author: MILLS, Judge.

text:
    STAN MUSIAL & BIGGIE’S, INC., Petitioner, v. STATE of Florida, DEPARTMENT OF REVENUE, Respondent.
    No. II-391.
    District Court of Appeal of Florida, First District.
    Sept. 25, 1978.
    Rehearing Denied Nov. 8, 1978.

      Julius F. Parker, Jr., and Susan Potter Whisenand, of Madigan, Parker, Gatlin, Swedmark & Skelding, Tallahassee, for petitioner.
    Robert L. Shevin, Atty. Gen., Patricia S. Turner, Asst. Atty. Gen., John D. Moriarty, Tallahassee, for respondent.
   MILLS, Judge.

Stan Musial & Biggies, Inc. (SM & B) seeks review of a final order of the Department of Revenue (Department) upholding a deficiency assessment of corporate income taxes alleged to be due the State from SM & B for the calendar year 1972.

SM & B contends that the apportionment formula set forth in Section 214.17, Florida Statutes (1971), and applied by the Department in arriving at the deficiency assessment was not applicable to it because it was not a unitary business.

SM & B was a foreign corporation subject to the Florida Corporate Income Tax imposed by Chapter 220, Florida Statutes (1971), for the calendar year 1972.

In 1964, SM & B acquired a one-third interest in the Bal Harbour Joint Venture which owned and operated the Ivanhoe Hotel and Restaurant in Bal Harbour, Florida. By 1967, SM & B’s interest in the hotel and restaurant had increased to 95 percent, and by 15 December 1972, had increased to 100 percent.

On 31 December 1972, SM & B was the sole owner of the Ivanhoe Hotel and Restaurant.

On 16 November 1972, SM & B acquired, by merger, a 100 percent interest in the Clearwater Beach Hilton, a motel and restaurant business located in Clearwater, Florida, and on 31 December 1972, continued to own 100 percent of the Clearwater Beach Hilton.

On 2 November 1972, SM & B sold certain securities which resulted in a realized gain to it for federal income tax purposes of $941,418.00. Eighty-five percent of the securities that were sold on 2 November 1972 and are the subject of the Department’s assessment, were purchased before 1 August 1964 or received as stock dividends from stock purchased prior to that date. All purchases were made with money earned from its Missouri restaurant. SM & B did not have any interest in any Florida business when this stock was purchased. At all times the securities remained in Missouri and all dividends were received in Missouri. The securities were sold in Missouri. At the time of the sale, SM & B had no interest in the Clearwater Hilton, it merely held an interest in the partnership which owned the Ivanhoe Hotel and Restaurant.

SM & B timely filed its Florida Corporation Income Tax Return for 1972 on which it subtracted from its federal taxable income the gain from the sale of the securities and thus reported its “Florida Net Income” and its “Total Tax Due” as “None”.

On or about 8 May 1974, the Department advised SM & B of a proposed deficiency in SM & B’s 1972 Florida Corporation Income Tax in the amount of $29,392.00.

On or about 7 June 1974, SM & B timely filed with the Department its protest of the proposed deficiency assessment in accordance with the provisions of Section 214.71, Florida Statutes (1971).

On or about 13 August 1974, after a hearing held by the Department in accordance with the provisions of Section 214.71, the Department issued to SM & B its Notice of Decision in which the proposed deficiency was reduced to $25,712.80.

On or about 8 October 1974, SM & B filed with the Department its written request for reconsideration of the Department’s Notice of Decision. The parties stipulated that further proceedings in this cause would be processed under the Florida Administrative Procedure Act.

The Ivanhoe and Clearwater Beach Hilton Hotel and Restaurant businesses in Florida and SM & B’s restaurant business in Missouri had separate, individual general managers.

One SM & B vice president was in charge of the two Florida businesses, and another vice president was in charge of the Missouri business. The actions of the two vice presidents were subject to review concerning policy matters by SM & B’s board of directors, whose chairman was Stan Musial.' The Florida businesses furnished information and reports concerning business activities to SM & B’s main office on a semiweekly basis. There was no central purchasing by the hotels. There were no central reservation services available between the hotels, and the hotels advertised separately and unilaterally in local publications in the cities in which they were located. No standardized product lines existed.

After a hearing, the hearing officer recommended that the deficiency assessment be vacated and that Musial be permitted to file an amended 1972 return using a method of apportionment approved by the Department which would effectuate an equitable apportionment of Musial’s income in Florida. The Department rejected the hearing officer’s recommendations. It upheld the deficiency assessment because in its judgment the three factor formula specified in Section 214.71 fairly apportioned Musial’s tax base.

The Florida Corporate Income Tax Code imposes upon corporations an excise or privilege tax measured by net income. Section 220.11(2). A taxpayer’s net income is defined to be that share of its adjusted federal income which is apportioned to Florida under the provisions of Section 220.-15, less the annual exemption allowed by Section 220.14. Section 220.12(1). Section 220.15 provides that adjusted federal income shall be apportioned to the State in accordance with Part IV of Ch. 214, as the apportionment fraction described in Section 214.71 is modified in Section 220.15(4).

Part IV of Chapter 214 sets forth the methods of determining the extent of the taxpayer’s tax base attributable to Florida. Section 214.71, as modified by Section 220.-15, sets forth the general method of apportionment except as otherwise provided in Sections 214.72 and 214.73, and includes a three-factor formula.

The three factors are (1) property, (2) payroll, and (3) sales. Each of these factors is determined by dividing the property (payroll or sales) of the taxpayer owned, located or used in Florida by the taxpayer’s property (payroll or sales) owned, located or used elsewhere. Property and payroll factors are then multiplied by 25 percent, the sales factor is multiplied by 50 percent, and the sum of the three is the apportionment factor. The apportionment factor is, in turn, multiplied by the taxpayer’s adjusted federal income to yield the taxpayer’s tax base, or net income for the taxable year. The amount of tax liability is 5 percent of the net income for the taxable year less the $5,000 exemption provided by Section 220.-14.

Fla.Admin.Code Rule 12C — 1.15(4), which implements Section 214.71, provides in pertinent part:

“(4) General Method
(a) Taxpayers who have income from sources within and without Florida are taxable upon the adjusted federal income apportioned to Florida in accordance with Part IV of Chapter 214, F.S.
Where the Florida activities are a part of a unitary business carried on within and without Florida, the portion of the taxpayer’s income subject to tax in Florida will generally be determined by a three-factor formula of property, payroll and sales.
The activities of the taxpayer will generally be considered a unitary business if the segments under consideration are integrated with, dependent upon, or contribute to each other and the operations of the taxpayer as a whole, although the facts of each case will be the major determinant. A strong presumption of a unitary business is created by the presence of any of the following factors:
1. Same type of business.
2. Steps in a vertical process. .
3. Strong centralized management.

Section 214.72 provides for the method of apportionment for certain special industries. Section 214.73 provides for other methods of apportionment as follows:

“If the apportionment methods of sections 214.71 and 214.72 do not fairly represent the extent of a taxpayer’s tax base attributable to this state, the taxpayer may petition for, or the department may require, in respect to all or any part of the taxpayer’s tax base, if reasonable:
(1) Separate accounting;
(2) The exclusion of any one or more factors;
(3) The inclusion of one or more additional factors which will fairly represent the taxpayer’s tax base attributable to this state; or
(4) The employment of any other method which will produce an equitable apportionment.”

In implementation of Section 214.73 the Department promulgated Fla.Admin.Code Rule 120-1.15(6), which provides in pertinent part:

“Section 214.73 permits a departure from the apportionment methods of Sections 214.71 and 214.72, only in limited and specific cases. Section 214.73 may be invoked only in specific cases where unusual fact situations (which ordinarily will be unique and nonrecurring) produce incongruous results under the apportionment provisions contained in Sections 214.71 and 214.72.”

We agree with SM & B that it was not a unitary business in 1972. Under the facts of this case, the Missouri and Florida segments of SM & B were not integrated with, dependent upon or contributing to each other.

The Missouri segment operated a restaurant. The Florida segment operated two hotels with restaurants but the major activity was the hotel operation. Each segment was engaged in a different line of business.

Each segment did its own advertising, purchasing, bookkeeping and had its own managers. There was a lack of strong centralized management.

We do not agree with SM & B that because it was not a unitary business it was not subject to the three factor apportionment formula provided by Sections 214.-71 and 220.15(4). The three factor apportionment formula is required unless the taxpayer demonstrates a unique and nonrecurring situation making utilization of the formula unfair. SM & B has proved such a unique and nonrecurring situation here.

The hearing officer properly applied the applicable law to the facts of this case in her recommended order. Section 214.73 and Fla.Admin.Code Rule 12C-1.15(6) govern the disposition of this case.

The capital gain realized by SM & B from the sale of its securities is totally unconnected with its Florida businesses. The gains in the amount of $941,418.00 were the result of an isolated situation in which securities were purchased, held and sold in Missouri and constitute an element of income far removed from any contacts with the State of Florida. To totally and without modification include such gain would not fairly represent the extent of SM & B’s tax base attributable to Florida. To apply to SM & B the general method of apportionment set forth in Sections 214.71 and 220.-15(4) would produce an inequitable, unreasonable and unfair result.

We grant the petition for review, reverse the final order of the Department of Revenue and remand this case to the Department with instructions to utilize Section 214.73 in recomputing SM & B’s 1972 Florida Corporation Income Tax so that a formula is used which will equitably apportion SM & B’s income to the State of Florida.

McCORD, C. J., and ERVIN, J., concur.


source: Caselaw Access Project

author: BOOTH, Judge.

license: Public Domain

text:
    C. Q. FARMS, INC., a Florida Corporation, Appellant, v. CARGILL INCORPORATED, a Delaware Corporation, Appellee.
    No. FF-370.
    District Court of Appeal of Florida, First District.
    Oct. 3, 1978.
    Rehearing Denied Nov. 8, 1978.

      George L. Hudspeth and Dana G. Bradford, II of Mahoney, Hadlow & Adams, Jacksonville, for appellant.
    James E. Cobb and Raymond Ehrlich of Mathews, Osborne, Ehrlich, McNatt, Gobel-man & Cobb, Jacksonville, for appellee.
   BOOTH, Judge.

This cause is before us on appeal from the final judgment of the Circuit Court, Nassau County, entered on directed verdicts in favor of appellee Cargill on all claims and counterclaims.

Cargill, Inc., brought suit against C.Q. Farms for an account due and owing for goods sold and delivered and balance due in poultry financing transactions. Cargill’s complaint also sought foreclosure of a security agreement in the nature of a lien on C.Q.’s accounts receivable.

C.Q. Farms answered, asserting by way of affirmative defenses that Cargill had breached the agreement between the parties concerning a line of credit of $250,000 to be extended by Cargill in consideration for the lien on C.Q.’s accounts receivables, which breach resulted in damages to C.Q.’s business. C.Q. also counterclaimed (1) for rescission and cancellation of the recorded security agreement and (2) for business damages resulting from failure of Cargill to extend the promised line of credit. C.Q. Farms alleged that it “was induced to execute the aforesaid agreement (lien on accounts receivable) based on the promise of plaintiff to furnish a line of credit of $250,000 for the purchase of feed and stock (fowl) for use in defendant’s farming (chicken) business, without which representation the agreement would not have been considered by defendant.”

At some point during the trial the claim of Cargill for enforcement of lien, and C.Q.’s defense and counterclaim for cancellation of the lien, were removed from consideration by the jury and reserved for determination at a future time by the court. The enforcement and validity of the lien is thus not at issue on this appeal. However, the circumstances surrounding the execution of the lien on accounts receivable, and the fact of Cargill’s acceptance, and suit for enforcement, of the lien, bear on the contractual relationship between the parties, as well as the damages claimed by C.Q. Farms. This was an issue below and is an issue on appeal.

At trial both sides presented evidence as to the past transactions between the parties, the custom and practice within the egg and poultry business and the feed business, as well as the internal operating procedures of both companies. The evidence adduced, and permissible inferences therefrom, created conflicts on questions material to liability as well as to damages. These matters were appropriately for the jury. From the record here we can only conclude that the trial court in directing the verdict and withdrawing the case from consideration by the jury at the conclusion of all the evidence, was of the view that no applicable principle of law would support a verdict favoring C.Q. Farms, either wholly or partially, on its affirmative defenses or its counterclaim for breach of contract. We disagree.

The jury was entitled to accept the testimony of Paul Dilgard and other witnesses for C.Q. Farms and find that the terms of the contract between the parties were as testified to by those witnesses rather than as testified to by Cargill’s witnesses. The existence of a contract between the parties is evidenced by written commitments of C.Q. Farms of record, and by the evidence of past performance on both sides under the agreement. The question is what commitment was made by Cargill as consideration for the contract.

Cargill’s evidence was that extension of a $150,000 line of credit was the extent of its contractual obligation, and that its District Manager, Hugh Felder, told Paul Dilgard, C.Q.’s president, in a phone conversation prior to the execution by C.Q. of the finance agreement, that a $150,000 line of credit had been approved. That evidence is directly contradicted by Dilgard, who denied the Felder communication and testified as follows:

“Q And did you ever settle with Mr. Meehan [Regional Manager for Cargill] upon what additional security would be required for this line of credit?
A [Dilgard] After a lot of discussion and all, we did reluctantly; yes, sir.
Q And what security package was contemplated in this respect?
A We pledged to them our accounts receivable.
Q Did you maintain in existence a personal guarantee? — Was that a part of it?
A Yes, sir. They asked that it remain.
Q Were the pullet financing arrangements to continue to be on a secured basis with respect to the birds?
A Yes, sir; they had title to the birds.
Q And that was a security package?
A Yes, sir. To my knowledge. Yes, sir.
Q During your discussions with Mr. Meehan, Mr. Dilgard, did you ever speak with him or mention to him any other figure than $250,000 for the total line of credit?
A Never; at no time.
Q Did he ever mention any other figure to you?
A I don’t recall any other figure ever being mentioned but that. That was the figure we needed to continue our business, to conduct our business and operate efficiently. That was the reason for our purchase of the egg machine.
******
Q Mr. Dilgard, who brought that document [assignment of C.Q.’s accounts receivable] to you?
A Don Meehan.
Q And where did you sign it?
A It was signed in my office.
Q What did you state to Mr. Meehan upon presentation of that document?
A I stated to him that I — or he stated to me that our line of credit had been approved for the $250,000 and this was the reason for the document and my signature.” (e.s.)

William Smith, witness for C.Q., was present at the time and heard Meehan’s statement.

In evaluating the foregoing testimony, C.Q. Farms was entitled to have the jury consider the past transactions between the parties and Cargill’s practice of making its own financial commitments verbally through either Felder or Meehan, while obtaining written financial commitments from C.Q. Farms. The evidence establishes that Meehan had authority to act on Car-gill’s behalf in obtaining the execution by C.Q. Farms of liens, finance arrangements and feed purchase commitments and, as an essential part of that function, had authority to state the amount of the line of credit approved, in obtaining execution of the documents. The jury was entitled to find on the record here that the total amount pledged by C.Q., including the flocks, accounts receivable of more than $247,000, as well as personal guarantees by C.Q. owners, was more than adequate to support the $250,000 line of credit. The security was in addition to the anticipated profit to Cargill from sales of feed for the flocks to be financed and interest charges on poultry finance agreements.

There was evidence that Cargill’s practice of keeping its obligations on credit arrangements with customers verbal gave flexibility from Cargill’s point of view. There was evidence that Cargill felt free to “call our money and discontinue business with the account” if sales of feed to C.Q. dropped below a certain percentage point of return to Cargill.

C.Q. was also entitled to have the jury consider the evidence that the negotiations between Meehan and Dilgard were for the extension by Cargill of a specific amount of credit in return for a specific package of financing agreements in addition to the anticipated feed purchases by C.Q. Farms. The evidence was that the specific amount of credit sought was $250,000 and that amount, and no less, would enable C.Q. to purchase both flocks and feed sufficient to maintain economic utilization of C.Q.’s egg processing machine that could process 1,200 dozen eggs per hour. Testimony was that C.Q. was unwilling to place a lien on its accounts receivable for any amount less than that specifically requested.

This evidence supports C.Q.’s contention that the request for the line of credit was an offer to enter into a specific financial agreement, a key provision of which was the $250,000 line of credit. Cargill admittedly knew the terms of C.Q.’s offer but made no counter-offer of $150,000. Some months after execution of the security agreement by C.Q. (at a time when C.Q. was feeding more than 200 thousand chickens), Cargill served notice that the line of credit was $150,000 and no further credit would be extended. There is conflict as to whether C.Q. was in arrears on any of its obligations to Cargill at that time.

Much evidence below, and argument here, has been directed to the question of whether Cargill’s Regional Manager, Meehan, had real or apparent authority to bind Cargill in financial matters. That question was clearly for the jury in view of the particular facts of record. There is, however, another basic concept of agency law which does not depend on the agent’s authority, and is applicable here, to wit: The principal may not accept the benefits of a transaction negotiated by the agent and disavow the obligations of that same . transaction. The rule is stated in the Restatement of Agency, in part as follows:

“The purported principal must take the transaction in its entirety, with the burdens as well as the benefits.
He cannot affirm a contract and disavow unauthorized terms which the purported agent included .
******
There is affirmance if the purported principal, with knowledge of the facts in an action in which the third person . is an adverse party: (a) bring suit to enforce promises which are part of the unauthorized transaction or to secure interests which were the fruit of such transaction and to which he would be entitled only if the act had been authorized . . .”

The foregoing rule applies in Florida. Proodian v. Plymouth Citrus Growers Association, 152 Fla. 684, 13 So.2d 15 (1943); Standard Oil v. Nickerson, 103 Fla. 701, 138 So. 55 (1931); Meyer v. Nator Holding Company, 102 Fla. 915, 136 So. 636 (1931); Love v. Brown Development Co. of Michigan, 100 Fla. 1373, 131 So. 144 (1930); Massachusetts Bonding and Ins. v. Hoxie, 129 Fla. 332, 176 So. 480 (1937) and Peace River Phosphate Mining Company v. Thomas A. Green, Inc., 102 Fla. 370, 135 So. 828 (1931).

In the Meyer case, supra, the Supreme Court held (136 So. at 638):

“The law is settled in this jurisdiction that when one person acts for another who accepts the fruits of his efforts, the latter is deemed to have accepted the methods employed, and he may not, even though innocent, receive such benefits and at the same time disclaim responsibility for the means by which they were acquired . . . ”

In Standard Oil v. Nickerson, supra, the agent of Standard Oil secured a release from an employee of Standard Oil who had suffered personal injuries on the job, and in consideration promised the injured employee that Standard Oil would agree to continue him in its employ for his lifetime at a salary equal to the amount he was earning at the time he received injuries. The evidence was that the agent of Standard Oil, who had authority to obtain releases from injured workmen, was without authority to make such an agreement. The Supreme Court affirmed a jury verdict for the employee quoting the Meyer decision, supra, and stating:

“In this case, it appears that the Standard Oil Company has accepted the releases which were secured by its agent Rogers. And, by accepting them, it has obtained the fruits of the exercise of Rogers’ agency in procuring such releases, and it cannot be heard to complain in this case . . . ”

In the instant case Cargill accepted the lien on accounts receivable obtained by its agent on the representation that a $250,-000 line of credit was approved, that lien was recorded and Cargill subsequently filed suit for enforcement of the lien. Those facts plus the testimony of Paul Dilgard, quoted above, are sufficient to take this case to the jury to determine whether Car-gill’s obligation under the contract, actual, implied or as ratified on acceptance of the benefits of the transaction, was for a $250,-000 line of credit.

The other points on appeal are the alleged error of the trial court in striking C.Q.’s damage schedule, Exhibit 43, prepared by Mr. Smith, from evidence, and in refusing to permit C.Q. to read the deposition of Don Meehan into evidence. The testimony of Smith was based on calculations of a wide number of factors using industry standards and past business experience as a measure of business damage and was properly admissible. However, the admissibility of the damage schedule itself was within the trial court’s discretion and no error has been demonstrated in the exercise of that discretion. As to the deposition of Don Meehan, a witness who was available to testify, but not called by either side, no error was shown in the trial court’s refusal to allow use of the deposition by C.Q. Farms as part of its case. •

Accordingly, the judgment below is REVERSED and the cause is REMANDED for further proceedings consistent herewith.

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

      . Verdict for Cargill was entered by the court in the amount of $179,067.60, undiminished by any set-off or counterclaim.

      . No question of Statute of Frauds was presented.

      . Anticipated feed sales by Cargill to C.Q. Farms as a result of Cargill’s extension of line of credit was 9,000 tons per year. Overall, the projected ROI (return on investment) to Cargill was 26% to 38%. It appears that C.Q. was required to feed the flocks subject to lien with Nutrena feed purchased from Cargill. At least two of the security agreements provided:

        “The financing assistance made available hereunder will be extended for the purchase of Nutrena Feeds . . Should producer [C.Q. Farms] cease using such assistance while the same is available under the provisions hereof by entering upon a feeding program for said pullets involving other than Nutrena Feeds, then Cargill, at its option, may declare the entire amount owing hereunder immediately due and payable and be free of all further obligations under this agreement.”
      A Cargill memo also shows that the line of credit arrangement was to “eliminate Allied,” a competing feed supplier from selling to C.Q., and by August, 1974, 100% of C.Q.’s feed was purchased from Cargill.

      . Restatement, Law of Agency, 2d, §§ 96, 97.


author: KEHOE, Judge.

text:
    Charles PARKER, Appellant, v. The STATE of Florida, Appellee.
    No. 77-1370.
    District Court of Appeal of Florida, Third District.
    Oct. 3, 1978.
    Rehearing Denied Nov. 9, 1978.

      Bennett H. Brummer, Public Defender, and Elliot H. Scherker, Asst. Public Defender, for appellant.
    Robert L. Shevin, Atty. Gen., and Joel D. Rosenblatt, Asst. Atty. Gen., for appellee.
    Before PEARSON, BARKDULL and KEHOE, JJ.
   KEHOE, Judge.

Appellant, defendant below, brings this appeal from an adjudication of guilty entered by the trial court after a plea of nolo contendere to the charges of possession of heroin and possession of narcotic paraphernalia. During the course of the proceedings below, appellant, after entering his nolo contendere plea, reserved the right to appeal the denial of his motion to suppress certain physical evidence. The trial court imposed a two year term of probation on appellant. We reverse.

Appellant’s sole point on appeal is stated in his brief as follows:

“The trial court erred in denying a motion to suppress evidence seized from the defendant where the initial stop of the defendant was not based upon a reasonable suspicion that he was engaged in criminal activity, and the contraband seized from the defendant during the course of the stop was therefore obtained in violation of the Fourth and Fourteenth Amendments to the Constitution of the United States and Article I, Section 9, 12 [sic] of the Constitution of the State of Florida.”

The initial question presented to us by this appeal is whether, as reflected by the record, appellee, the prosecution below, sustained its burden of proof of showing the reasonableness of the original “stop” of appellant. The facts upon which our decision is based may be summarized as follows:

Officer Arnold Findley of the City of Hialeah Police Department was on routine patrol of a warehouse area in Hialeah at approximately 6:30 P.M. on February 28, 1977 when he observed appellant walking along the street. Officer Findley was aware that appellant had previously been arrested for burglary and narcotics offenses, although he had never personally arrested appellant and was unaware of any convictions. The officer had seen appellant “in a couple of other cases in the area”.

As the officer in his police car drove past appellant, appellant turned to look at him. Appellant then continued to walk in the same direction, and did not flee.

Officer Findley then turned his car around, and stopped near appellant. Appellant did not flee when approached by the officer. Officer Findley exited his car, stopped appellant, and demanded that he produce identification. Officer Findley did not believe that appellant had committed a criminal offense:

Q. At the time you stopped him, did you have have reason to believe that he had committed a crime?
A. Just like I stated, it was a warehouse area, and the warehouse area was closed at the time.

Rather, appellant had aroused the suspicions of the officer by turning to look at him:

Q. Did he do anything that aroused your suspicions?
A. I initially passed him and saw him turn around and observe me, and I turned around and approached.
Q. Based upon your observations, had he committed any violation of the law, other than observing you?
A. He was in a closed warehouse area and it was my job to investigate and find out what the reason was for him to be in that area.

When officer Findley inquired of appellant regarding his presence in the area, he responded that “he was going to a store or something to that effect.” The officer testified that he had no reason not to believe appellant.

In response to the demand for identification, appellant produced identification which apparently had a female name upon it. Officer Findley thereupon proceeded to conduct a “pat-down” search. He stated that the purpose of the search was “[f]or my own safety.” Officer Findley further stated that he would have searched appellant even if proper identification had been produced.

After the stop, officer Findley observed a cylindrical bulge in the right trouser pocket of appellant. As he touched the object, which he thought might be a knife or a screwdriver, appellant jumped away from the officer and put his right hand in the pocket. Officer Findley then forcibly removed appellant’s hand from his pocket, and observed a clear plastic bag which appeared to contain a syringe inside of the pocket.

Officer Findley seized the bag, which also contained needles and bottlecap “cooker”. Appellant then fled, and was subsequently captured by the officer.

Appellant’s motion to suppress alleged that the evidence seized from him during this encounter was the product of an illegal stop and was therefore inadmissible. At the hearing of his motion, appellant’s counsel stipulated that the arrest affidavit and the testimony of officer Findley on deposition and at the preliminary hearing would be the testimony on the motion. After considering this testimony, the court denied the motion.

When a police officer has a reasonable suspicion that an individual is engaged in criminal activity, a limited investigatory stop on less than probable cause is constitutionally permissible. Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968). To justify a “stop”, the police officer “must be able to point to specific and articulable facts which, taken together with rational inferences from those facts, reasonably warrant that intrusion.” Id. at 21, 88 S.Ct. at 1880 (footnote omitted).

The Terry standards have been codified in Section 901.151, Florida Statutes (1977), which provides in pertinent part:

(2) Whenever any law enforcement officer of this state encounters any person under circumstances which reasonably indicate that such person has committed, is committing, or is about to commit a violation of the criminal laws of this state or the criminal ordinances of any municipality or county, he may temporarily detain such person for the purpose of ascertaining the identity of the person temporarily detained and the circumstances surrounding his presence abroad which led the officer to believe that he had committed, was committing, or was about to commit a criminal offense.

The circumstances which will justify an investigatory stop must reasonably indicate that the individual is engaged in criminal activity, or the stop is illegal. Colodonato v. State, 348 So.2d 326 (Fla.1977); Whitley v. State, 349 So.2d 840 (Fla. 2d DCA 1977); State v. Lundy, 334 So.2d 671 (Fla. 4th DCA 1976); Perry v. State, 296 So.2d 505 (Fla. 3d DCA 1974).

In our opinion, the provisions of Terry and Section 901.151 were violated in this case, and the evidence which was obtained as a result of the stop of the defendant was unlawfully seized. Whitley v. State, 349 So.2d 840 (Fla. 2d DCA 1977); and Lewis v. State, 337 So.2d 1031 (Fla. 2d DCA 1976). The trial court therefore erred in denying appellant’s motion to suppress that evidence.

The only basis stated by the arresting officer for his stop of appellant was that he turned to look at the officer as he drove past in his police car. The officer did not state that he believed appellant had committed a criminal offense. Further, appellant did not flee after observing the officer drive past him, but continued to walk in the same direction. Nor did appellant flee when approached by the officer. When officer Findley inquired of appellant regarding his presence in the area, he responded that “he was going to a store or something to that effect.” The officer testified that he had no reason not to believe appellant.

Officer Findley conducted a “pat-down” search of the defendant after the defendant, in response to a demand for identification, produced identification with a female name. However, he testified that he would have searched appellant even if proper identification had been produced.

We feel that the circumstances under which officer Findley observed appellant do not support a reasonable suspicion that he was engaged in a criminal activity. Such suspicion must be “founded”, that is, it must have some factual foundation and cannot be a “ ‘[m]ere’ or ‘bare’ suspicion”, which is insufficient to support a detention. State v. Stevens, 354 So.2d 1244, 1247 (Fla. 4th DCA 1978). There must be a “founded suspicion” that the individual encountered by the police officer “is involved in criminal activity.” Maruca v. State, 329 So.2d 427, 429 (Fla. 3d DCA 1976), citing United States v. Rias, 524 F.2d 118, 120-21 (5th Cir. 1975). Officer Findley could point to no articulable basis for his suspicion except the fact that appellant turned to look at him as he passed. This is insufficient.

We hold that appellee has failed to sustain its burden of showing the reasonableness of the original “stop” of appellant in this case and that the evidence which was obtained as a result of the stop was illegally seized. Accordingly, the trial court erred in denying appellant’s motion to suppress. For these reasons, the judgment of conviction and sentence appealed are reversed.

Reversed.


text:
    Nelson JAIME, Molina Garage, Inc., and Travelers Insurance Company, Appellants, v. Carol J. VILBERG and James E. Vilberg, her husband, Appellees.
    No. 77-1759.
    District Court of Appeal of Florida, Third District.
    Oct. 3, 1978.
    Rehearing Denied Nov. 9, 1978.

      Adams & Ward and Steven Kent Hunter, Miami, for appellants.
    Joseph C. Brannen, Miami, for appellees.
    Before HENDRY, BARKDULL and KEHOE, JJ.

       Judge Barkdull participated in the decision i: this case but did not hear oral argument.

   KEHOE, Judge.

Appellants, defendants below, appeal a final judgment entered pursuant to a jury verdict in favor of appellees, plaintiffs below. We reverse.

Appellees filed suit against appellants alleging that appellee Carol Vilberg sustained personal injuries in an automobile accident caused by appellant Nelson Jaime’s negligence. Appellants admitted liability and defended on damages. The main element of damages alleged by appellees was the loss of hearing to Carol caused by the accident. Appellees contended that the nature of the injury to Carol concerned the aggravation of a pre-existing hearing problem. The case was tried before a jury on the sole issue of damages. From a final judgment in favor of appellees, appellants appeal.

The issues on appeal revolve around whether certain evidence pertaining to a prior audiogram testing the hearing of Carol should have been admitted into evidence. Because the extent of the loss of Carol’s hearing was at issue, appellants attempted to introduce into evidence an audiogram that was conducted on her the year before. Appellants attempted to introduce the audi-ogram into evidence as a business record pursuant to Section 92.36, Florida Statutes (1975). Appellees objected to its introduction on the following grounds: (1) it was hearsay; (2) the audiogram was not within the purview of Section 92.36 as an exception to the hearsay rule; and (3) no proper predicate was laid for its admission. Further appellees contend that the trial court did not err in refusing to allow one of appellants’ witnesses to testify in regard to the audiogram when appellants did not list this witness in their pre-trial catalogue.

Appellants contend that the audio-gram was a business record within the contemplation of Section 92.36 and, therefore, admissible as a business record. We agree. Similar medical records have frequently been held to be business records. See, e. g., Brevard County v. Jacks, 238 So.2d 156 (Fla. 4th DCA 1970); and Exchange National Bank of Tampa v. Hospital of Hillsborough County, 181 So.2d 9 (Fla. 2d DCA 1965). See generally Annot., 66 A.L.R.2d 537 (1959).

However, to be admissible as a business record, such a medical record must have a proper predicate laid for its admission. See generally National Car Rental System, Inc. v. Holland, 269 So.2d 407 (Fla. 4th DCA 1972); and Annot., 19 A.L.R.3d 1008 (1968). In the instant case, one of the witnesses, Lillian Lucke, who appellants attempted to use in laying such a predicate was rejected, pursuant to objection of ap-pellees, because she had not been listed in appellants’ pre-trial catalogue. We think that this was error. Both appellants and appellees had listed as a witness the records custodian of the business that kept the au-diogram; neither had listed a specifically named person. During the taking of Carol’s deposition, appellants asked if she had recently had any hearing tests. In response, Carol stated that she had not been recently tested, thereby, misleading appellants. If Carol had not so misled appellants, they would have discovered the actual name of the records custodian who conducted the hearing test, and listed the name on their witness list. Without Lucke’s testimony, appellants were thwarted in their attempt to lay a proper predicate for the admission of the audiogram as a business record into evidence. The prejudice to the defense of the case was manifest in being denied the right to show the jury that Carol’s deafness (the crux of the damages) was the same before the accident as after it. Based on these facts, we believe that the trial court abused its discretion in not permitting Lucke to testify.

Reversed.


author: PER CURIAM.

text:
    Stanley PRZYBYSZEWSKI, Sr., as the father and administrator of the Estate of Ronald Przybyszewski, Deceased, Appellant, v. METROPOLITAN DADE COUNTY, a Political Subdivision of the State of Florida, d/b/a Dade County Medical Examiner’s Office and American Home Assurance Company, Appellees.
    No. 77-2209.
    District Court of Appeal of Florida, Third District.
    Oct. 3, 1978.
    Rehearing Denied Nov. 9, 1978.

      Mark J. Feldman, Miami, for appellant.
    Fowler, White, Burnett, Hurley, Banick & Knight and Henry Burnett, Miami, for appellees.
    Before PEARSON, HENDRY  and KE-HOE, JJ.

      Judge Hendry participated in the decision in this case but did not hear oral argument.

   PER CURIAM.

Stanley Przybyszewski was the plaintiff in the trial court. He sued Dade County upon an allegation that the County, through its Medical Examiner’s Office, willfully and maliciously interfered with plaintiff’s right to possess the body of his dead son. The son was killed in an automobile accident. The son’s body was mistakenly identified by police and later by a relative of another person killed, to be that of the other person.

After a trial before a jury, at which the court reserved ruling on the defendant’s motions for a directed verdict, the trial judge allowed the cause to go to the jury. The jury returned a verdict for the plaintiff. The court then granted the defendant’s motion for a directed verdict and entered judgment for the defendant. This appeal followed.

The plaintiff claims that he established a prima facie case of negligence and that malice may be inferred from that negligence. He relies upon Kirksey v. Jernigan, 45 So.2d 188 (Fla.1950). We find that case inapplicable to the evidence in the present case. In Kirksey, the Supreme Court dealt with the sufficiency of the initial pleading and pointed out that the general rule that there can be no recovery for mental pain and anguish unconnected with physical injury arising out of the negligent breach of contract would not apply when the case was fully in tort and the wrongful act is such as reasonably to imply malice.

If the plaintiff proved any negligence in the instant case, it could not be found by reasonable men to have been more than slight negligence. The decision of the trial judge followed the law as set forth in Brooks v. South Broward Hospital District, 325 So.2d 479 (Fla. 4th DCA 1975).

Affirmed.

      . The trial judge found:
      ‡ ifc * ‡ jji *
      “ . . . the Court having heard argument of counsel and being of the opinion that the plaintiff failed to present evidence establishing a prima facie case of conduct on the part of these defendants sufficient to support the claim asserted herein, and being of the further opinion that the verdict as returned by the jury was and is against the manifest weight of the evidence, . . . ”


author: KEHOE, Judge. PEARSON, Judge

text:
    Edward KING and Vivian King, Appellants, v. CITY OF CORAL GABLES, Appellees.
    No. 77-2252.
    District Court of Appeal of Florida, Third District.
    Oct. 3, 1978.
    Rehearing Denied Nov. 9, 1978.

      Aronovitz & Weksler and Bernard B. Weksler and Anne-Lise Gustafson, Miami, for appellants.
    Charles H. Spooner and Robert D. Zah-ner, Coral Gables, for appellees.
    Before PEARSON, HENDRY and KE-HOE, JJ.
   KEHOE, Judge.

Appellants, plaintiffs below, bring this appeal from a final summary judgment dated October 4, 1977, entered by the trial court in favor of appellee, defendant below. We reverse.

The facts in this appeal are not in dispute, and they may be summarized as follows:

Appellants, Mr. and Mrs. Edward King, have lived in Dade County for over 40 years and were the owners of the advertising specialties business known as The King Co., 310 Alhambra Circle, Coral Gables, Florida, until their retirement from business in 1972. They presently reside at 1321 Blue Road, Coral Gables, Florida.

Appellants are the fee simple owners, since August 1975, of certain real estate known as Lots 69, 70 and 71, in Block 57, of RIVIERA SECTION, Coral Gables, Florida, commonly referred to as 1252 Blue Road. The property has a frontage of 150 feet and consists of three contiguous lots, each with a dimension of 50 feet by 130 feet. At the time appellants purchased the property it was improved with a single family residential building consisting of 2,200 square feet and situated in the center of and on all three lots. The front of appellants’ property borders on Blue Road which is known as having heavy through traffic, while the rear of the property borders on Riviera Golf Course.

On January 10, 1976, while appellants were in the process of remodeling their home, it was completely destroyed by fire; subsequently, the entire building was razed. Since then, appellants’ property has consisted of an unimproved lot containing three 50-foot platted building lots.

Appellants, desiring to reduce the maintenance of a large lot, wanted to rebuild and to place a home for themselves and one for their daughter on their three 50-foot platted building lots. They requested that the Building and Zoning Department of Coral Gables issue building permits enabling them to build two residences on their three lots, allowing one and one-half lots, each consisting of 75-foot frontage, for each of the residences. They planned to immediately build the one residence for themselves. The architectural drawings called for a two-story townhouse of Bermuda styling similar to others in the block. However, they were informed by officials in the Building and Zoning Department that the provisions of Section 8.02 of the Coral Gables Zoning Code, as amended by Ordinance No. 2058, prevented the City from issuing the building permits as requested by appellants and that they would be able to obtain a building permit to construct only one residence on their three 50-foot platted lots.

Ordinance No. 2058 provides, in pertinent part, as follows:

“ . . . no building or structure designed for ‘R’ ‘D’ or ‘A’ use shall be constructed or erected on a building site having a street frontage of less than 50 feet; nor shall more than one such building or structure be constructed or erected upon any one platted lot; provided, however, that wherever there may exist a single family residence building which was constructed on a building site containing two or more platted 50-foot lots, said building shall not henceforth be reduced or diminished in any manner and if said residence building is demolished or removed therefrom, no permit shall be issued for the construction of more than one residence building site.” [Emphasis added].

Because one single family residence had previously been constructed on appellants’ three 50-foot platted lots, they were told by officials in the Building and Zoning Department that Ordinance No. 2058 would prohibit them from building more than one residence. However, if no residence had previously been built on the same three lots, appellants would have been able to obtain a building permit for a single family residence on each of the three 50-foot platted lots.

Other lots bordering the golf course vary from 50-foot platted lots to 150-foot platted lots, and vary from duplex to residential zoning. On Blue Road the zoning is residential, but the frontage of the lots there also vary from 50-foot to 150-foot platted lots. Several homes on Blue Road, within the same block as appellants’ property, are built on lots with between 50- and 65-foot frontage. There are several vacant 50-foot platted lots around the golf course and on Blue Road within a half-mile radius of appellants’ property.

Appellants were instructed by the City of Coral Gables zoning officials to apply for a variance in order to obtain building permits to build more than one residence on their three 50-foot platted lots. The variance application was to build two houses, each on one and one-half lots, consisting of 75-foot frontage each. A variance was promptly applied for by appellants and denied by the Zoning Board, despite the fact that the Zoning Board found that there were home-sites of 50 feet in the same block as appellants’ property, and some of 62 feet and 65 feet.

Mrs. King had spoken to the neighbors on both sides and none of them had any objection to the division of the property. Over 70 nearby property owners signed a Waiver of Objection to the granting of the variance. Less than ten property owners in the neighborhood objected to the variance being granted. The immediate neighbors of the appellants did not object.

It is not disputed that there are several 50-foot lots within a short distance of appellants’ lots, and that the Ordinance does not prohibit the building of a residence on each of those lots. Building permits for the building of residences on 50-foot lots have also been freely granted and building permits issued to property owners in the same neighborhood and in the near vicinity of appellants’ lots.

An appeal was taken to the City Commission and the decision of the Zoning Board was affirmed. The Mayor, in considering the appeal, stated that the purpose of the Ordinance was to preserve the integrity of the neighborhood from speculators.

Thereafter, appellants filed a complaint for declaratory and injunctive relief, seeking to have the trial court declare Ordinance No. 2058 arbitrary and unconstitutional as applied to their property, and praying that the trial court restrain the City of Coral Gables from interfering with appellants’ reasonable use of their property. Subsequently, both appellants and appellee filed motions for summary judgment. The trial court denied appellants’ motion and granted appellee’s motion. From the final summary judgment entered by the trial court in favor of appellee, appellants appeal.

In their point on appeal, appellants attack, basically, the constitutionality of Ordinance No. 2058 as applied to their property. Appellants’ constitutional attack gives this court jurisdiction of their appeal; however, in our opinion, it is unnecessary for us to reach the constitutional questions raised. We believe that a reasonable interpretation of Ordinance No. 2058 shows that it is inapplicable to the facts of the instant case. The obvious intent of the Ordinance was to prevent developers, etc., from coming into Coral Gables, tearing down existing residences on large lots, and then building more residences on smaller lots. A careful reading of the Ordinance, shows that the reduction, diminution, demolishment, and removal referred to therein pertains to a voluntary or intentional reduction, diminution, demolishment or removal. In our opinion, the Ordinance does not contemplate and encompass the situation where, as in this case, there has been an involuntary and unintentional destruction of a residence by a casualty, i. e., a fire loss. The record reflects no evidence, whatsoever, that appellants were in any way responsible or at fault for the destruction of their residence. Under these circumstances, we hold that the trial court incorrectly applied the City of Coral Gables Ordinance No. 2058 to the facts of appellants’ cause. Accordingly, we reverse and remand the cause for further proceedings not inconsistent with this opinion.

Reversed and remanded.

PEARSON, Judge

(concurring specially).

I would hold the ordinance unconstitutional as it applies to appellant’s property. See Wiggins v. City of Jacksonville, 311 So. 2d 406 (Fla. 1st DCA 1975).


text:
    STATE of Florida, Appellant, v. Paul Alfred HUMPHREY, Appellee.
    No. II-321.
    District Court of Appeal of Florida, First District.
    Oct. 4, 1978.
    Rehearing Denied Nov. 8, 1978.

      Robert L. Shevin, Atty. Gen., and Charles W. Musgrove, Asst. Atty. Gen., for appellant.
    Michael J. Minerva, Public Defender, and Louis G. Carres, Asst. Public Defender, for appellee.
   PER CURIAM.

The State appeals an order granting ap-pellee/defendant’s motion to discharge under the speedy trial rule, Fla.R.Crim.P. 3.191(a)(2). Defendant’s demand for speedy trial, filed prior to the filing of the-information, was a nullity and was ineffective as a demand for speedy trial entitling defendant to discharge under Rule 3.191(a)(2). State v. Gravlee, 276 So.2d 480 (Fla.1973); State ex rel. Hanks v. Goodman, 253 So.2d 129 (Fla.1971); State v. Hill, 299 So.2d 625 (Fla. 1st DCA 1974), quashed in part 313 So.2d 766 (Fla.1975). Accordingly, the order discharging defendant under the speedy trial rule is reversed and the cause remanded for further proceedings consistent herewith.

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


author: SCHEB, Acting Chief Judge.

text:
    Mary Catherine SULLIVAN, Appellant, v. Charles SULLIVAN, Appellee.
    No. 77-1506.
    District Court of Appeal of Florida, Second District.
    Oct. 4, 1978.

      Edwin Peck, St. Petersburg, for appellant.
    Wayne 0. Smith, of Wallace & Smith, St. Petersburg, for appellee.
   SCHEB, Acting Chief Judge.

Appellant wife challenges several provisions of a final judgment of dissolution of marriage. We focus on her claims that: (1) her alimony award was inadequate; (2) the court was without authority to provide for the sale of the marital home; and, (3) the court improperly ordered division of the parties’ furniture, furnishings, and other personal property.

The award of alimony challenged by the wife was couched in the following language:

Petitioner [husband] be, and is hereby ordered to pay to the Respondent [wife] the sum of $600.00 per month for a period of one year as alimony. At which time the sum shall be reduced to $500.00 per month for a period of three years, at that time the same shall be reviewed upon the motion of either of the parties hereto.

In reviewing an alimony award it is, of course, necessary to consider the circumstances of the parties. At the time of the final hearing the husband and wife were each 56 years old, and had been married for 32 years. During almost all of their marriage the husband had been an officer on active duty in the Marine Corps. The parties maintained a standard of living commensurate with his position. Their two children are now grown and live away from home.

The parties only substantial asset was their residence, which they acquired as tenants by the entireties upon the husband’s retirement from the Marine Corps in 1974. They valued their home at between $65,000 and $85,000, but it was encumbered by a $48,000 mortgage. Their other assets were modest considering the length of their marriage and their living standards. The wife does exercise some control over additional assets belonging to her mother, and the husband has a lifetime military pension.

In December 1976 the husband petitioned for dissolution of marriage. In his financial affidavit, which was computed on a weekly basis, the husband reported his retirement pension to be $516 per week. He has a bachelor’s degree, and has applied for admission to law school. He has some significant medical problems, as evidenced by his 70% disability rating upon retirement; however, he is assured of lifetime medical benefits from the military.

During the marriage the wife was not employed. Instead she capably fulfilled the responsibilities attendant with being a military officer’s wife. She maintained the home, which was no easy task considering that husband was frequently ordered to different duty stations. The wife has no significant education beyond high school, no employable skills, and no work experience. She too has some health problems. In short, she is ill-equipped to enter the job market at this late date.

Under circumstances similar to those here presented we have often held that a trial judge abused his discretion in not awarding permanent alimony. See, e. g., Messer v. Messer, 342 So.2d 1076 (Fla. 2d DCA 1977); Lash v. Lash, 307 So.2d 241 (Fla. 2d DCA 1975). We feel that permanent alimony was likewise appropriate in the instant case.

In determining the proper amount of alimony to award, a trial court should consider the husband’s ability to pay, the needs of the wife, and the standard of living shared by the parties during their marriage. Firestone v. Firestone, 263 So.2d 223 (Fla.1972); Lash v. Lash, supra. Applying these criteria to the instant case, we must conclude that the trial judge abused his discretion in awarding the wife only $600 per month for one year, and $500 per month for the following three years. We therefore direct the trial court to amend the final judgment to provide $750 per month permanent alimony for the wife. See Schultz v. Schultz, 290 So.2d 146 (Fla. 2d DCA 1974).

The wife also contends that the trial court erred in ordering the marital home to be sold and the proceeds divided equally. In Carlsen v. Carlsen, 346 So.2d 132 (Fla. 2d DCA 1977) we approved of such a procedure as long as the pleadings seek partition and contain the necessary allegations. In the instant case we find the husband’s petition met these requisites. However, we noted in Carteen that if the court allows the parties to conclude a nonjudicial sale the judgment must fix a reasonable deadline by which the sale must take place; and, that any judicial sale after that deadline must proceed in accordance with Chapter 64 of the Florida Statutes. The judgment now before us is deficient because it sets no deadline for the sale of the home by the parties.

The wife also attacks the portion of the judgment ordering the parties “to divide all of the furniture, furnishings and fixtures, as well as all personal property.” We must agree with her that the trial court could not order the division of “all personal property,” because there was no prayer for such relief in the pleadings and the issue was not tried by consent. Harrell v. Harrell, 345 So.2d 339 (Fla. 2d DCA 1977); Doane v. Doane, 330 So.2d 753 (Fla. 2d DCA 1976). The ordered division of the “furniture, furnishings and fixtures,” though sought by the pleadings, suffers from the same infirmity as the ordered sale of the marital home; i. e., it sets no reasonable deadline by which the division must be completed.

Accordingly, the provision of the judgment awarding alimony is stricken, and the trial court shall enter an amended final judgment granting the wife permanent alimony of $750 per month beginning September 1, 1977. The amended final judgment shall also include a reasonable deadline for the parties to sell or otherwise dispose of the marital home and furniture, furnishings, and fixtures. If the parties are unable to satisfactorily resolve such matters the trial court shall proceed with partition or judicial sale in compliance with Chapter 64. Finally, the language requiring the parties to divide all other personal property is stricken from the judgment.

Affirmed in part; reversed in part; and remanded to the trial court for further proceedings consistent with this opinion.

OTT and RYDER, JJ., concur.

      . It is unclear from the language of the final judgment whether the trial court intended the alimony award to be permanent or rehabilitative. However, even if the court intended permanent alimony, the award was inadequate to comport with the standards by which such awards are judged.


text:
    Robert Starr McLIN, William Starr McLin, Mary R. McLin and Government Employees Insurance Company, Appellants, v. E. H. GRADY and Mary A. Grady, the natural parents of Tony Lamata Grady, a minor, Appellees.
    No. JJ-305.
    District Court of Appeal of Florida, First District.
    Oct. 9, 1978.
    Rehearing Denied Nov. 9, 1978.

      Robert P. Gaines of Beggs & Lane, Pensacola, for appellants.
    Robert G. Kerrigan of Kerrigan, Estess & Rankin, Pensacola, for appellees.
   PER CURIAM.

The trial court granted a new trial on the ground that it had made an error in excluding certain evidence. We reverse.

The ruling of the trial court that certified copies of traffic convictions were not admissible because negligent entrustment was not an issue was correct. Cloo-ney v. Geeting, 352 So.2d 1216 (Fla. 2d DCA 1978). The trial court’s ruling that the citations were not admissible for impeachment purposes was also correct. Appellant Robert Starr McLin, testifying on appellees’ proffer, initially denied that he had been convicted of a crime. It developed immediately thereafter, however, that such denial was the result of a misunderstanding. — he thought that the traffic offenses were not crimes. When he was informed they were crimes, he freely admitted the offenses. Thus, there was no basis for admitting certified copies of convictions.

We reverse the order granting a new trial with directions to reinstate the jury verdict.

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


text:
    TRAVELERS INDEMNITY COMPANY, Appellant, v. Fernando PELAEZ, Jr., et al., Appellees.
    Nos. 77-1818, 77-1828.
    District Court of Appeal of Florida, Third District.
    Oct. 10, 1978.
    High, Stack, Lazenby & Bender and Alan R. Dakan, Miami, for appellant.
    Horton, Perse & Ginsberg and Edward A. Perse; Ratiner & Glinn, Miami, for appel-lees.
    Before HAVERFIELD, C. J., and PEARSON and HENDRY, JJ.

       Chief Judge Robert M. Haverfield participated in the decision in this case but did not hear oral argument.

   PER CURIAM.

Affirmed. See Dewberry v. Auto-Owners Insurance Company, 363 So.2d 1077 (Fla.1978), and Bryar v. Nationwide Mutual Fire Insurance Company, 363 So.2d 1082 (Fla.1978).


text:
    Norma BARO, Appellant, v. SOUTHEAST FIRST NATIONAL BANK OF MIAMI SPRINGS, Southeast First National Bank of Miami, etc., Appellees.
    No. 77-1821.
    District Court of Appeal of Florida, Third District.
    Oct. 10, 1978.
    Rehearing Denied Nov. 9, 1978.
    Nachwaiter, Christie & Falk and George M. Nachwalter and Jay M. Levy, Miami, for appellant.
    Corlett, Merritt, Killian & Sikes and Gerald E. Rosser, Steel, Hector & Davis, Miami, for appellees.
    Before HENDRY, KEHOE and HUB-BART, JJ.

       Judge Hubbart participated in the decision in this case but did not hear oral argument.

   KEHOE, Judge.

Appellant, plaintiff below, brings this appeal from a final judgment entered by the trial court pursuant to a directed verdict granted at the close of her case. We reverse.

Appellant filed an amended complaint seeking money damages against appellees for libel and defamation. Appellees answered and asserted, among other things, the affirmative defense of privilege. Thereafter, the cause came on for a jury trial. At the close of appellant’s case, the trial court, without specifying the grounds therefor, granted appellees’ motion for a directed verdict. Pursuant to the trial court’s direction, the jury returned a verdict for appellees and then the court entered a final judgment in favor of appellees. From this final judgment, appellant appeals.

Our review of the record indicates that the only reasonable hypothesis upon which the trial court could have granted appellees’ motion for a directed verdict was that a qualified privilege barred appellant’s action. Because the instant case is an appeal from a directed verdict rendered at the close of the plaintiff’s (appellant) case, we must view the testimony and other evidence in a light most favorable to appellant as a nonmoving party. If there was any evidence in the record to support a verdict for appellant, the entry of the directed verdict was improper. See, e. g., Teare v. Local Union No. 295, 98 So.2d 79 (Fla.1957); and Frank Coulson, Inc.-Buick v. Trumbull, 328 So.2d 271 (Fla. 4th DCA 1976). Applying this principle to the instant case, we believe that the trial court erred in directing a verdict against appellant at the close of her case. We feel that the question of the existence of a qualified privilege was one which could not be determined at the close of appellant’s case, but rather that the existence of any privilege was a matter to be established as an affirmative defense. Of course, this opinion should not be construed as commenting on the merits of such a defense. Accordingly, the final judgment appealed is reversed and the cause is remanded for further proceedings.

Because of this determination, it is not necessary for us to reach the other points raised by appellant on appeal.

Reversed and remanded.


text:
    Harold S. GOLDSTEIN, Appellant, v. Marcia L. GOLDSTEIN, Appellee.
    Nos. 77-2646, 77-2659.
    District Court of Appeal of Florida, Third District.
    Oct. 10, 1978.
    Rehearing Denied Nov. 9, 1978.
    Horton, Perse & Ginsberg and Mallory H. Horton, Miami, for appellant.
    Daniels & Hicks and Sam Daniels, Miami, for appellee.
    Before HAVERFIELD, C. J., and HUB-BART and KEHOE, JJ.
   PER CURIAM.

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


author: SMITH, Judge.

text:
    WEST BUILDING MATERIALS, INC., Appellant, v. ALLSTATE INSURANCE COMPANY et al., Appellees.
    No. JJ-184.
    District Court of Appeal of Florida, First District.
    Oct. 13, 1978.
    Rehearing Denied Nov. 8, 1978.
    O. E. Adams, Sr., Pensacola, for appellant.
    Charles L. Cetti of Cetti & McGraw, Pensacola, for appellees.
   SMITH, Judge.

An appeal from a summary judgment for defendant Allstate on appellant’s claim under a policy insuring the Arrant family against liability for property damage caused by “accident.” The policy excluded coverage for damage “which is either expected or intended” by the insured. Young Keith Arrant allegedly set off a smoke bomb in appellant’s building. The building burned. The trial court held as a matter of law that the fire was not an accident and rejected the possibility that Keith intended to cause smoke, not fire. We affirm. Hardware Mutual Cas. Co. v. Gerrits, 65 So.2d 69 (Fla.1953). Ignition of the bomb was the natural, probable, and intended result of Keith’s act. Braley v. American Home Assur. Co., 354 So.2d 904 (Fla.2d DCA 1978) does not suggest that ignition of the building was an unusual or unexpected result of igniting the bomb.

AFFIRMED.

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


text:
    INDUSTRIAL FIRE & CASUALTY INSURANCE COMPANY, Appellant, v. Sallie J. BRADDY, Appellee.
    No. 77-1594.
    District Court of Appeal of Florida, Fourth District.
    Oct. 18, 1978.
    Rehearing Denied Dec. 4, 1978.
    Sharon L. Wolfe of Greene & Cooper, Miami, for appellant.
    Gary A. Esler of Esler & Kirschbaum, P. A., Ft. Lauderdale, for appellee.
   PER CURIAM.

Upon consideration of the record and briefs of counsel for the respective parties, we determine the trial court erred in awarding to appellee $5,000 in personal injury protection (P.I.P.) insurance benefits from appellant after appellee had already collected $5,000 in P.I.P. benefits from another insurance company. Section 627.-736(4)(e), Fla.Stat.; State Farm Mutual Automobile Insurance Co. v. Kilbreath, 362 So.2d 474 (Fla. 4th DCA 1978).

Accordingly, the judgment of the trial court is reversed.

CROSS and BERANEK, JJ., and SCHWARTZ, ALAN R., Associate Judge, concur.


author: LETTS, Judge.

text:
    Ruth A. LANGSTAFF, Appellant, v. John M. LANGSTAFF, Appellee.
    No. 77-1639.
    District Court of Appeal of Florida, Fourth District.
    Oct. 18, 1978.

      James A. Lowe and George G. Daniels, of Lowe & Daniels, Orlando, for appellant.
    Leon Stromire of Stromire, Westman & Lintz, Cocoa, for appellee.
   LETTS, Judge.

This appeal is from a final judgment awarding $1,150 per month in alimony, same to be reduced to $700 upon completion of partition proceedings involving the marital home. We reverse in part.

This marriage was of 29 years duration and produced four children. At the time of the marriage the now 55 year old spouse was an airline stewardess, but since marriage, at her husband’s request, the wife has not worked outside the home. She suffers from rheumatoid arthritis, but has a real estate license from which she has so far realized a total of only $1,500.

The husband 58, is a urologist with some health defects which so far have not prevented him from full-time practice. The parties have lived well, perhaps too much so, in that no large estate has been built up, but the husband has a steady income which, while disputed, is at least $55,000 per an-num in salary from his P.A.

The final judgment provided for periodic alimony of $1,150 per month until the house is sold and thereafter $700 permanent, periodic. We are of the view that the reduction was error.

As we said in McAllister v. McAllister, 345 So.2d 352 (Fla. 4th DCA 1977), and McCloskey v. McCloskey, 359 So.2d 494 (Fla. 4th DCA 1978), if the wife needs $1,150 in permanent periodic alimony now, she will still need it after the house is sold, unless some eventuality takes place which we do not foresee. It is quite true that the wife will receive half of the net proceeds of the house sale, but the record indicates that her half share will be no more than $25,000 and she has to secure another place to live. All this being so, we see no reason why the $1,150 per month alimony awarded should be reduced, when we also consider that Dr. Langstaff’s monthly gross salary (not counting what his P.A. pays for) is nearly $4,600 or four times the amount of alimony awarded. Moreover, the alimony will be deductible by him and taxable to his wife.

As to the other points on appeal, we cannot say, under the facts presented, that the trial judge abused his discretion either in granting dissolution or in retaining jurisdiction to assess attorneys’ fees and tax costs. Likewise, although the award is not generous, we cannot hold that an award of $1,150 per month is so grossly inadequate that it is reversible error. Moreover, Dr. Langstaff’s net worth is very modest and we cannot fault the Trial Judge for not awarding lump sum alimony.

REVERSED IN PART AND REMANDED IN ACCORDANCE HEREWITH.

CROSS and MOORE, JJ., concur.


text:
    BANKERS INSURANCE SERVICE CORPORATION, a Foreign Corporation, and Underwriters At Lloyd’s (i. e., George Haycraft Milton), an unincorporated association, Appellants, v. SOUTHEASTERN HOME MORTGAGE COMPANY, Appellee.
    No. 77-1643.
    District Court of Appeal of Florida, Fourth District.
    Oct. 18, 1978.
    James A. Urban of Urban, Williamson & Davis, P. A., and W. Michael Clifford of Maguire, Voorhis & Wells, P. A., Orlando, for appellants.
    David B. King of Peed & King, P. A., Orlando, for appellee.
   PER CURIAM.

This is an appeal from a final summary judgment involving the trial court’s construction of an ambiguous provision in a contract of insurance. In Westchester Fire Insurance Co. v. In-Sink-Erator, 252 So.2d 856 (Fla. 4th DCA 1971), this court held that where the terms of a contract are ambiguous, casting doubt upon the intent of the parties, this intent must be determined by the trier of fact upon trial and is not a proper matter for disposition by summary judgment. Such is the case at hand. Accordingly, the final summary judgment is reversed with directions for further proceedings consistent with this opinion.

DOWNEY, C. J., and ANSTEAD and DAUKSCH, JJ., concur.


author: DAUKSCH, Judge.

text:
    Frederick DETHLEFSEN, Appellant, v. STATE of Florida, Appellee.
    No. 77-2046.
    District Court of Appeal of Florida, Fourth District.
    Oct. 18, 1978.

      Richard L. Jorandby, Public Defender, and Joseph R. Atterbury, Asst. Public Defender, West Palm Beach, for appellant.
    Robert L. Shevin, Atty. Gen., Tallahassee, and Robert L. Bogen, Asst. Atty. Gen., West Palm Beach, for appellee.
   DAUKSCH, Judge.

For us to consider is the adequacy of the description, on a search warrant, of the place to be searched. Appealed is an order placing the appellant on probation after his nolo contendere plea. He specifically reserved his right to appeal the denial of his motion to suppress when he entered his plea.

The description on the warrant is:

“A two story duplex dwelling house of wood frame construction, white in color, having the numerals ‘622’ affixed on the exterior wall, just east of the easternmost front door facing north, and said building located at 622 East Anderson Street, in the City of Orlando, County of Orange, State of Florida. The portion of said building to be searched is the easternmost half and may be gained entry by entering the left or easternmost door.”

The description on a search warrant is sufficient if the executing officer can identify, with reasonable effort the place to be searched Law v. State, 292 So.2d 596 (Fla. 2nd DCA 1974). If a building contains more than one dwelling unit and the State, which seeks the search warrant for the unit, has the duty to describe the particular unit to be searched and cannot use a general description of the entire building on the affidavit and warrant. State v. Gordillo, 245 So.2d 898 (Fla. 3d DCA 1971).

Here the police were directed to search a portion of a building — “the easternmost half.” Entry to that portion to be searched was to be gained “by entering the left or easternmost door.” The problem arises when we find that the building is not divided into an east half and west half but is divided into an upstairs and downstairs. Thus if the police search the easternmost half of the building they would be searching two apartments instead of one. There is nothing in the warrant or the affidavit for the warrant to indicate more than one dwelling was to be searched so there is a conflict at this point as to what to search.

The executing officers were directed to enter by the left or easternmost door. When entry was made it was made through this door and the entire downstairs apartment (including the western part) was searched. No attempt to enter the western door and the upstairs half of the duplex is alleged. In fact, although it is not determinative of this case, the seized hashish was found in the eastern half.

We find this case to be quite similar to Nofs v. State, 295 So.2d 308 (Fla. 2nd DCA 1974) and we ascribe to the standard stated in United States v. Johnson, 541 F.2d 1311 (8th Cir. 1976), “The constitutional standard for particularity of description in a search warrant dictates that the language be sufficiently definite to enable the searcher to reasonably ascertain and identify the place authorized to be searched . . .”

In Nofs, supra, the search warrant described the place to be searched as “the western-most apartment on the second story of the building.” When the officers executed the search they found the building to be divided vertically so that the western entrance on the second floor was into a single apartment with an upstairs and a downstairs. The other apartment, was not intruded upon and could not have been, since the entry door was only into the one townhouse type apartment.

In our case the facts are different only in that entry through the described door gained access to an apartment which is the lower half of a building divided horizontally rather than the west half of a building divided vertically. No intrusion was made on other premises and no access could be made through the described door. The standard to be applied is one of practical accuracy rather than technical nicety. United States v. Johnson, supra.

There is no error and the order is affirmed.

AFFIRMED.

DOWNEY, C. J., and ANSTEAD, J., concur.


author: DOWNEY, Chief Judge.

text:
    BOB ROSMAN PAINTING, INC., a Florida Corporation, Appellant, v. Donald CHENOWITH and Forest Hangee, Appellees.
    No. 77-2582.
    District Court of Appeal of Florida, Fourth District.
    Oct. 18, 1978.
    Perry L. Carry of Hallowes & Carry, P. A., Fort Lauderdale, for appellant.
    Joseph A. Vassallo, Palm Springs, for ap-pellees.
   DOWNEY, Chief Judge.

Appellees sued appellant for commissions allegedly due pursuant to both a written and oral contract. The trial court entered judgment for appellees and this appeal followed.

The written contract between the parties provided for appellant to pay appellees a 10% commission on all painting contracts appellees were able to negotiate for appellant. Appellees also claimed they had a similar oral contract for commissions on the sale of paint. After a trial without a jury the court found in favor of appellees on the written contract and awarded them a judgment for $4118.25 and found against appel-lees on the oral contract.

In their complaint appellees acknowledge that appellant has already paid them $480 on account of the contracts for which appel-lees claim commissions due. Appellant was not given credit for that amount in the judgment.

No reversible error having been made to appear, except the failure to allow appellant credit for the $480.00, the judgment appealed from is modified by reducing the amount thereof by $480.00, and as so modified the judgment is affirmed.

CROSS and ANSTEAD, JJ., concur.


text:
    Rayford MARTIN, Appellant, v. STATE of Florida, Appellee.
    No. 78-138.
    District Court of Appeal of Florida, Fourth District.
    Oct. 18, 1978.

      Joseph Jordan of Bailey & Jordan, P.A., West Palm Beach, for appellant.
    Robert L. Shevin, Atty. Gen., Tallahassee, and John D. Cecilian, Asst. Atty. Gen., West Palm Beach, for appellee.
   DAUKSCH, Judge.

This case comes to us from a denial of the appellant’s motion to vacate filed under Florida Rule of Criminal Procedure 3.850. We reverse because we find the appellant was denied effective assistance of counsel.

The public defender was appointed to represent the accused shortly after his arrest on December 24, 1974. On the 4th or 5th of January, 1975 an investigator from the public defender’s office visited the defendant in jail and in the discussion during that visit the defendant told the investigator of some witnesses who would provide an alibi for the defendant. They would testify he was with them drinking beer instead of some place else committing the charged crime, a Breaking and Entering.

The next time the defendant saw anyone from his attorney’s office was on the Friday before the trial was to start on the next Tuesday. The trial did start and was concluded on Thursday, February 13,1975. At the meeting between the defendant and his attorney at 8:30 P.M. or 9:00 P.M. that Friday the defendant told the attorney of his witnesses and the attorney stated: “I explained to him, you know, about how I just got the file and I’m sure we talked about the case. I must have gone through the discovery. Anyway, Mr. Martin was upset. He felt he was unjustly being incarcerated for something he didn’t do. So I didn’t ask for a continuance.”

The attorney went on to testify his file reflected nothing in regard to anyone ever attempting to contact the witnesses and “I don’t believe there was anything in the file to indicate we had even talked to Mr. Martin.” The attorney also confirmed he did nothing prior to trial to attempt to locate the witnesses and he recalled that during the voir dire examination of the jury the defendant asked him “Hey, how about my witnesses.” “It’s too late now, we (sic) have decided to go without them” was the attorney’s response.

It is significant that the trial judge, Hon. Lamar Rose, reduced the bond of the defendant to an amount one-tenth of the trial bond after the conviction and before sentencing. The attorney testified, “The judge agonized over whether he should grant my motion for acquittal at the end of the trial. Then at the end of the trial, he was surprised at the verdict.”

The testimony of the attorney at the hearing was probably summed up best by his saying, “As for as me preparing, I wasn’t ready.” No depositions were taken, no alibis checked out, no witnesses interviewed or subpoenaed, no effective preparation was made.

In order for a person accused of a crime to receive effective assistance of counsel there must be adequate preparation for trial, not just representation at trial. Caraway v. Beto, 421 F.2d 636 (5th Cir. 1970); Hollingshead v. Wainwright, 423 F.2d 1059 (5th Cir. 1970); Kimbrough v. State, 352 So.2d 925 (Fla. 1st DCA 1977); Moore v. United States, 432 F.2d 730 (3d Cir. 1970).

This is not a case of a tactical decision not to call a witness. It is a case of inability to call a witness due to inadequate assistance of counsel in derogation of the defendant’s right under the U.S.Const. amend. VI which guarantees “Assistance of Counsel for his defence” and Fla.Const., art. 1, § 16.

The order denying the petition to vacate the judgment and sentence is reversed and the matter is remanded for new trial.

REVERSED and REMANDED.

DOWNEY, C. J., and MOORE, J., concur.


text:
    Theodus B. McFARLIN, Appellant, v. STATE of Florida, Appellee.
    No. GG-475.
    District Court of Appeal of Florida, First District.
    Oct. 18, 1978.
    Michael J. Minerva, Public Defender, and Louis G. Carres, Asst. Public Defender, Tallahassee, for appellant.
    Robert L. Shevin, Atty. Gen., and George R. Georgieff, Asst. Atty. Gen., Tallahassee, for appellee.
   PER CURIAM.

Appellant’s appeal on the merits has been considered and is found to be without merit. The judgment is AFFIRMED. The sentence is technically defective because it does not specify the number of days of credit against the sentence for time served prior to sentencing. The sentence is VACATED and the case REMANDED for resentenc-ing. Appellant need not be present.

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


author: BOYER, Judge.

text:
    Robert Wayne TASCANO, Appellant, v. STATE of Florida, Appellee.
    No. KK-22.
    District Court of Appeal of Florida, First District.
    Oct. 18, 1978.

      Michael J. Minerva, Public Defender, and Louis G. Carres, Asst. Public Defender, for appellant.
    Robert L. Shevin, Atty. Gen., and Miguel A. Olivella, Jr., Asst. Atty. Gen., for appel-lee.
   BOYER, Judge.

Appellant urges that the trial court reversibly erred in denying his request that the jury be instructed in accordance with Fla.R.Crim.P. 3.390(a) [as amended, effective July 1, 1977] as to the maximum sentence which could be imposed for the offense charged.

That rule now provides:

The presiding judge shall charge the jury only upon the law of the case at the conclusion of argument of counsel and upon request of either the State or the defendant the judge shall include in said charge the maximum and minimum sentences which may be imposed (including probation) for the offense for which the accused is then on trial. (Emphasis supplied)

To those acquainted with the English language the word “shall” is construed as mandatory. That connotation has support in case law. See In the Interest of S.R. v. State, 346 So.2d 1018 (Fla.1977); Holloway v. State, 342 So.2d 966 (Fla.1977); City of Orlando v. County of Orange, 276 So.2d 41 (Fla.1973); Neal v. Bryant, 149 So.2d 529 (Fla.1962); Johnson v. State, 355 So.2d 857 (Fla. 3d D.C.A. 1978); In the Interest of J.W.H. v. State, 345 So.2d 871 (Fla. 1st D.C.A. 1977); White v. Means, 280 So.2d 20 (Fla. 1st D.C.A. 1973); Florida Tallow Corporation v. Bryan, 237 So.2d 308 (Fla. 4th D.C.A. 1970); United Bonding Insurance Company v. Tuggle, 216 So.2d 80 (Fla. 2d D.C.A. 1968); Headley v. State ex rel. Bethune, 166 So.2d 479 (Fla. 3d D.C.A. 1964). Indeed, the placing by the courts of strained or unusual meanings on ordinary words tends to engender suspicion and distrust of the very institution and those responsible for its stewardship, the Judges. We are therefore most reluctant to interpret the rule contrary to the obvious and usual meaning of the words employed by the Supreme Court in it promulgation.

However, it is prior decisions of the Supreme Court itself which leads to our difficulties. In Simmons v. State, 160 Fla. 626, 36 So.2d 207 (1948), our Supreme Court construed Chapter 22775, Section 1, Laws of Florida (1945), which amended Section 918.-10, Florida Statutes (1941), and which provided that a judge in his charge to the jury “must include in said charge the penalty fixed by law for the offense for which the accused is then on trial” as being merely directory and not mandatory. The court stated:

It will be observed that statute 918.10, in directing the court to charge upon the penalty, uses the word “must” rather than “may”. If the statute be interpreted as an unqualified mandate that the court in every criminal case include in the charge the penalty which might be imposed, rather than a mere grant of the privilege to so charge, it becomes an unreasonable infringement of the inherent power of the court to perform the judicial function because it burdens the court with doing an empty and meaningless act. Id. 36 So.2d at 208.

Thereafter, the Supreme Court adopted former Fla.R.Crim.P. 3.390(a), the verbiage of which was virtually identical to that of F.S. 918.10(1). That rule provided:

The presiding judge shall charge the jury only upon the law of the case at the conclusion of argument of counsel, and must include in said charge the penalty fixed by law for the offenses for which the accused is then on trial. (Emphasis supplied)

In Johnson v. State, 297 So.2d 35 (Fla.2d DCA 1974), cert. discharged 308 So.2d 38 (Fla.1975), the defendant had asserted that the court erred in denying his requested jury instructions on the penalty for the crime with which he was charged, arguing that the Supreme Court, with its right to dictate court procedure, by its adoption of Rule 3.390(a) had intended that the language of the rule be interpreted according to its “obvious” meaning. The Supreme Court relying on the Simmons decision, while acknowledging that it was at least partially based upon the separation of powers doctrine, concluded that the provisions of the Rule requiring an instruction on penalties was directory and not mandatory.

Accordingly, although Rule 3.390(a) has been amended since the Johnson decision and its progeny, in light of the previous judicial decisions construing the term “must” as “may”, we are hesitant to conclude that the rule, by use of the term “shall”, means what it says and is accordingly mandatory. We therefore affirm and hold that the trial court did not err in refusing to instruct the jury as to the maximum and minimum penalties.

In order to facilitate the Supreme Court's review of this decision, we certify that it passes on a question of great public interest. Article V, Section 3(b), Florida Constitution.

McCORD, C. J., and MILLS, J., concur.

        . See also, § 918.10(1), Fla.Stat. (1977).

      . See also, McBride v. State, 197 So.2d 850 (Fla. 1st D.C.A. 1967) and Holmes v. State, 181 So.2d 586 (Fla. 3d D.C.A. 1965).

      . See Johnson v. State, 308 So.2d 38 (Fla.1975). Accord, State v. Terry, 336 So.2d 65 (Fla.1976); Huckeba v. State, 322 So.2d 30 (Fla.1975); Lavatt v. State, 316 So.2d 261 (Fla.1975); Dorminey v. State, 314 So.2d 134 (Fla.1975); Winston v. State, 308 So.2d 40 (Fla.1975); Golson v. State, 353 So.2d 195 (Fla. 3d D.C.A. 1977); MacMainor v. State, 328 So.2d 264 (Fla. 1st D.C.A. 1976); Dowis v. State, 326 So.2d 196 (Fla. 4th D.C.A. 1976); Kelsey v. State, 317 So.2d 445 (Fla. 1st D.C.A. 1975); Howard v. State, 316 So.2d 654 (Fla. 3d D.C.A. 1975); Wheat v. State, 315 So.2d 203 (Fla. 1st D.C.A. 1975); Roper v. State, 315 So.2d 206 (Fla. 1st D.C.A. 1975); Beamon v. State, 314 So.2d 604 (Fla. 3d D.C.A. 1975); Sweet v. State, 313 So.2d 130 (Fla. 2d D.C.A. 1975); Pullman v. State, 311 So.2d 753 (Fla. 3d D.C.A. 1975); Gomez v. State, 309 So.2d 56 (Fla. 2d D.C.A. 1975); Cooper v. Wainwright, 308 So.2d 182 (Fla. 4th D.C.A. 1975); Ballard v. State, 307 So.2d 826 (Fla. 1st D.C.A. 1975); McIntyre v. State, 306 So.2d 160 (Fla. 4th D.C.A. 1975); Howard v. State, 306 So.2d 153 (Fla. 1st D.C.A. 1975); Boykin v. State, 305 So.2d 831 (Fla. 1st D.C.A. 1975).


text:
    WEST GATE SHOPPING CENTER, INC., Appellant, v. DIVISION OF ADMINISTRATION, STATE DEPARTMENT OF TRANSPORTATION, and Alachua County, Appellees.
    No. KK-318.
    District Court of Appeal of Florida, First District.
    Oct. 18, 1978.

      Elaine N. Duggar and James J. Richardson, Richardson Law Offices, P.A., Tallahassee, for appellant.
    Allen E. DeSerio, State’s Atty., Tallahassee, Edward L. Bush, Lake City, and H. Reynolds Sampson, Gen. Counsel, Tallahassee, for appellee Dept, of Transp.
   SMITH, Judge.

West Gate appeals from an order of taking in eminent domain, contending that the taking is excessive and unnecessary to the extent that the right of way will be used for a bicycle path on a narrow strip adjacent to the multilane highway. Chapter 74, Florida Statutes (1977). The record indicates that the Department proposes to build a pedestrian walkway on the same strip. The department is authorized to acquire land for public “ways open to travel by the public. . . .” Sections 337.-27(1), 334.03(7), Florida Statutes (1977). The Department thus is empowered to provide public ways for pedestrian and bicycle traffic as well as for automobiles. See also Section 335.065. The record reveals no error in the trial court’s decision that West Gate failed to demonstrate that the Department improperly exercised its statutory power.

AFFIRMED.

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


text:
    Franklin P. PHILLIPS, Appellant, v. UNITED SERVICES AUTOMOBILE ASSOCIATION, Appellee.
    No. 77-1924.
    District Court of Appeal of Florida, Second District.
    Oct. 18, 1978.
    David A. Maney of Gordon & Maney, and James W. Clark of Peavyhouse, Giglio, Grant, Clark & Charlton, Tampa, for appellant.
    Michael S. Rywant of Shackleford, Farri- or, Stallings & Evans, Tampa, for appellee.
   PER CURIAM.

Reversed on authority of Dewberry v. Auto-Owners Insurance Co., 363 So.2d 1077, No. 52,461 (Fla., filed September 7, 1978). See also Bryar v. Nationwide Mutual Fire Insurance Co., No. 52,769 (Fla., 1978), quashing 349 So.2d 1221 (Fla.2d DCA 1977).

BOARDMAN, Acting C. J., and SCHEB and DANAHY, JJ., concur.


text:
    GENERAL TELEPHONE COMPANY OF FLORIDA, Appellant, v. INTERNATIONAL BROTHERHOOD OF ELECTRICAL WORKERS, LOCAL UNION 824, AFL-CIO, and Angela J. McLaughlin, personal representative of the estate of Edward J. McLaughlin, Deceased, Appellees.
    No. 78-459.
    District Court of Appeal of Florida, Second District.
    Oct. 18, 1978.

      James F. Bell, Vice President-Gen. Counsel, Tampa, for appellant.
    Cary R. Singletary of Yanger & Single-tary, Tampa, for International Brotherhood of Electrical Workers, Local Union 824, AFL-CIO, appellee.
    Jerry H. Center of Cobbey, Jendrynski & Center, Clearwater, for Angela J. McLaughlin, appellee.
   PER CURIAM.

Upon review of the record, including the briefs filed by counsel for the respective parties, and consideration of oral arguments, we affirm the final judgment entered by the trial court. In doing so, we hold, as the trial court found, that the grievance is the proper subject to be submitted to arbitration. We do not consider or pass upon the merits of the grievance.

BOARDMAN, Acting C. J., and OTT and RYDER, JJ., concur.


text:
    Joe Ann YODER, Appellant, v. Tellas Odell YODER, Jr., Appellee.
    No. JJ-344.
    District Court of Appeal of Florida, First District.
    Oct. 19, 1978.
    Michael W. Mead of Middleton & Mead, Fort Walton Beach, for appellant.
    No appearance for appellee.
   PER CURIAM.

Joe Ann Yoder appeals from an order quashing service of process on Tellas Yoder in an action to enforce a Texas divorce decree. Appellant contends that the long arm statute permits personal service on the non-resident husband, subjecting him to the trial court’s jurisdiction. Section 48.-193(1)(e), Florida Statutes (1977). The trial court ruled that the long arm statute was inapplicable and that the court could not establish a monetary decree against the defendant without his appearing or answering or returning to Florida. We agree with the trial court and affirm.

Appellant filed suit to establish the Texas divorce decree as a Florida judgment, adjudicate the current amount of alimony ar-rearage due, and enforce the decree through any means available for the enforcement of a Florida judgment. The ap-pellee was personally served in Nevada pursuant to Section 48.194, Florida Statutes (1977), but he has never entered an appearance in this action. The parties lived in Florida while appellee was in the military service from 1969 to 1972. Appellant argued that these three years of residency were sufficient to satisfy the minimal contact requirements of the long arm statute. However, the statute is clearly inapplicable for another reason.

Section 48.193(l)(e) states:

48.193 Acts subjecting persons to jurisdiction of courts of state.—
(1) Any person, whether or not a citizen or resident of this state, who personally or through an agent does any of the acts enumerated in this subsection thereby submits that person and, if he is a natural person, his personal representative to the jurisdiction of the courts of this state for any cause of action arising from the doing of any of the following:
(e) With respect to proceedings for alimony, child support, or division of property in connection with an action to dissolve a marriage or with respect to an independent action for support of dependents, maintains a matrimonial domicile in this state at the time of the commencement of this action or, if the defendant resided in this state preceding the commencement of the action, whether cohabiting during that time or not. This paragraph does not change the residency requirements for filing an action for dissolution of marriage.

Jurisdiction cannot be obtained over ap-pellee because the action to establish the Texas decree is neither an action to dissolve a marriage nor is it an independent action for support of dependents.

Accordingly, the order quashing service of process on appellee is AFFIRMED.

• SMITH, Acting C. J., ERVIN, J., and MASON, ERNEST E., Associate Judge, concur.


text:
    Charles Anthony CAPO, Appellant, v. STATE of Florida, Appellee.
    No. JJ-449.
    District Court of Appeal of Florida, First District.
    Oct. 19, 1978.
    Charles Anthony Capo, in pro. per., for appellant.
    No appearance for appellee.
   PER CURIAM.

Appellant seeks review of the summary denial of his motion to vacate, set aside or correct the judgment of conviction for battery of a law enforcement officer (Fla.R. Crim.P. 3.850). We agree with the trial court’s conclusion that the allegations in the motion were insufficient to entitle appellant to an evidentiary hearing. Appellant’s assertion that he was entitled to relief because of the alleged incompetency of his privately retained counsel is without merit. Such contention does not set forth a ground for post-conviction relief. See Cappetta v. Wainwright, 203 So.2d 609 (Fla.1967); Harden v. State, 352 So.2d 576 (Fla. 1st DCA 1977); Crespo v. State, 339 So.2d 697 (Fla. 3d DCA 1976). Similarly, appellant’s contention that the trial judge was biased against him was insufficient to require an evidentiary hearing. See Wilson v. Renfroe, 91 So.2d 857 (Fla.1956). Accordingly, the order appealed from is AFFIRMED.

SMITH, Acting C. J., ERVIN, J. and MASON, ERNEST E., Associate Judge, concur.


text:
    James Edward GRAYES, Appellant, v. STATE of Florida, Appellee.
    No. 76-1570.
    District Court of Appeal of Florida, Second District.
    Oct. 20, 1978.
    Jack 0. Johnson, Public Defender, and Thomas A. McDonald, Asst. Public Defender, Bartow, for appellant.
    Robert L. Shevin, Atty. Gen., Tallahassee, and Robert J. Landry, Tampa, for appellee.
   PER CURIAM.

It appears that the notice of appeal is untimely filed, and therefore, the court is without jurisdiction.

DISMISSED, sua sponte.

HOBSON, Acting C. J., and BOARD-MAN and SCHEB, JJ., concur.


text:
    Arthur N. EGGERS, Appellant, v. PINELLAS COUNTY, a political subdivision of the State of Florida, and the State of Florida, Appellees.
    No. 78-675.
    District Court of Appeal of Florida, Second District.
    Oct. 20, 1978.
    Arthur N. Eggers, of Eggers & Timmer-man, Tampa, for appellant.
    Robert L. Shevin, Atty. Gen., Tallahassee, and Robert J. Landry, Asst. Atty. Gen., Tampa, for appellee State of Florida.
    Scott L. Knox, Asst. County Atty., Clear-water, for appellee Pinellas County.
   PER CURIAM.

Affirmed. See Gant v. State, 216 So.2d 44 (Fla. 1st DCA 1968).

GRIMES, C. J., and HOBSON and DAN-AHY, JJ., concur.