found guilty of his first felony or who is under the age of eighteen years until after a presentence investigation report has been prepared and considered. The record in this case establishes that appellant was over eighteen years of age, but does not show a prior felony conviction. No PSI was considered. Under the circumstances we must vacate the sentence and remand this case to the trial court for resentencing under Rule 3.710. Beverly v. State, 330 So.2d 527 (Fla. 1st DCA 1976).

MILLS, Acting C. J., and ROBERT P. SMITH, Jr., and ERVIN, JJ., concur.