author: OTT, Judge.

text:
    Mary Ann ROSE, Appellant, v. Joseph P. D’ALESSANDRO, State Attorney Twentieth Judicial Circuit, Appellee.
    No. 77-2053.
    District Court of Appeal of Florida, Second District.
    Oct. 6, 1978.
    Rehearing Denied Nov. 27, 1978.

      James R. Long, Ft. Myers, for appellant.
    Joseph P. D’Alessandro, State’s Atty., Louis S. St. Laurent, Chief Asst. State’s Atty., and Radford Sturgis, Asst. State’s Atty., Ft. Myers, for appellee.
   OTT, Judge.

The appellee state attorney received either oral or written sworn accusations or allegations from one or more persons charging appellant with destruction of surveyor’s stakes. In due course, the appellee advised that no criminal charges or proceedings would be instituted against the appellant.

Thereafter, appellant demanded that ap-pellee furnish a certified copy of any affidavit, sworn complaint, allegation, or charge received by him. Upon appellee’s refusal to do so, appellant sued to secure an order that such are open to public examination, inspection and copying as a “public record” pursuant to the provisions of Section 119.07, Florida Statutes (Supp.1978). The trial court entered judgment for appellee on the pleadings. We affirm.

We hold that while statements, allegations, charges, complaints or affidavits taken or received by the state attorney in the discharge of his investigatory duties are or may be “public records” for certain purposes, they are not open for public view or subject to the provisions of Section 119.07, Florida Statutes, unless made so by subsequent developments.

Section 119.07, Florida Statutes is the statutory provision governing the “inspection and examination of records” and “exemptions.” The statute provides in relevant part:

119.07 Inspection and examination of records; exemptions:
(1) Every person who has custody of public records shall permit the records to be inspected and examined by any person desiring to do so, at reasonable times, under reasonable conditions, and under supervision by the custodian of the records or his designee. The custodian shall furnish copies or certified copies of the records upon payment of fees as prescribed by law or, if fees are not prescribed by law, upon payment of the actual cost of duplication of the copies. Unless otherwise provided by law, the fees to be charged for duplication of public records shall be collected, deposited, and accounted for in the manner prescribed for other operating funds of the agency.
(2)(a) All public records which presently are provided by law to be confidential or which are prohibited from being inspected by the public, whether by general or special law, shall be exempt from the provisions of subsection (1).
(b) All public records referred to in ss. 198.09, 199.222, 228.093, 228.075, 624.-311(2), 624.319(3) and (4), 657.061(3), 658.-10(3), and 794.03, are exempt from the provisions of subsection (1).

Appellant contends that (1) should govern since none of the exemptions “provided by law” in (2)(a) and (b) are applicable. We disagree. In 1976 Op. Att’y Gen. Fla. 076-156 (August 10, 1976) it was stated:

The investigatory records and materials compiled by the State Attorney’s Office prior to the trial of a criminal case pursuant to its statutory investigatory or pros-ecutorial duties, §§ 27.02, 27.03, 27.04, 27.255, F.S., are confidential pursuant to the “police secrets” rule and therefore exempted from public inspection under the Public Records Law (Ch. 119, F.S.), prior to and following prosecution and final judgment unless such information or materials become a part of the public record of a trial where such records and materials contain information which, if released publicly, would burden effective law enforcement. The “police secrets” rule does not exempt records such as arrest records, autopsy reports, business records, copies of informations and indictments, and the like. These records -are public records subject to public inspection under Ch. 119, F.S., unless a specific exemption exists by statute.

Clearly, this pronouncement of the attorney general suggests the critical importance of keeping such documents confidential. If this were not the case, the investigative process of state attorneys and law enforcement entities generally would be severely disrupted; people would never give statements if they were not to be held in confidence. There is no question but that the state attorney’s processes and products of investigation have historically been considered immune from public disclosure or inspection. It is the public that is protected by such a policy.

The 1973 Op. Att’y Gen. Fla. 073-166 (May 17, 1973) ruled that:

[R]ecords of the internal investigation unit which involve an investigation of criminal activity would be confidential. However, to the extent that such records simply involve office or personnel matters not reasonably related to the investigation of a crime, the records are public records and must be made available for public inspection.

The case law is replete with statements indicating that not all public records or documents are open to public inspection. In Vogel v. Gruaz, 110 U.S. 311, 315, 4 S.Ct. 12, 14, 28 L.Ed. 158, 160 (1884) the Court stated:

[I]t was the province and the privilege of any person who knew of facts tending to show the commission of a crime, to lay those facts before the public officer whose duty it was to commence a prosecution for the crime. Public policy will protect all such communications absolutely, and without reference to the motive or intent of the informer or the question of probable cause; .

In Lee v. Beach Pub. Co., 127 Fla. 600, 173 So. 440 (1937) the court stated:

‘The right of inspection does not extend to all public records or documents, for public policy demands that some of them, although of a public nature, must be kept secret and free from common inspection, such for example as, . relating to the apprehension and prosecution of criminals.’

173 So. at 442 quoting 23 R.C.L. 161. In Patterson v. The Tribune Co., 146 So.2d 623, 626 (Fla.2d DCA 1962) the court stated:

Generally public records are subject to the right of inspection and publication; but this right does not apply to all public records since public policy requires that some of them, although of a public nature, be kept secret and free from public inspection.

In Getter v. Yanks, 290 So.2d 543, 544 (Fla.3d DCA 1974) the court stated:

Sound public policy dictates that in certain instances public records are privileged, even where such records would serve private litigants in a civil case, as in the instant case.

None of the above cases are squarely on point factually with the instant case. However, they strongly suggest the result we reach.

Appellant contends that the recent case of State ex rel. Veale v. City of Boca Raton, 353 So.2d 1194 (Fla.4th DCA 1977) is authority for its argument. We disagree. In Vea le a report was prepared by an assistant city attorney at the direction of the city council. This was an investigative report delving into suspected irregularities in the city’s building department. The Fourth District Court of Appeal held that the report was not one “provided by law” to be confidential and hence was subject to disclosure as a public record. The court relied upon Section 119.07(2)(a), Florida Statutes (discussed above) as authority. That investigative police reports are exempt was admitted by the Veale court. 353 So.2d at 1197, n. 1.

We find no error in the action of the trial court and its decision, therefore, is affirmed.

HOBSON, Acting C. J., and PIERCE, WILLIAM C., J. (Ret.), concur.


source: Caselaw Access Project

author: GRIMES, Chief Judge.

license: Public Domain

text:
    Rodolfo GARI, Appellant, v. STATE of Florida, Appellee.
    No. 77-2122.
    District Court of Appeal of Florida, Second District.
    Oct. 6, 1978.
    Rehearing Denied Nov. 27, 1978.
    Jack 0. Johnson, Public Defender, Bar-tow, and Karal B. Rushing, Asst. Public Defender, Tampa, for appellant.
    Robert L. Shevin, Atty. Gen., Tallahassee, and C. Marie King, Asst. Atty. Gen., Tampa, for appellee.
   GRIMES, Chief Judge.

This is an appeal from a conviction of receiving stolen property.

A number of personal items were stolen from the trailer of Ida H. Gottshall. A few days later she accompanied Detective Napo-li to appellant’s store where she spotted several of her possessions which had been stolen. Napoli then placed appellant under arrest. The appellant spoke only Spanish, but Napoli could not speak Spanish even though he understood it when spoken. Therefore, he had Ms. Gottshall translate for him so that he could give appellant the Miranda rights and in order that he might interrogate appellant. Through Ms. Gotts-hall acting as an interpreter, appellant consented to a search of his entire store. As a result of the search additional possessions of Ms. Gottshall were found. During the course of the interrogation appellant wrote a statement in Spanish explaining how he came into possession of the stolen property.

During the direct examination of Detective Napoli the appellant’s statement was introduced into evidence as a state exhibit. At the request of the state the court directed an interpreter to read the statement to the jury in English. After the state rested, appellant introduced as an exhibit a typed English translation of his statement. The only witness for the defense was appellant himself. Over appellant’s objection, his counsel was not permitted to make the concluding argument to the jury.

Fla.R.Crim.P. 3.250 provides that if a defendant offers no testimony on his own behalf except his own he shall be entitled to the concluding argument before the jury. The erroneous denial of this right cannot be deemed harmless error. Raysor v. State, 272 So.2d 867 (Fla. 4th DCA 1973).

The determination of whether appellant’s counsel was entitled to close depends upon the effect of appellant’s introduction of the English translation of his statement. The state properly notes that, ordinarily, the introduction of documentary evidence by a defendant forfeits his right to make the concluding argument. Talley v. State, 160 Fla. 593, 36 So.2d 201 (1948); Crosby v. State, 90 Fla. 381, 106 So. 741 (1925). However, we believe this case is controlled by the exception discussed in Lyttle v. State, 320 So.2d 424 (Fla. 2d DCA 1975).

In Lyttle, a state witness on direct examination mentioned a note sent by the defendant’s mother to the defendant. At the request of the prosecuting attorney the witness then read the note verbatim in front of the jury. The state did not introduce the note into evidence. On cross-examination, after the defense again asked the witness to read the note, the defendant caused it to be introduced into evidence. On these facts we held that because the note had been identified and read to the jury in the state’s case, it was actually part of the state’s evidence even though the defendant himself later introduced the note into evidence.

The same thing happened here. After introducing the appellant’s Spanish, handwritten statement, the state caused the statement to be read to the jury in English by a translator. It was only thereafter that the appellant introduced as an exhibit an English transcription of the same statement. Under these circumstances, the appellant’s introduction of this exhibit could not deprive him of his important right to make the concluding argument.

The cases of Crosby v. State, supra, and Grimsley v. State, 304 So.2d 493 (Fla. 1st DCA 1974), relied upon by the state are distinguishable. In Crosby, the written receipt in question was first read to the jury while a state’s witness was being cross-examined. In Grimsley, the diagram later introduced into evidence had been drawn by a state’s witness during cross-examination.

The similarity of this case with Lyttle makes it unnecessary for us to consider whether, even if the statement had been first read to the jury during cross-examination, it could be considered as anything other than appellant’s testimony in his own behalf because the statement was written by appellant, himself. Cf. Haddock v. State, 121 Fla. 167, 163 So. 482 (1935). It is also unnecessary for us to rule on the propriety of the restitution ordered as a condition of appellant’s probation. However, because this case is going to have to be retried, we have considered appellant’s argument that his motion to suppress should have been granted, and we find the contention wanting. The motion to suppress was properly denied.

The judgment and sentence are reversed, and the case is remanded for further proceedings.

HOBSON and RYDER, JJ., concur.


text:
    TERINO BROS., INC., Appellant, v. Arthur H. AIREY, Appellee.
    No. 77-1803.
    District Court of Appeal of Florida, Second District.
    Oct. 13, 1978.
    Rehearing Denied Nov. 27, 1978.
    Charles E. Bergmann of Yado, Keel, Nelson, Grandoff, Casper, Bergmann & Newcomer, P.A., Tampa, for appellant.
    Robert K. Eddy of Ñixon & Farnell, Tampa, for appellee.
   OTT, Judge.

We affirm the action of the lower court in setting aside the default judgment entered against the appellee.

Appellant (plaintiff below) bought a tren-chtrailer from appellee (defendant below). About a year and a half later, appellant agreed to purchase a second trenchtrailer upon the express condition that appellee would repair the first trenchtrailer which had become inoperable due to mechanical problems. A written agreement was entered into to this effect. Appellant agreed to furnish the necessary repair parts.

Appellant filed a complaint for damages alleging that the appellee — although promising to make the repairs — had failed to make them and was systematically stripping the first trenchtrailer in order to make repairs on other machines.

The summons and complaint were served on the appellee on March 24, 1977. Appellee did not have an attorney at this stage. He sent a letter to appellant’s attorney but did not file a copy with the clerk. The letter was dated April 8, 1977 and was received by appellant’s attorney on or about April 10, 1977. The opening paragraph of the letter stated as follows:

In reply to papers received from you on March 24th, 1977 regarding Terino Bros.; [sic] Inc. and Arthur Airey I would like to offer the following information.

In the remainder of this letter the appellee asserted that appellant failed to comply with his contract obligation to provide the required repair parts thereby effectively preventing the appellee from performing his contract obligation to repair the tren-chtrailer.

Appellant obtained a default from the clerk on April 25, 1977. A final judgment was entered on August 25, 1977. The ap-pellee was given no notice with respect to the motion for default or the application for final judgment.

On or about September 8, 1977, appellant’s attorney mailed a copy of the final judgment directly to the appellee. Appel-lee promptly secured an attorney, and on September 22, 1977, a motion for relief from judgment was filed. Following a hearing the lower court entered an order setting aside the default and final judgment. The order stated in pertinent part:

[although there had been no formal defensive pleadings filed, the Defendant had within the time required by law written Plaintiff a letter advising of the fact that there was a dispute as to whether the Plaintiff had provided some portions of the equipment that was the subject of the contract resulting in a bona fided [sic] issue as to whether the Plaintiff had fulfilled its contract. .

The several rules in the Rules of Civil Procedure bearing on this case are as follows:

Rule 1.080. Service of Pleadings and Papers
(a) Service; When Required. Unless the court otherwise orders, every pleading subsequent to the initial pleading and every other paper filed in the action, except applications for witness subpoena, shall be served on each party. No service need be made on parties against whom a default has been entered, except that pleadings asserting new or additional claims against them shall be served in the manner provided for service of summons.
(b) Same; How Made. When service is required or permitted to be made upon a party represented by an attorney, service shall be made upon the attorney unless service upon the party is ordered by the court. Service on the attorney or party shall be made by delivering a copy to him or by mailing it to him at his last known address or, if no address is known, by leaving it with the clerk of the court. Delivery of a copy within this rule shall mean (1) handing it to the attorney or to the party or (2) leaving it at his office with his clerk or other person in charge thereof or (3) if there is no one in charge, leaving it in a conspicuous place therein or (4) if the office is closed or the person to be served has no office, leaving it at his usual place of abode with some person of his family above fifteen years of age and informing such person of the contents. Service by mail shall be complete upon mailing.
(c) Same; Numerous Defendants. In actions when the parties are unusually numerous, the court may regulate the service contemplated by these rules on motion or on its initiative in such manner as may be found to be just and reasonable.
(d) Filing. All original papers shall be filed with the court either before service or immediately thereafter. If the original of any bond or other paper is not placed in the court file, a certified copy shall be so placed by the clerk.
(e) Filing With the Court Defined. The filing of papers with the court as required by these rules shall be made by filing them with the clerk, except that the judge may permit the papers to be filed with him in which event he shall note thereon the filing date and transmit them to the clerk.
Rule 1.140. Defenses
(a) When Presented. A defendant shall serve his answer within 20 days after service of original process and the initial pleading on him .
Rule 1.500. Defaults and Final Judgments Thereon
(a) By the Clerk. When a party against whom affirmative relief is sought has failed to file or serve any paper in the action, the party seeking relief may have the clerk enter a default against the party failing to serve or file such paper.
(b) By the Court. When a party against whom affirmative relief is sought has failed to plead or otherwise defend as provided by these rules or any applicable statute or any order of court, the court may enter a default against such party; provided that if such party has filed or served any paper in the action, he shall be served with notice of the application for default.
(d) Setting Aside Default. The court may set aside a default and if a final judgment consequent thereon has been entered, the court may set it aside in accordance with Rule 1.540(b). (emphasis added).

In essence, the court concluded that ap-pellee’s pro per letter to appellant was equivalent to an answer. If this were an answer, it was served within the time specified by Rule 1.140(a). The failure to comply with the filing requirement of Rule 1.080(d) would not be determinative because under Rule 1.500(a) the clerk is not entitled to enter a default when an answer has either been filed or served. Because appellant’s motion for default recited that there had been no filing or service of any paper required by law, the clerk understandably entered a default. Yet, when the court held that the letter constituted an answer, this necessarily vitiated the default. See Pan American World Airways v. Gregory, 96 So.2d 669 (Fla. 3d DCA 1957). Appellant’s attorney may not have believed the letter to be an answer because of its form and the absence of proper filing, but the safer practice would have been to have applied for a default from the court under Rule 1.500(b), which would have dictated giving notice to appellee.

Under the circumstances of this case, we find no gross abuse of discretion in the action of the trial court in construing the letter as an answer and setting aside the default judgment. See North Shore Hospital, Inc. v. Barber, 143 So.2d 849 (Fla.1962); Sterling Drug, Inc. v. Wright, 342 So.2d 503 (Fla.1977); Garcia Ins. Agency, Inc. v. Diaz, 351 So.2d 1137 (Fla. 2d DCA 1977).

The following governing sentiment surrounding default judgments has not changed over the years:

[I]f there be any reasonable doubt in the matter, it should be resolved in favor of granting the application and allowing a trial upon the merits of the case.

State Bank of Eau Gallie v. Raymond, 103 Fla. 649, 656, 138 So. 40, 43 (1931).

AFFIRMED.

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

      . The full text of the letter was as follows:
      In reply to papers received from you on March 24, 1977 regarding Terino Bros., Inc. and Arthur Airey I would like to offer the following information.
      I do not feel that Mr. Terino’s accusations are correct because to begin with there was no battery on the machine in order that it might be taken from its trailer for repair. Mr. Terino furnished me with a broken slide assembly; sprockets for which there was no keyways or keys so that upper and lower shaft assemblies could be assembled and said trailer could not be repaired because machine could not be removed from trailer in order to tilt trailer which is necessary for repair.
      All parts to Mr. Terino’s machine are accountable for. The parts that have been removed were done so for safekeeping. These parts were needed to be removed so that they could be assembled with the parts Mr. Terino was to have supplied. Being that the keys and keyways were not supplied this was not possible. The wheel was removed from the trailer for Mr. Terino’s protection so that same would be protected from theft.
      I furnished Mr. Terino with the necessary numbers in order that he might obtain the proper parts. Where Mr. Terino purchased these parts he was furnished the wrong parts and he evidently neglected to check the parts he purchased against the proper numbers furnished to him. Mr. Terino corrected this but only after much time had elapsed.
      I went to Mr. Terino’s place of business to discuss this situation with him. Mr. Terino became enraged, shaking his fist in my face and using unprintable language so I left.
      We have had the plates put on the chain for months. However, we cannot assemble it without the proper parts as mentioned above.
      I would be happy to meet with you and Mr. Terino to discuss this matter at a time convenient to all.


author: SCHEB, Acting Chief Judge.

text:
    Linda Ruth HITE, a/k/a Lynn, a/k/a Luanna McBrady, Appellant, v. STATE of Florida, Appellee.
    No. 77-2130.
    District Court of Appeal of Florida, Second District.
    Oct. 18, 1978.
    Rehearing Denied Nov. 27, 1978.
    Robert E. Jagger, Public Defender, Dane E. DiSano, Asst. Public Defender, Carolyn Fields, Deborah Morgan and Vivía Ray Punto, Legal Interns, Clearwater, for appellant.
    Robert L. Shevin, Atty. Gen., Tallahassee, and Richard G. Pippinger, Asst. Atty. Gen., Tampa, for appellee.
   SCHEB, Acting Chief Judge.

Appellant Linda Hite was found guilty by a jury of robbery, conspiracy to commit robbery, and felony-murder in the first degree. The trial court sentenced her to life imprisonment for murder; five years for robbery, to run consecutively to the murder sentence; and five years for conspiracy, to run concurrently with the robbery sentence.

Appellant Hite, Clay Ennis, and Gregory Hunter were charged by indictment with conspiring to rob the Friendly Naybor Food Market, robbing it, and murdering the owner of the market in the process. The trial court ordered appellant’s trial severed from that of her two codefendants.

At appellant’s trial the state’s chief witness was her codefendant Ennis. He testified that in the early evening of May 14, 1977, he, Gregory Hunter, and appellant had formulated a plan to rob the market. He said that around eleven o'clock that evening Hunter and appellant had dropped him off near the market. According to the prearranged plan he was to rob the market and then rendezvous with Hunter and appellant at a tavern a half mile away. Ennis admitted that he entered the market with a gun and demanded money from the clerk. Just as he did so Thomas Coleman, the owner of the market and the father of the clerk, pulled into the parking lot. Ennis ordered the clerk into the bathroom. Then, as Coleman came through the door Ennis confronted him. In the ensuing scuffle Coleman was shot and killed. Soon thereafter the clerk freed himself from the bathroom and wrestled the gun away from En-nis. Needless to say, Ennis did not make his appointed rendezvous with Hunter and appellant. Other state’s witnesses corroborated various aspects of Ennis’ testimony.

Appellant testified in her own behalf and denied participation in the conspiracy and the robbery. Though the testimony of appellant and Ennis conflicted in many respects, the jury apparently chose to believe Ennis. Since there was sufficient evidence to sustain the jury’s finding that appellant was guilty of robbery and conspiracy to commit robbery, we affirm these convictions.

More troublesome is appellant’s contention that she could not have been convicted of felony-murder in either the first or second degree on basis of the evidence presented at her trial.

Felony-murder in the first degree is defined in § 782.04(l)(a), Fla.Stat. (1975), as:

The unlawful killing of a human being, when perpetrated from a premeditated design to effect the death of the person killed or any human being, or when committed by a person engaged in the perpetration of, or in the attempt to perpetrate, any arson, involuntary sexual battery, robbery, burglary, kidnapping, aircraft piracy, or unlawful throwing, placing or discharging of a destructive device or bomb, or which resulted from the unlawful distribution of heroin by a person 18 years of age or older when such drug is proven to be the proximate cause of the death of the user, shall be murder in the first degree and shall constitute a capital felony, punishable as provided in s. 775.082. (Emphasis supplied.)

The supreme court has interpreted the emphasized portion of the statute to require that a defendant must personally commit the killing, or at least be personally present aiding and abetting the commission of the underlying felony when the killing occurs, in order to be guilty of felony-murder in the first degree. Adams v. State, 341 So.2d 765, 768 (Fla.1977); see also State v. Dixon, 283 So.2d 1, 11 (Fla.1973). Here the evidence was undisputed that appellant was not personally present at the market when Ennis killed Coleman. Rather, she was waiting at the tavern a half mile away. Although appellant’s criminal liability for the robbery was the same as that of Ennis, appellant does not come within the definition of “one engaged in the perpetration of” the robbery as announced in Dixon and Adams; therefore, she could not have been found guilty of felony-murder in the first degree.

In Dixon and Adams the supreme court had before it the 1972 version of the felony-murder statute, which defined felony-murder in the first degree essentially the same as the present statute. However, at that time felony-murder in the second degree was defined in § 782.04(2) as:

[An unlawful killing] committed in the perpetration of, or in the attempt to perpetrate, any arson, rape, robbery, burglary, kidnapping, aircraft piracy, or the unlawful throwing, placing, or discharge of a destructive device or bomb, except as provided in subsection (1) [which defines felony-murder in the first degree], . shall be murder in the second degree and shall constitute a felony of the first degree, punishable by imprisonment in the state prison for life or for such term of years as may be determined by the court. (Emphasis supplied.)

The emphasized language in the 1972 statute made felony-murder in the second degree essentially a catch-all designed to encompass all felony-murders that did not fall within the definition of felony-murder in the first degree. So, under that statute a person who was an accessory before the fact but was not personally present at the commission of the felony (such as appellant here) could have been guilty of felony-murder in the second degree. Adams v. State, supra, at 769; see also State v. Dixon, supra at 11.

In 1974 the legislature enacted Ch. 74— 383, § 14, Laws of Florida (effective July 1, 1975), which deleted the felony-murder language from § 782.04(2) and redefined felony-murder in the second degree in § 782.-04(3). This new definition of felony-murder, which is still in effect, reads:

When a person is killed in the perpetration of, or in the attempt to perpetrate, any arson, [sexual battery], robbery, burglary, kidnapping, aircraft piracy, or unlawful throwing, placing, or discharging of a destructive device or bomb by a person other than the person engaged in the perpetration of or in the attempt to perpetrate such felony, the person perpetrating or attempting to perpetrate such felony shall be guilty of murder in the second degree, which constitutes a felony of the first degree, punishable by imprisonment for a term of years not exceeding life or as provided in s. 775.082, s. 775.083, or s. 775.084. (Emphasis supplied.)

We think that this 1974 enactment made two significant changes in the scope of second degree felony-murder. First, the language “by a person other than the person engaged in the perpetration of or in the attempt to perpetrate” obviously limited the operation of the section to those situations where the person who actually kills the innocent victim is not one of the principals in the commission of the felony but rather someone else such as a bystander or law enforcement officer.

Second, the clause “the person perpetrating or attempting to perpetrate such felony shall be guilty of murder in the second degree” restricted liability for second degree felony-murder to those principals, aiders or abetters who are personally present at the commission of the felony. When the legislature wrote this clause it was no doubt aware of the State v. Dixon decision of the previous year in which the supreme court had, as we have noted above, so interpreted similar language in the first degree felony-murder statute.

In summary then, we hold that for a person to be guilty of second degree felony-murder, he must have been personally present at the commission of one of the enumerated violent felonies and the killing must have been committed by someone other than him or one of his cofelons. Thus appellant was also not guilty of second degree felony-murder because a cofelon shot the victim and because appellant was not personally present at the robbery.

Accordingly, we affirm appellant’s convictions and sentences for conspiracy and robbery, but we reverse her conviction for felony-murder.

OTT and DANAHY, JJ., concur.

      . § 777.011, Fla.Stat. (1975), provides:
      Whoever commits any criminal offense against the state, whether felony or misdemeanor, or aids, abets, counsels, hires, or otherwise procures such offense to be committed, and such offense is committed or is attempted to be committed, is a principal in the first degree and may be charged, convicted, and punished as such, whether he is or is not actually or constructively present at the commission of such offense.


text:
    Joe Edward GRANT, as Personal Representative of the Estate of Frances W. Grant, Deceased, Appellant, v. SEDCO CORPORATION, C. R. Parker, and Continental Insurance Company, Appellees.
    No. 78-231.
    District Court of Appeal of Florida, Second District.
    Nov. 1, 1978.
    Rehearing Denied Nov. 27, 1978.
    Kirk M. Gibbons and David B. McEwen of Gibbons, Tucker, McEwen, Smith, Cofer & Taub, Tampa, for appellant.
    Jacqueline R. Griffin of Wells, Gattis & Hallowes, Orlando, for appellees.
   OTT, Judge.

The following question has been certified to this court:

Can the so-called doctrine of “equitable adoption” be applied to authorize a claim under the Florida Wrongful Death Act on behalf of a minor who is neither the natural child nor the legally adopted child of a decedent?

We answer the question in the negative.

When Mikel Marks was approximately 3 days old, his natural mother entered into a contract with Frances Grant a/k/a Mattie Brooks whereby the natural mother agreed to surrender Mikel Marks to Frances Grant. Frances Grant failed to legally adopt Mikel Marks. In December, 1975 — when Mikel Marks was approximately 3% years old— Frances Grant was killed in an automobile accident. Her personal representative brought a wrongful death action, asserting a claim on behalf of Mikel Marks.

The Florida Wrongful Death Act — § 768.-18, Florida Statutes (1977) — is on point. That statute provides:

(1) “Survivors” means the decedent’s spouse, minor children, parents, and, when partly or wholly dependent on the decedent for support or services, any blood relatives and adoptive brothers and sisters. It includes the illegitimate child of a mother, but not the illegitimate child of the father unless the father has recognized a responsibility for the child’s support.
(2) “Minor children” means dependent unmarried children under 21 years of age . . ..
[Emphasis supplied.]

We hold that an equitably adopted child cannot recover under the Wrongful Death Act. In Limbaugh v. Woodall, 121 Ga.App. 638, 175 S.E.2d 135 (1970) the court was faced with a similar issue. The court held that under Georgia law which provided for the recovery by “a child or children” for the wrongful death of a parent, a child equitably adopted could not recover under the Georgia Wrongful Death Act. The court held:

[T]he terms “child” or “children” as used in our wrongful death statutes do not encompass one claiming to be like a child as to another acting in loco parentis, even when such relationship obtains under an agreement to “adopt” but the legal adoption has never transpired.

175 S.E.2d at 137. The Georgia court pointed out that there must be a strict construction of the Wrongful Death Act since that statute is in derogation of the common law. In addition, the court noted that the doctrine of equitable adoption had never been extended beyond decreeing in the child a right to inheritance or a right to receive as a beneficiary under some types of insurance policies.” 175 S.E.2d at 138.

Although the limitations upon recovery by an equitably adopted child might seem harsh, the Florida Wrongful Death Act does not compensate all those aggrieved by the death of another. It only compensates some and in certain ways. The nature of equitable adoption is a remedy in equity to enforce a contract right, not to create the relationship of parent and child. A minor child that is neither the natural child or legally adopted child of a decedent simply has no claim under the Florida Wrongful Death Act.

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


author: MILLS, Acting Chief Judge.

text:
    William T. O’QUINN, Appellant, v. STATE of Florida, Appellee.
    No. BB-41.
    District Court of Appeal of Florida, First District.
    Nov. 3, 1978.
    Rehearing Denied Dec. 15, 1978.
    David A. Demers, St. Petersburg, and Judith Benninger Brown, for appellant.
    Robert L. Shevin, Atty. Gen., Jeanne Daws Schwartz, Asst. Atty. Gen., for appel-lee.
   MILLS, Acting Chief Judge.

On 11 January 1974, O’Quinn was indicted by a grand jury for the premeditated murder of his wife. On 14 March 1974, O’Quinn withdrew his previously entered plea of not guilty, pled guilty to first degree murder, and was sentenced to life imprisonment. On 24 December 1975, O’Quinn filed his motion to vacate judgment and sentence and for leave to withdraw his plea of guilty. The trial judge, who had not presided at the change of plea proceedings, denied the motion without holding an evidentiary hearing and without benefit of the transcript of the change of plea proceedings. We vacated the trial court’s order denying the motion and remanded the case to the trial court for further proceedings as required by Fla.R. Crim.P. 3.850. After an evidentiary hearing and upon consideration of the record in the case, including the change of plea transcript, the trial court again denied O’Quinn’s motion.

O’Quinn contends that the judgment and sentence should be vacated because he was denied effective assistance of counsel and because his guilty plea was not entered knowingly and voluntarily.

O’Quinn had privately retained counsel. Florida courts have long held that one may not attack the competency of his privately retained counsel. Cappetta v. Wainwright, 203 So.2d 609 (Fla.1967); Belsky v. State, 231 So.2d 256 (Fla. 3d DCA 1970); State v. Pinto, 273 So.2d 408 (Fla. 3d DCA 1973).

The record and evidence taken at the hearing do not support O’Quinn’s contention that the guilty plea was not entered knowingly and voluntarily. O’Quinn had taken the drugs Librium and Darvon on the morning of the change of plea proceedings, however, he testified that he had been taking those drugs since 1971. His prescriptions called for ten milligrams (one capsule) of Librium three times a day and one capsule of Darvon-65 every four hours, as needed for pain. His doctor testified that a ten miligram dose of Librium would have no significant impact on the mental faculties of an individual even if they had an abnormal reaction to Librium and O’Quinn did not have an abnormal reaction to Librium. O’Quinn testified, however, that on the morning of the change of plea he was given a double dos.e of Librium and Darvon. The doctor was asked whether a double dose of those drugs would have any impact on a person who was in a depressed state. The doctor replied that if the individual was already depressed the Librium would increase the depression and that normally there would be no impact from the Darvon. The doctor further testified that if an individual took enough Librium and Darvon to impair his comprehension, he would probably show some signs of incoordination or drowsiness and some slurring of speech. O’Quinn did not exhibit these symptoms at the change of plea proceedings. Further, the change of plea transcript indicates that O’Quinn fully understood what his plea meant and its consequences.

At the evidentiary hearing O’Quinn testified that he pled guilty because his attorney led him to believe that if he did so he would receive a sentence of only nine to twelve months. However, on the negotiated plea form executed before the court by O’Quinn, the blank for recommended sentence was filled in with “life imprisonment”. The following exchange with the sentencing judge also indicates that O’Quinn clearly understood what his sentence would be:

“THE COURT: And has there been any promise made to you of any lesser punishment—
THE DEFENDANT: No, sir.
THE COURT: —if you pled?
THE DEFENDANT: No, sir. He just told me what could happen to me. I have read the articles or papers. I imagine that you are reading the same things. I have read those.
THE COURT: Do you realize that if—
THE DEFENDANT: Do at least 25 years?
THE COURT: Do you realize that you are facing a 25 — a life sentence?
THE DEFENDANT: Yes, sir.
THE COURT: 25 years?
THE DEFENDANT: Yes, sir.”

We further find that there is sufficient evidence to refute O’Quinn’s contention that he was not informed of certain possible defenses. O’Quinn’s attorney testified that he advised O’Quinn of the possibility of a provocation defense although, in his judgment, the provocation had occurred at times too remote to be used as a defense. At the change of plea proceedings the court asked O’Quinn’s attorney whether possible defenses had been discussed. O’Quinn’s attorney replied that they had, stating:

“. . .1 explained to him that under the law if we can prove total and complete intoxication, it would reduce the plea or the penalty for first degree to second degree. However, I have conferred with the doctors, and this man’s physical health, perhaps he would not live through a hard jury trial. It’s very taxing to the person, and in his physical condition, and I have asked him about it, and he confirmed and agrees with me that we should enter this plea today.”

O’Quinn contends that he was not adequately informed of all possible defenses because his attorney did not tell him that he could be acquitted due to his intoxication. While Florida law recognizes insanity super-induced by the use of intoxicants as a complete defense, voluntary intoxication is not a complete defense. Cirack v. State, 201 So.2d 706 (Fla.1967). Prior to the entry of the guilty plea, the court-appointed psychiatrist had opined that at the time of the offense O’Quinn . . was mentally competent, able to understand the nature, quality and wrongfulness of his acts.”

The order of the trial court is affirmed.

SMITH and ERVIN, JJ., concur.


author: ERVIN, Judge.

text:
    JESS PARRISH MEMORIAL HOSPITAL, Petitioner, v. FLORIDA PUBLIC EMPLOYEES RELATIONS COMMISSION and Laborers International Union of North America, Local No. 666, Respondents.
    No. GG-463.
    District Court of Appeal of Florida, First District.
    Nov. 6, 1978.
    Rehearing Denied Dec. 15, 1978.

      Joe D. Matheny of Henderson, Matheny & Jones, Titusville, W. Reynolds Allen and Donald H. Wilson, Jr. of Hogg, Allen, Ryce & Norton, Coral Gables, for petitioner.
    Phillip P. Quaschnick and William E. Powers, Jr., Tallahassee, Mark F. Kelly and Richard H. Frank, Tampa, for respondents.
   ERVIN, Judge.

Jess Parrish seeks review of a final order of the Public Employees Relations Commission (PERC) dated June 30, 1977. While the appeal was pending before this court, upon motion of PERC, we relinquished jurisdiction to it for 30 days for the entry of an amended order, which was issued December 12, 1977. The original order had adopted all the findings of the recommended order by the hearing officer. The amended order adopted all but one of the recommendations. The one finding was reversed, and PERC ordered the hospital to cease and desist from unlawfully interrogating employees concerning union sentiments and activities, threatening employees with loss of benefits or employment for exercising their rights under PERA, advising employees that they could not join an employee organization, preparing and distributing to its employees documents urging them to withdraw from union membership, and interfering with, restraining or coercing its employees in the exercise of their rights of self-organization. Finally the hospital was ordered to post a notice to employees of compliance with the order. Since the hospital has raised numerous points on review, the facts, as they relate to each point will be discussed infra.

The hospital first argues that the order of PERC is unenforceable since contrary to the requirements of Section 120.-59(l)(b), that final orders be rendered in writing within 90 days after a recommended order has been submitted to the agency and parties, PERC’s final order was not issued within such time and none of the parties waived the time period as permitted by Section 120.59; consequently, the order is invalid. This point is without merit: G. & B. of Jacksonville, Inc. v. Department of Business Regulation, 362 So.2d 951 (Fla. 1st DCA 1978), held that while the 90 day period in Section 120.59 is mandatory, the effect of its violation will depend upon whether the fairness of the proceedings or the correctness of the action taken was found to be impaired. The hospital makes no argument and the record does not show that there was unfairness or material error as a result of the delay.

Second, the hospital argues that PERC does not have the statutory authority to prosecute unfair labor practice cases. Under the statute as it existed at the time, Section 447.503, Florida Statutes (1975), was silent as to the grant of any specific authority to prosecute unfair labor practice charges following the investigation and filing of a complaint, although Fla.Admin. Code R. 8H-4.08 permits the general counsel of PERC to “assume part or all of the burden of presenting the evidence in support of the allegations in the complaint.” The hospital did not assert this as error before the DOAH hearing officer, although at the hearing before PERC, which was simply one in the nature of a review of the proceedings taken before the hearing officer, cf. Pasco County School Bd. v. PERC, 353 So.2d 108 (Fla. 1st DCA 1977), the hospital raised the issue for the first time. PERC concluded that the hospital was questioning the validity of Rule 8H-4.08, supra, and that, according to PERC’s Rule 8H-4.-12, F.A.C., the issue was waived when not brought to the attention of the hearing officer. We agree with PERC that the issue was waived and that it was not fundamental error which could be reviewed for the first time by PERC. See Pasco County School Bd. v. PERC, supra.

The hospital next argues that administrator Muse’s letter to all hospital employees was not violative of Section 447.-501(l)(a), Florida Statutes (1975), making it an unfair labor practice for public employers to interfere with, restrain or coerce public employees in the exercise of any of their rights guaranteed by PERA.

The testimony before the hearing examiner revealed that during the summer of 1974, Laborer’s International began an organizational drive among the hospital’s employees. Later, the union’s representative requested Muse to recognize the union as the employees’ collective bargaining agent and presented authorization cards to him which it represented were signed by a majority of the employees. Muse refused to recognize the union. Before a certification petition was filed by the employee organization with PERC, as authorized by Section 447.307(2), Muse, on January 27, 1975, sent the following letter to all employees:

TODAY Newspaper 1 — 27—75
“UNION TURNS SOUR”
“25 to 30 UNION MEMBERS TURN IN RESIGNATIONS”
PRESENT UNION MEMBER — “I’M FOR A UNION, BUT I’M AGAINST A SORRY UNION AND THAT’S THE WAY THIS ONE IS BEING RUN.”
As we have stated in other letters to you, your hospital has benefits equal to or better than any other hospital in our area. We have maintained this position for years and will continue to be a leader in the future.
To my knowledge no other hospital in the State of Florida pays their employees a cash bonus for unused sick leave or has a more up-to-date health insurance plan than ours.
I don’t know who has signed authorization cards but recently a number of you have requested how you might go about revoking the union card that perhaps you signed due to a lack of understanding from organizers of the Laborers International Union, Local 666. Enclosed in this letter is a card addressed to the PERC Commission in Tallahassee requesting withdrawal of your name. Please be assured no pressure will be brought by this office requesting that you do this.
With Union’s, its — MONEY IS THE NAME OF THE GAME. It is a well known fact, because of the slow down in the construction trade, the Unions are looking elsewhere for $$$ — your $$$. Ask Mr. Tyler what percentage of your monthly dues would stay in Brevard County or does it head south to the union leaders in Miami?

PERC found that while Muse could not name any of the individuals who had questioned him about withdrawing their authorization cards, the evidence supported a finding that some did in fact make such request. It also observed that Muse’s letter was sent to all employees and that Muse testified his intention was for all employees to revoke their authorization cards. It noted that while Section 447.501(3) protects employers in expressing their opinions, nevertheless an employer may not by its conduct interfere with employees in the exercise of their organizational rights. Section 447.501(l)(a). It continued that the answer to whether employer action in soliciting withdrawal of previously executed authorization cards is an unfair labor practice depends upon “whether the employer directly or indirectly causes, encourages or facilitates . . . such action.” PERC adopted the NLRB test for illegal interference in the context of a decertification drive, under which a union must show (1) that the employer encouraged, condoned or ratified the preparation and circulation of a decertification petition and (2) that the employer actively supported, encouraged and cooperated in soliciting the decertification signatures. See Washtenaw County Commissioners, 1972 MERC Lab.Op. 794.

PERC relied primarily upon The Deutseh Company, 165 NLRB 140 (1969), to support its finding that an unfair labor practice occurred. There the employer sent letters to all employees, without any of the employees’ prior requests for assistance, advising them how to go about revoking their authorization cards. The Board’s finding was affirmed in NLRB v. Deutsch Company Metal Components Division, 445 F.2d 902, 906 (9th Cir. 1971), in which the court stated: “The Board’s finding ... is completely consistent with the established rule that an employer cannot engage in conduct calculated to erode the employee’s support for the union. . . . The thrust of the company’s mailing was to undermine employee support for the union.” We believe the facts in Deutsch Company are distinguishable from those here and that PERC employed too strict a test which severely limited the employer’s pre-election comments permitted by Section 447.501(3).

NLRB v. Gissel Packing Company, 395 U.S. 575, 89 S.Ct. 1918, 23 L.Ed.2d 547 (1969), sets out standards by which an employer’s pre-election speech is to be evaluated in unfair labor practice disputes:

[A]n employer is free to communicate to his employees any of his general views about unionism or any of his specific views about a particular union, so long as the communications do not contain a “threat of reprisal or force or promise of benefit.” He may even make a prediction as to the precise effects he believes unionization will have on his company. In such a case, however, the prediction must be carefully phrased on the basis of objective fact to convey an employer’s belief as to demonstrably probable consequences beyond his control or to convey a management decision already arrived at to close the plant in case of unionization. . If there is any implication that an employer may or may not take action solely on his own initiative for reasons unrelated to economic necessities and known only to him, the statement is no longer a reasonable prediction based on available facts but a threat of retaliation based on misrepresentation and coercion, and as such without the protection of the First Amendment. 395 U.S. at 618, 89 S.Ct. at 1942 (e.s.)

In Gissel, the Supreme Court upheld a finding that literature distributed by the employer in an election drive was threatening and violative of the NLRA. The NLRB had found the employer’s- statements, letters and campaign literature conveyed a message that the company was faring badly financially and would close in the face of any strikes resulting from unreasonable union demands. The Court stated the

Board could easily conclude that the intended and understood import of that message was not to predict that unionization would inevitably cause the plant to close but to threaten to throw employees out of work regardless of the economic realities. 395 U.S. at 619, 89 S.Ct. at 1943.

We conclude that the letter sent by administrator Muse was not couched in language violative of the Gissel standards. There was certainly no threat of reprisal or force or promise of benefit if the employees refused to comply with the administrator’s assistance in withdrawing their authorization cards. In fact the letter specifically advised them that “no pressure would be brought by this office requesting that you do this.” It is clear that the contents of the letter alone were not violative of Section 447.501(l)(a). Compare Laborer’s Dist. Council of Georgia v. NLRB, 163 U.S.App.D.C. 308, 501 F.2d 868 (1974).

The next question is whether the employer’s action in sending deauthorization cards, stamped and addressed to PERC, under the circumstances, was an unfair labor practice. The Deutsch Company case, while holding that comments in the employer’s letter were not prohibited by the NLRA, concluded that the gratuitous, unsolicited offer of assistance by the employer to all employees was an unfair labor practice. The facts here are different in that PERC found some of the employees had made such a request. The circumstances before us are analogous to those in Holly Farms Poultry Industries, Inc., 194 NLRB 952 (1972). There, during an authorization drive, and before the union had asked the employer for recognition, the employer sent a letter explaining the procedure of deauthorization and forwarded with it revocation cards to all employees after receiving inquiries from some employees about revocation. The letter, as the letter here, advised the employees that the choice whether to revoke the cards was strictly their own. The NLRB stated that the letter clearly conveyed to the employees that the choice to withdraw their cards was subject to their own volition; therefore the letter was held non-coercive. Two later opinions of the NLRB held no unfair labor practice occurred when the employees initiated the request to withdraw their authorization cards and the employer assisted in the mechanics of revocation. E. g., Aircraft Hydro-Farming, Inc., 221 NLRB 581 (1975); Jimmy-Richard Company, Inc., 210 NLRB 802 (1974).

Whether Section 447.501(l)(a) is violated by communications from an employer to his employees relating to union membership depends upon the particular circumstances of each case. Both the employer and the employee organization have a constitutional right to freedom of expression in making pre-election comments so long as the comments do not violate the Gissel standards, enacted in Section 447.501(3), which forbids promise of benefits or threat of reprisal or force. If the employer, however, sends letters containing anti-union statements which cumulatively create “an atmosphere in which an employee’s free choice is rendered impossible . . .”, Gilbert International, Inc., 213 NLRB 538 (1974), then the expressions become overbearing and lose First Amendment protections.

Whether an employer commits an unfair labor practice by involving himself in employee revocation of union authorization cards depends upon the degree of employer participation in the process. The determinative factor is whether the idea of revocation is initiated by the employees, or whether the idea originates with the employer. Under the circumstances, we conclude that PERC’s finding that administrator Muse committed an unfair labor practice in mailing the letter and deauthorization cards to the employees is not supported by the evidence, and the finding is reversed.

Next the hospital argues that statements attributed to two of its employees and made by them to other employees were not imputable to it since (1), the employees were not its agents, and (2), even if they were, the statements were not authorized by the hospital since it had specifically disclaimed them. PERC’s amended order held that the parties’ stipulation which stated that employees Shreve and Bullington were officers, agents, representatives and-or supervisors and-or managerial employees who acted on behalf of the hospital could not support a finding that the two employees were managerial employees since such designation could not be stipulated to under Section 447.203(3)(d). PERC found however there was nothing in PERA prohibiting the parties from stipulating that Bull-ington and Shreve were the hospital’s agents. The hospital argues that since Bullington and Shreve were not found to be managerial employees, they were part of the bargaining unit and free to express their views to the employees under them. The hospital relies upon one of PERC’s cases, City of Port St. Joe, 3 FPER 179 (1977), where it was held interrogation by a supervisor was not violative of the act because the bargaining unit determination had placed the supervisor within the employees’ specific unit. However, that case, as PERC persuasively argues, is not applicable since here no bargaining unit determination had been made when the unfair labor practice complaint was filed. Under the NLRA, an individual can be an agent of the employer without being a supervisor, and acts of the employer’s agents, though not specifically ratified by the employer, are chargeable to it for purposes of finding unfair labor practices. See NLRB v. Broyhill Co., 514 F.2d 655, 657 at n. 5 (8th Cir. 1975).

The hospital’s argument that it disclaimed any agency relationship by sending all supervisory employees a list of items to avoid during the union’s authorization drive is without merit. The evidence supports PERC’s finding that administrator Muse was aware that the employees were worried that reprisals might follow if they signed the authorization cards, but that despite his knowledge, he took no positive steps to allay their fears. Thus the employer’s disclaimer may not overcome a conclusion that an employee is acting on behalf of the employer when the employer allows the employee continuously to interview employees and to make threatening statements to them. NLRB v. Solo Cup Co., 237 F.2d 521, 524 (8th Cir. 1956); cf. NLRB v. Mississippi Products, Inc., 213 F.2d 670, 673 (5th Cir. 1954).

The hospital’s argument that certain of Bullington’s statements, found by PERC to be coercive, were only warnings to her supervisory employees and not intended to influence impermissibly those employees is without merit. Our review of the record convinces us that PERC’s findings were supported by competent substantial evidence that the statements as made threatened loss of benefits to the employee if the union were elected.

The hospital’s argument that PERC should not have been allowed to amend its final order after the petition for review was filed is also without foundation. This court temporarily relinquished jurisdiction to PERC to amend its order upon PERC’s motion; therefore, the cases the hospital relies upon, State v. Seaboard Airline Railway Co., 93 Fla. 104, 111 So. 391 (1927); Peoples Gas System, Inc. v. Mason, 187 So.2d 335 (Fla.1966), are inapplicable.

The hospital next argues that appellate attorney’s fees and costs should be assessed against PERC for fees and costs incurred by the hospital in prosecuting the appeal from the original order issued by PERC and later amended on remand, which displaced one of the hearing officer’s recommendations. The hospital contends it tried to point out the errors in the recommended order to PERC long before this court remanded PERC’s original order for correction.

Section 447.504(4) provides that the district courts of appeal may award appellate attorney’s fees and costs to “the prevailing party” after judicial review. PERC answers that it is a quasi-judicial, adjudicatory body, and not a party within the meaning of that section, and if it were held to be a party, it would be subject to attorney’s fees and costs in every case in which it rendered an order; further, its judgment would be affected by that knowledge.

We reject PERC’s argument that attorney’s fees and costs may be assessed only against the non-prevailing party to the proceeding. Section 447.504(4) does not impose the sanction of fees and costs only against the non-prevailing party. PERC, as any other agency, may be answerable for such awards. Section 120.57(l)(b)(9) permits an appellate court, in the event of reversal of an agency order, in its discretion to award fees and costs to the “aggrieved prevailing party.” The hospital, however, is hardly the prevailing party, as contemplated by the statute, since only one finding of the hearing examiner was set aside by PERC after the agency had requested remand, as well as two additional findings by us in this opinion. The remaining findings stand undisturbed. The hospital is therefore not entitled fees and costs since it is clearly not the prevailing party.

Having so concluded, however, we think it appropriate to comment upon some general principles which may be of aid to a determination, once an agency order is reversed, whether to impose fees and costs against an agency when it is acting within the scope of its adjudicatory responsibilities. While § 120.57(l)(b)(9) does not at present impose any requirement of bad faith or maliciousness as a condition to an award, we would be reluctant to impose fees and costs against an agency if, for example, its order was reversed only because it had erroneously . interpreted a provision of law or the agency’s action depended upon a finding of fact which was not supported by competent, substantial evidence in the record. We feel, as to those circumstances, there are appropriate sanctions set forth in 120.68, including setting aside or modifying the agency action or remanding the agency action without imposing the additional sanctions of fees and costs against the agency. We note that the 1974 APA accords to the agency latitude in both discretion and policy. See § 120.68(7), (12)(b) and (c). We have previously recognized the special responsibility an agency has in refining its policy to adjudication in individual cases. McDonald v. Dept. of Banking and Finance, 346 So.2d 569 (Fla. 1st DCA 1977). An agency order which did not describe its “policy within the agency’s delegated discretion sufficiently for judicial review,” § 120.68(7), would probably require only remand to the agency for further explication. As we stated in McDonald, the failure of an agency to expose its reasons for discretionary action will result in the relief authorized by § 120.68(13), such as an order setting aside agency action, or remanding the case for further proceedings, or, finally, deciding the case itself. It would be difficult to conceive an instance where mere remand to an agency might also occasion the imposition of fees and costs.

Dalehite v. United States, 346 U.S. 15, 73 S.Ct. 956, 97 L.Ed. 1427 (1953), is helpful in setting forth certain broad guidelines in answer to the question whether an agency has acted appropriately within the perimeters of the discretion delegated to it. Da-lehite is, of course, distinguishable from the present case since it interpreted the discretionary function exception to the statute waiving immunity to the government in federal tort claims. See 28 U.S.C. § 2680. The statute excepts any claim “based upon the exercise or performance or the failure to exercise or perform a discretionary function or duty on the part of a federal agency or an employee of the Government, whether or not the discretion involved be abused.” The court interpreted the exception as follows:

The “discretion” protected by the section is not that of the judge — a power to decide within the limits of positive rules of law subject to judicial review. It is the discretion of the executive or the administrator to act according to one’s judgment of the best course, a concept of substantial historical ancestry in American law. 346 U.S. at 34, 73 S.Ct. at 967. (e.s.)

The court continued:

[The discretionary functions] also include determinations made by executives or administrators in establishing plans, specifications or schedules of operations. Where there is room for policy judgment and decision, there is discretion. It necessarily follows that acts of subordinates in carrying out the operations of government in accordance with official directions cannot be actionable. 346 U.S. at 35-36, 73 S.Ct. at 968.

If, on the other hand, agency decisions do not involve policy judgments in the policy interest, such decisions have not been held immune from judicial review. Eastern Air Lines v. Union Trust Co., 95 U.S.App.D.C. 189, 221 F.2d 62 (1955); aff’d 350 U.S. 907, 76 S.Ct. 192, 100 L.Ed. 796 (1955); Hendry v. United States, 418 F.2d 774 (2d Cir. 1969); Griffin v. United States, 500 F.2d 1059 (3d Cir. 1974). In the latter case, the distinction between an agency’s activities which immunize it from tort claims and those which do not was stated as follows:

Although Congress has provided that activity within the authority of a Government official, if a “discretionary function,” may not be the basis of Government liability even if negligent or an abuse of discretion, Congress has not immunized such activity if it exceeds the authority conferred. Liability, in such cases, is predicated not on a negligent or unwise policy determination, but on the failure of Government employees to conform to and act consistently with the authority delegated. We do not hold that the Government may be liable for policy determinations made by its officials. Rather, we hold only that the Government may be liable where its employees, in carrying out their duties, fail to conform to pre-existing statutory and regulatory requirements. Griffin v. United States, supra, at 1069.

The above standards have been implicitly followed by us. We have assessed attorney’s fees and costs pursuant to § 120.-57(l)(b)(9), Fla.Stat. (1977), against agencies which flagrantly violated the requirements of Chapter 120 by denying § 120.57 hearings and refusing to promulgate procedural rules as mandated by § 120.53. Capeletti Brothers, Inc. v. DOT, No. KK-105 (Fla. 1st DCA, August 9, 1978); Graham Contracting, Inc. v. Dept. of General Services, 363 So.2d 810 (Fla. 1st DCA 1978).

Reasoning from Dalehite, Griffin, Capeletti and Graham Contracting, Inc., we conclude that an agency’s actions may more often be subject to the harsher sanctions of fees and costs if either the fairness of the proceedings or the correctness of the action was impaired by material error in procedure or by a failure to follow prescribed procedure. Section 120.68(8). Stated in another way, an agency which does not “conform to and act consistently with the authority delegated” to it, Griffin v. United States, supra, at 1069, may be answerable to a prevailing party in costs and fees. The above principles are of course not all inclusive. As we observed in Carlton v. State Div. of Occupations, etc., 354 So.2d 77, 79 (Fla. 1st DCA 1978): “It is impossible to state with precision a general rule locating the outer perimeters of appropriate agency discretion. This may only be done on a case-by-case basis.”

PERC’s order as amended is affirmed in part and reversed in part. Its petition for enforcement, as modified, is granted.

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

      . Section 447.503 was amended by Ch. 77-343, Laws of Florida, and now authorizes PERC to issue a complaint and cause it to be served upon the person charged with the unfair labor practice.

      . Two supervisory employees warned other employees that if the union were elected certain employee benefits would be lost and salaries decreased.

      . The criteria to be considered by PERC under the statute defining managerial employee generally includes whether the employee formulates policy, assists in collective bargaining negotiations, and has a significant role in personal administration. PERC is mandated by the statute to “consider the historical relationship of the employee to the public employer. . . ”

      . Formerly, the statute, § 120.57(l)(b)(10), Fla. Stat. (Supp. 1974), permitted the reviewing court, in the event an agency’s final order was reversed, to assess fees and costs if the agency action was “done in bad faith or maliciously.”


author: BOYER, Judge. McCORD, Chief Judge,

text:
    Francis C. BACKUS and Marjorie Backus, his wife, Appellants, v. Harold W. SMITH and Minnette C. Smith, his wife, and La Playa Association, Inc., a Florida Corporation, Appellees.
    No. II-232.
    District Court of Appeal of Florida, First District.
    Nov. 6, 1978.
    Rehearing Denied Dec. 19, 1978.

      Harry B. Mahon of Mahon, Farley & Vickers, Jacksonville, for appellants.
    Kenneth G. Anderson of Culverhouse, Tomlinson, Mills, Anderson & Cone, Michael F. Dawes of Commander & Legler, Jacksonville, for appellees.
   BOYER, Judge.

Mr. and Mrs. Backus, appellants, entered into a contract whereby they agreed to purchase from appellees Smith, and the Smiths agreed to sell to the Backus’, a condominium unit at La Playa, putting up a $3,000.00 earnest money deposit to be held by a realtor. All of the owners of condominium apartments in the La Playa complex are members of appellee La Playa Association, Inc. Under the Declaration of Condominium of the La Playa Association the Association has the right of first refusal upon any condominium owner desiring to sell. After the Smiths had entered into the contract with the Backus’ notice was given to the Association. In due course a meeting was held at which all of the members, including Smith, voted to exercise the right of first refusal. The Association failed to follow many of the procedural requirements of the Declaration of Condominium and of the Association By-Laws. The Smiths informed the Backus’ that because of the action of the Association they (the Smiths) would not sell to the Backus’ in accordance with the Contract. The realtor returned the earnest money deposit to the Backus’ who accepted and deposited it in their bank account. The Backus’ then filed a two count complaint against the Smiths and the Association. By count I they sought specific performance by the Smiths and in count II damages against the Association for tor-tious interference with a contract. The Smiths answered and filed a counterclaim seeking damages on the grounds that the law suit by the Backus’ prevented a sale to a substitute purchaser. They also sought attorney’s fees under the contract. Following pleading and discovery the trial judge entered a summary judgment in favor of the defendants, which is the judgment here appealed. Thereafter the court entered an order denying damages to the Smiths on their counterclaim and denying attorney’s fees to the Association who claimed entitlement under a provision of the contract between the Smiths and the Backus’. However, the Smiths were allowed attorney’s fees in the sum of $5,000.00.

We affirm the summary judgment in favor of appellee La Playa Association, Inc., finding that the record is devoid of any evidence of malice and that the Backus’, not being members of the Association, have no standing in the action sought to be asserted by the Backus’ against the Association to collaterally attack the failure of the Association to abide by the procedural requirements of the Declaration of Condominium and its By-Laws.

We also affirm a denial by the trial court of attorney’s fees for the Association attorneys and deny the motion filed by the Association for attorney’s fees incident to this appeal.

However, the claim against the Smiths is quite another matter. The basis of the Smiths’ refusal to convey pursuant to the terms of the contract was that they could not obtain permission from the Association to make such conveyance and that the Association had exercised its right of first refusal. Under those circumstances, as between the Backus’ and Smiths, Backus’ has standing to challenge the propriety of the actions of the Association upon which the Smiths rely on to raise the numerous procedural deficiencies which are revealed by the record. On summary judgment, it is also material to the claim for specific performance that the record is subject to the construction that the Backus’ have offered to accept from the Smiths such title as the Smiths are able to convey.

The final point relates to the effect of the acceptance by the Backus’ of a return of the earnest money deposit after the Smiths had informed them that they (the Smiths) would not abide by the contract. Generally, the acceptance of a return of a deposit terminates all obligations under the contract. However, sub judice, the Backus’ contend that another rule should apply since their acceptance of the return of the deposit by the realtor was after the Smiths had already breached the contract by refusing to sell the condominium to the Backus’ under the terms of the contract. Intriguing though we find that contention to be, we find no occasion here to resolve it because of the peculiar wording of the contract entered into between the parties. It is axiomatic that the courts are required to apply the terms of a valid contract entered into by competent parties, particularly when no attack upon the contract itself has been made. The contract here involved, which we note bears the notation at the bottom: “Copyrighted by the Jacksonville Board of Realtors Jacksonville, Fla. 1975” contains the following provision (numbered paragraph 10) relating to default by the seller:

“DEFAULT BY SELLER. If the SELLER fails to perform any of. the covenants of this Agreement, the aforesaid money paid by the BUYER, at the option of the BUYER, shall be returned to the BUYER on demand; the BUYER may bring suit against SELLER for damages resulting from the breach; and the BUYER shall have the right of specific performance.”

It is clear that the remedies so provided are not in the disjunctive. Upon default by the seller the buyer may, the contract says, have a return of the “money paid by the Buyer” and “the Buyer shall have the right of specific performance.”

Whether or not, upon remand, the Backus’ will be able to prove their case, or whether the Smiths will be able to perform and if not what remedies may be then available to the Backus’ are not issues now before us, therefore we do not speculate thereon.

The summary judgment here appealed is

REVERSED.

MILLS, J., concurs.

McCORD, C. J., dissents.

McCORD, Chief Judge,

dissenting.

I would affirm the summary judgment and, therefore, dissent.


author: SMITH, Acting Chief Judge.

text:
    In the Interest of C. M. M., a child. Jean D. Marion HARMON, Appellant, v. DEPARTMENT OF HEALTH AND REHABILITATIVE SERVICES, Appellee.
    No. JJ-62.
    District Court of Appeal of Florida, First District.
    Nov. 6, 1978.
    Rehearing Denied Dec. 19, 1978.

      Ronald A. Nour, Daytona Beach, for appellant.
    Robert L. Shevin, Atty. Gen. and Horace Schow, II, Asst. Atty. Gen., Tallahassee, for appellee.
   SMITH, Acting Chief Judge.

Appeal from an order adjudging C.M.M. a dependent child under Chapter 39, Florida Statutes (1977). The circuit court’s order commits the child to the custody of the Department of Health and Rehabilitative Services pending placement for adoption, and permanently severs the parental rights of the natural parents. Jean D. Marion Harmon, the child’s natural mother and appellant here, contested the dependency adjudication. The natural father initially opposed the adjudication but later withdrew his opposition and is not a party to this appeal.

The record on appeal does not contain transcripts of the hearings leading to the dependency order. The record contains an affidavit of a deputy clerk of the circuit court reciting that the hearings were recorded and the recordings filed, but the recordings have since been lost or erased. In a second affidavit, an assistant state attorney affirms that the proceedings were recorded and further states that he and appellant’s attorney “have attempted a reconstruction of the record, but have been unable to so do.”

Mrs. Harmon urges that we must reverse the adjudication of dependency and remand for a new trial because she cannot present the “substance” of any of the proceedings below for our review without a verbatim transcript. We do not agree. An appellate court cannot consider a case unless the record reveals all evidence and proceedings before the trial court which are material to the resolution of points on appeal. White v. White, 306 So.2d 608 (Fla. 1st DCA 1975). And a new trial may be necessary where essential records are destroyed through no fault of the appellant, and counsel are unable to accurately reconstruct the proceedings and evidence. Van Scoyoc v. York, 173 So.2d 483 (Fla. 2d DCA 1965), cert. denied, 179 So.2d 214 (Fla.1965). But it is necessary that appellant raise a question on appeal which we cannot resolve without resort to the missing portion of the record.

Mrs. Harmon raises no issue requiring resort to a transcript of the proceedings. Mrs. Harmon complains only that in the final order the trial judge improperly attempts to prohibit her from petitioning to adopt her child after the dependency adjudication. She states that the trial court affirmatively held that she could petition to adopt her child in the first dependency order; but the court later amended the order to delete that statement. This, she urges, is an attempt to prohibit her from petitioning for adoption. We need not refer to a transcript of the proceedings to determine that there is no error. The amended order does not purport to affect Mrs. Harmon’s rights to petition for adoption in a subsequent proceeding and does not affect whatever rights she may have. Thompson v. Dept. of Health and Rehabilitative Services, 353 So.2d 197 (Fla. 3d DCA 1977).

The record before us contains substantial competent evidence that the dependency adjudication meets the requirements of Section 39.11, Florida Statutes (1977). The order appealed from is AFFIRMED.

ERVIN and BOOTH, JJ., concur.

      . Rule 9.200(b)(3), Fla.R.App.P., which took effect after notice of appeal was filed in this case, provides that appellant “may prepare a statement of the evidence or proceedings from the best available means, including his recollection.” The statement is submitted to the trial judge with objections and amendments from appellee to be “settled and approved” and included in the record on appeal.