author: SUNDBERG, Justice.

text:
    FLORIDA RETAIL FEDERATION, INC., a Florida Corporation not for profit, Petitioner, v. William T. MAYO et al., Respondents.
    No. 48194.
    Supreme Court of Florida.
    April 14, 1976.

      George B. Stallings, Jr., Jacksonville, for petitioner.
    William L. Weeks, Prentice P. Pruitt and Donald R. Alexander, Tallahassee, for the Florida Public Service Commission.
    Hugh C. Macfarlane of Macfarlane, Ferguson, Allison & Kelly, James F. Bell, Tampa, and John Robert Jones, Columbus, Ohio, for Gen. Tel. Co., of Fla.
   SUNDBERG, Justice.

This matter is before us on petition for writ of certiorari to the Florida Public Service Commission. Petitioner seeks to have reviewed certain portions of Order No. 6832 issued by the Florida Public Service Commission (Commission) on August 11, 1975. This order was reaffirmed in all respects by Order No. 6950, which denied rehearing on the earlier order and was entered on October 7, 1975.

On December 2, 1974, Respondent General Telephone Company of Florida (General) filed with the Commission its petition for intrastate rate relief under Section 364.05, Florida Statutes. The petition asked for an allowance of some $73.8 million in additional annual gross intrastate operating revenue and to make permanent the new rate schedules designed to effectuate that increase.

Petitioner, a non-profit corporation representing retail establishments which are customers of General, moved to intervene on June 17, 1975, which was within seven days of the commencement of the hearing for cross-examination. The petition was granted. Petitioner did not attack the rate base or rate of return suggested by General but challenged only its proposed rate structure. Petitioner’s principal contention was that the “value of service” principle on which that structure was based is arbitrary, unfair, and generally less desirable as a rate-making basis than a system based on “cost of service” as the principal criterion. (Essentially, “value of service” seeks to apportion rates in such a way that those phone users who receive most commercial benefit from use of the telephone pay a higher rate than would be charged them if tariffs were assessed on the basis of what it actually cost General to maintain a given type of service. Retailers are obviously among those whose rates are higher under a “value of service” system than under “cost of service.”) Charging General with forcing commercial customers to pay a disproportionate share of total system revenues, petitioner concluded by attacking (1) the relative usage ratios (or rate differentials) formulated by General between certain customer classes and (2) the lack of evidence adduced to support the specific value of service relationships upon which rates were based.

After the public hearings, testimony and argument were concluded, on August 11, 1975, respondent Commission issued its Order No. 6832, which, inter alia, granted General’s petition in part, consenting to rate schedules designed to generate $46,614,000, and ordered General to file such revised schedules consistent with the relief allowed. As indicated above, petitioner’s request for rehearing was denied in Order No. 6950 dated October 7, 1975.

Petitioner basically asserts that (i) the Commission denied the petitioner procedural due process of law by failing to comply with certain procedural requirements allegedly imposed by Chapter 120, Florida Statutes, enacted by Chapter 74-310, Laws of Florida 1974, as amended by Chapter 75-191, Laws of Florida 1975; and (ii) the Commission acted unlawfully in approving a rate structure based upon the proposal submitted by General. This second issue is subdivided by petitioner into two arguments. The first is that the Commission erred in its reliance upon a Traffic Usage Study submitted by General in compliance with the Minimum Filing Requirements of the Commission. Second, it is argued that the Commission erred in failing to include a “cost of service” factor or criterion in developing the rate structure as opposed to “value of service” and relationship of rates criteria. For the reasons hereinafter stated, we conclude that the Commission neither denied petitioner procedural due process of law nor failed to comply with the requirements of law in rejecting the “cost of service” principle as a necessary criterion in adopting the rate structure.

With respect to the procedural due process issue the Commission contends and we agree that the provisions of Chapter 120, Florida Statutes, relied upon by petitioner were not applicable to this proceeding. In 1974 the Legislature revised Chapter 120 through the enactment of Chapter 74-310, Laws of Florida. Section 3 of that enactment provides in pertinent part:

“(2) All administrative adjudicative proceedings begun prior to the effective date of this act shall be continued to a conclusion under the provisions of the Florida Statutes, 1973; except that administrative adjudicatory proceedings which have not progressed to the stage of a hearing may, with the consent of all parties and the agency conducting the proceeding, be conducted in accordance with the provisions of this act as nearly as is feasible.”

Section 6 of Chapter 74-310, Laws of Florida, established the effective date for the various provisions of the act as follows :

“Section 6. Sections 120.54(9) and 120.65, Florida Statutes, and section 2 of this act shall take effect October 1, 1974. The remainder of this act shall take effect January 1, 1975.”

The sections of Chapter 120, Florida Statutes, relied upon by petitioner all fall within the category specified to take effect January 1, 1975.

The proceedings herein were begun on December 2, 1974, and proceeded to a conclusion pursuant to the provisions of Chapter 120, Florida Statutes 1973. Our review of the record reflects no consent by the parties or the Commission to conduct the proceedings in accordance with the Administrative Procedure Act as enacted by Chapter 74-310, Laws of Florida, and amended by Chapter 75-191, Laws of Florida. Our review of the procedures utilized by the Commission in the instant case satisfies us that petitioner was accorded procedural due process under the law applicable to the proceedings.

Turning now to the substantive issues raised by petitioner, we commence our task by noting that in a proceeding such as this the burden is upon the petitioner to establish that the order of the Commission under attack is invalid, arbitrary, or unsupported by the evidence. Shevin v. Yarborough, 274 So.2d 505 (Fla.1973); City of Miami v. Fla. Public Service Comm’n, 208 So.2d 249 (Fla.1968); Fogarty Bros. Transfer, Inc. v. Boyd, 109 So.2d 883 (Fla.1959). Relying upon certain testimony of one of General’s witnesses (Mr. E. E. Wilson, who is responsible for operations for General) at page 2579 of the transcript, petitioner attacks the statistical reliability of a Traffic Usage Study made by General in compliance with the Minimum Filing Requirements of the Commission. It is asserted that Mr. Wilson’s testimony invalidates the Traffic Usage Study in that it indicates that the usage ratio developed therein between different classes of service was measured on inconsistent bases; i. e., calling volume in one group was measured only by outward calls, a second group by inward calls and the third group by inward and outward calls. General takes exception to the inference drawn by petitioner from the testimony, maintaining that Mr. Wilson inaccurately stated the method of measurement through confusion. More importantly, however, General points out that the testimony of W. G. Marks, Jr., the rate design witness for General, reflected that the Traffic Usage Study was based upon the total usage of the line, a method which encompasses both incoming and outgoing calls as to each class of service. General submits that the testimony of Mr. Marks should be given greater weight because he was the individual responsible for the rate design. We have here then, at best, a conflict in the evidence—a matter which it is the responsibility by law for the Commission to resolve. If there is competent substantial evidence to support the Commission’s conclusion with respect to the reliability of the Traffic Usage Study, then this Court will not re-evaluate the evidence upon review of the Commission’s order even though we might come to a contrary conclusion if we were to engage in such re-evaluation. Our function in this regard is concisely stated in General Tel. Co. v. Carter, 115 So.2d 554, 557 (Fla.1959), where Mr. Justice Hobson stated:

“. . . On certiorari this Court will not undertake to re-weigh or re-evaluate the evidence presented to the administrative body whose order is under examination. Our duty is to examine the record to determine whether the Commission’s order is in accord with the essential requirements of law and whether the agency had before it competent substantial evidence to support its findings and conclusions.” (footnote omitted)

Petitioner next posits that the Order of the Commission fails to comply with law because the Commission relied merely upon the “value of service” and the relationship of rates as the primary tools in setting the business telephone rates of which petitioner complains and omitted as an essential criterion the “cost of service” provided. Petitioner asserts that Section 364.03, Florida Statutes, requires that all rates, tolls and charges of telephoné companies in Florida for services rendered “shall be fair, just, reasonable and sufficient." It is argued that a rate structure designed without reference to “cost of service” cannot meet the requirement of sufficiency as mandated by the statute. Petitioner supports its argument by reference to a text and to the orders of the regulatory agencies of various other jurisdictions. Unquestionably these authorities indicate that “cost of service” is to be considered as an essential element in designing a rate structure. Respondents counter with the argument that the approach adopted by regulatory authorities in other states is neither compelling nor binding upon the Florida Public Service Commission. They cite Garfield and Lovejoy, Public Utility Economics (1964) as being exactly contrary to the conclusion reached by Bonbright and point out that petitioner fails to cite any judicial decision of another state which concludes that it is error to fail to consider “cost of service” as an essential element. In fact, respondents cite Globe Metallurgical Div. v. Public Util. Comm’n, 40 Ohio St.2d 40, 319 N.E.2d 360 (1974), as authority for the proposition that where there is no statutory requirement necessitating that a state public service commission make “cost of service” determinations relative to specific rate classifications, failure to make such findings is not error. Respondents point to the fact that although there is no reference in the Florida Statutes to a “cost of service” factor, Section 366.041(1), Florida Statutes, explicitly authorizes the Commission to give consideration, inter alia, to “the value of such service to the public.” They add that, in fact, although “cost of service” was not computed with mathematical precision with respect to a particular class or grade of service, nonetheless testimony of Mr. Marks indicates that “relative cost considerations of providing service” were taken into account in designing the rate structure.

It is our view, based upon the authorities cited herein with respect to our function in reviewing an order of the Commission, that petitioner has not met the burden incumbent upon it of showing that such order is “invalid, arbitrary, or unsupported by the evidence.” Obviously, there is a divergence of expert opinion as to the policy of including “cost of service” as an essential element in designing a rate structure. Even were we persuaded to one policy or the other (“cost of service” or “value of service” as the essential element) it is not our prerogative to impose that policy upon the Commission. So long as the policy adopted by the Commission comports with the essential requirements of law we may not meddle. The Legislature has reposed in the Commission the responsibility to make just the kind of choice between competing policies in its area of expertise as it has done here. Shevin v. Yarborough, supra.

Accordingly, the petition for writ of cer-tiorari is denied.

It is so ordered.

OVERTON, C. J., and ROBERTS, BOYD and HATCHETT, JJ., concur.

      . Order No. 6950 reads in pertinent part:
      “By Order No. 6832, dated August 11, 1975, we granted in part the Petition of General Telephone Company of Florida and authorized it to increase its rates and charges in the amount of $46,614,000. Thereafter, Florida Retail Federation (FRF), an inter-venor in this proceeding, filed a Petition for Rehearing of Order No. 6832 in which it questions the tariff revisions required by Order No. 6832. Oral argument on the Petition was heard by the Commission on September 8, 1975, in Tallahassee, Florida. After considering said Petition, the record herein, and argument of counsel, we find the Petition to be without merit and the same should be denied.
      “Basically, Petitioner contends the rate schedules, as revised, are unjust and unreasonable as they relate to business customers. Specifically, FRF questions the rotary line differential of 1.4 times the business one-party rate and the private branch exchange trunk differential of 2 times the business one-party rate and the use of value of service as a tool in designing said rates. We cannot agree that the use of this factor in designing business telephone rates is improper. This question was presented to the Supreme Court of Florida and the proposition rejected in the case of State v. Bevis, 283 So.2d 348 (Fla.1973). There, the Court approved our use of the value of service and the relationship of rates as the primary tools in setting certain business telephone rates. The Petitioner has also questioned the statistical reliability of the traffic study conducted by the Company as required by the Minimum Filing Requirements. . . . FRF contends the Company failed to measure all classes of service uniformly and thus relied upon statistically unsound methods to derive its rotary and PBX trunk differentials. We cannot agree that the study presented by the Company fails to reasonably measure the usage necessary to develop reasonable and just business rates (see, for example, TR 2331 et seq). The rates which we have approved result, in our opinion, in fair, just reasonable and sufficient rates as required by Chapter 364, Florida Statutes. We find, then, the Petition for Rehearing of Order No. 6832 to be without merit and the same should be denied. ...”

      . Bonbright, Principies of Public Utility Rates (1961).

      . E. g., Re Pacific Tel. & Tel. Co., 77 P.U.R. 3d 1 (Cal.Pub.Util.Comm’n 1968) ; Re Mountain States Tel. & Tel. Co., Opinion filed January 12, 1976, Order No. 3274(C) (N.Mex.St.Corp.Comm’n) ; Re Mountain States Tel. & Tel. Co., 2 P.U.R. 4th 332 (N.Mex.St.Corp.Comm’n 1973) ; Re New England Tel. & Tel. Co., 94 P.U.R.3d 476 (R.I.Pub.Util.Comm’n 1972) ; Re New England Tel. & Tel. Co., 99 P.U.R.36 309 (Vt.Pub.Serv.Bd.1973).


source: Caselaw Access Project

license: Public Domain

text:
    STATE of Florida, Petitioner, v. Eartha Lee GRIFFITH, Respondent.
    No. 47137.
    Supreme Court of Florida.
    April 14, 1976.
    Robert L. Shevin, Atty. Gen., and Stephen R. Koons, Asst. Atty. Gen., for petitioner.
    Richard L. Jorandby, Public Defender, and Richard S. Power, Asst. Public Defender, for respondent.
   SUNDBERG, Justice.

We review by certiorari a decision of the Fourth District Court of Appeal, reported at 309 So.2d 252.

Respondent Eartha Lee Griffith entered a plea of guilty to a charge of second degree murder in the Circuit Court in and for Orange County on May 25, 1972. Adjudication of guilt and imposition of sentence were withheld, and she was placed on probation for a period of ten years.

In August, 1973, an affidavit of violation of probation was taken before the Circuit Court for Orange County and an arrest warrant was issued for the respondent. The affiant, Griffith’s probation officer, charged that respondent had violated three conditions of her probation: (1) she had been unemployed for nearly twelve months; (2) she had failed to follow instructions from the affiant that she appear on several occasions at the probation supervisor’s office and also she had failed on several occasions to submit a daily list of three prospective employers; and (3) she had fallen behind in paying court costs and fees related to her defense to the murder charge. Griffith was taken into custody on August 9, 1973, upon the warrant supported by affidavit and was arraigned the following day. After hearing, an order of revocation was entered on October 25, 1973, and Griffith was thereafter found guilty of murder in the second degree and duly sentenced.

Contending that Morrissey v. Brewer, 408 U.S. 471, 92 S.Ct. 2593, 33 L.Ed.2d 484 (1972), and Gagnon v. Scarpelli, 411 U.S. 778, 93 S.Ct. 1756, 36 L.Ed.2d 656 (1973), required a preliminary hearing before a second hearing at which probation was revoked, respondent appealed to the Fourth District Court of Appeal. With one judge dissenting, that court reversed the order of probation revocation and stated, “This constitutes a denial of due process with the consequence being that appellant’s probation must be reinstated.” The dissenting opinion argued that the majority’s decision conflicted with the earlier pronouncement of that District Court of Appeal in Singletary v. State, 290 So.2d 116 (4th D.C.A.Fla.1974), cert. dismissed, 293 So.2d 361 (Fla.1974). It was through that conflict of decisions that the jurisdiction of this Court was invoked. Art. V, § 3(b)(3), Fla.Const.

In Singletary, supra, the court set out the various methods by which probationers may be arrested and detained for revocation hearings:

“In Florida there are three separate procedures for arresting and holding a probationer as prelude to a probation revocation hearing. First, F.S. Section 948.06, F.S.A., authorizes any probation supervisor, upon reasonable ground to believe a violation has occurred, to arrest a probationer without a warrant, and forthwith return him to the court granting probation. This is rarely, if ever, done. The second and most usual way that revocation proceedings are commenced in Florida is by an affidavit being presented to a committing magistrate, who, after finding from it and other proof presented, that there is reasonable ground to believe the probationer has violated his probation in a material respect, issues a special arrest warrant. The judge issuing the warrant can endorse thereon the amount of bail, if any. The probationer, when arrested, is either taken forthwith before the court granting such probation, to whom the warrant is returnable, or, pursuant to RCrP Rule 3.130(b)(1), 33 F.S.A., he is taken before a judical officer, a County Judge, within 24 hours of his arrest, for a First Appearance hearing where the County Judge, as magistrate, immediately informs him of the nature and cause of the accusation against him and provides him with a copy thereof [RCrP Rule 3.130(b)(2)]. He is advised of his right against self-incrimination, and that means will be provided for him to communicate with his counsel, his family, or his friends. Counsel is then appointed for him if he desires, but is financially unable to afford, counsel. In some judicial circuits, the the magistrate considers admitting the accused probationer to bail or releasing him on his own recognizance, while in other circuits, if the probation was granted in the' Circuit Court, the County Judge does not set bail but forthwith binds the accused over for further proceedings before ‘the court granting such probation’, where the Circuit Judge, as arraignment procedure, again advises the accused of the charge and advises him he is entitled ‘to be fully heard on his own behalf in person or by counsel.’ If the violation is not admitted, the Circuit Judge considers releasing him from confinement with or without bail and sets a final hearing ‘as soon as may be practicable’. A third probation violation procedure was provided by the passage in 1972 of F.S. Section 949.10-949.12, F.S.A., which provides for an automatic bailess temporary revocation when a person on probation as to a felony is arrested on a subsequent felony charge. The statute specifically requires a revocation hearing within 10 days, otherwise the probationer is immediately released from incarceration on the temporary revocation.”

(Footnotes omitted)

Eartha Griffith was detained under the usual affidavit-judicial warrant procedure described above. She argued successfully before the District Court of Appeal that this procedure violates minimal constitutional standards for revocation hearings imposed by Morrissey and Gagnon, supra. In these two landmark cases, the United States Supreme Court found the procedures by which Iowa revoked parole (Morrissey) and Wisconsin revoked probation (Gagnon) to be constitutionally deficient. Neither state had laws requiring any hearing before probationary status was removed, let alone an initial informal hearing to determine the existence of probable cause to believe the parolee or probationer had violated his agreement with the state. It is this minimal preliminary hearing which these decisions found necessary to bring the Iowa and Wisconsin procedures up to constitutional standards. Such a hearing may be held before any “neutral and detached” board or official other than the individual recommending probation. Morrissey, supra.

We believe that the Florida procedure as exercised in the instant case provides sufficient due process safeguards to render unnecessary an additional preliminary hearing. Eartha Griffith’s probation officer executed an affidavit and jurat detailing the probationary conditions which she believed had been violated; a warrant was issued by a “neutral and detached” magistrate, a circuit judge; Griffith was arrested and arraigned before a judicial officer; and a revocation hearing was held at which respondent was represented by counsel and permitted to call and cross-examine witnesses. At no time did Griffith demand a preliminary hearing. It is difficult to discern how her rights were prejudiced by failure to give her such a hearing. In fact, near the end of the revocation hearing, the circuit judge commented :

“This Court has spent more time in dealing with the probation of this woman, the prospective probation and this violation, than in all of the other sentencings of all the other criminal defendants that I have ever dealt with. ...”

We expressly adopt the holding of Single-tary, supra, from which the District Court of Appeal erroneously departed in the instant case:

“Morrissey and Gagnon prescribe a minimal constitutional due process hearing for states that require no hearing before parole and probation is revoked and do not relate to Florida, which is recognized in Morrissey, Footnote 15, as being one of thirty states requiring hearings before revocation. Florida in arresting a probationer upon warrant issued by a judicial officer upon probable cause, supported by affidavit, has adopted a procedure similar to that provided by both the state and federal constitutions for the search and seizure and arrest of free unrestricted citizens. A probationer cannot be entitled to more. We hold that Florida’s usual judicial warrant procedure is constitutionally equal or superior to the first ‘minimal inquiry’ promulgated in Morrissey. Both are safeguards against the probationer being arbitrarily and unfairly deprived of his conditional liberty by arrest on unverified facts and confinement pending a revocation hearing. The court in Morrissey insisted it had no thought to create a formal or inflexible structure for revocation procedures.” (Footnote omitted)

We are not unmindful that respondent spent 78 days in jail between the time of her arrest and the date of her probation revocation hearing. Rule 3.131(b), Fla.R. Cr.P., establishes the right to an adversary preliminary hearing if no formal charge has been made within 21 days of the arrest, and respondent contends that incarcerated probationers should have an identical right. See In re Florida Rules of Criminal Procedure, 309 So.2d 544 (Fla.1975). But even if this proposition were accepted as true, there is no showing that Griffith asked for such a hearing. What respondent seems to be arguing for is a speedy trial rule in revocation proceedings rather than the existence of a specific deficiency in current preliminary hearing procedures. Oaks v. Wainwright, 305 So.2d 1 (Fla.1974), is cited as authority in this regard. In Oaks, this Court held that there should have been a preliminary hearing when the revocation hearing occurred more than two months after the petitioner’s arrest. However, that case involved a parole revocation, in which the arrest warrant was issued by the Parole and Probation Commission without the intervention of any judicial officer, and thus Morrissey’s strictures must apply. Like Morrissey and Scarpelli (who, in accordance with Wisconsin’s probationary practice, had been sentenced to prison before the sentence was suspended conditional upon his compliance with probation conditions as determined by an administrative board), Oaks had, of course, been sentenced. In Florida, the trial judge does not pronounce and impose a sentence of imprisonment upon a defendant who is to be placed on probation, except in the special county jail split-sentence procedure described in Section 948.01 (4), Florida Statutes.

In the instant case, as in Singletary, the warrant was issued by a “neutral and detached” magistrate, and so the problem of the same body’s both determining the existence of probable cause and prosecuting thereon does not arise. Furthermore, the conclusion of this Court in Oaks that the petitioner’s due process rights were violated was based at least in part on a 101-day delay in the State’s return to Oaks’ petition for writ of habeas corpus, a circumstance which we do not find sub judice.

The United States Supreme Court has recently held that, while a person arrested without a warrent is entitled to a timely judicial determination of probable cause, such cause for arrest may be determined without an adversary hearing and on the basis of hearsay and written testimony. Gerstein v. Pugh, 420 U.S. 103, 95 S.Ct. 854, 43 L.Ed.2d 54 (1975). Surely the constitutional standard can be no higher for one who, like respondent, is a probationer arrested by the requisite warrant.

Accordingly, the writ of certiorari is granted and the decision of the District Court of Appeal is quashed with directions to remand the cause to the trial court for reinstatement of the judgment and sentence of that court.

ADKINS, Acting C. J., and ENGLAND, J., and TYRIE A. BOYER, District Judge, concur.

HATCHETT, J., dissents.

      . Fla.R.Cr.P. 3.790(a).


author: PER CURIAM.

text:
    STATE of Florida, Petitioner, v. Charles Lewis RAY, Jr., a/k/a Charles L. Ray, Respondent.
    No. 48246.
    Supreme Court of Florida.
    April 21, 1976.

      Robert L. Shevin, Atty. Gen., and Robert J. Landry, Asst. Atty. Gen., for petitioner.
    Jack O. Johnson, Public Defender, and Douglas A. Wallace, Asst. Public Defender, for respondent.
   PER CURIAM.

This is a petition for writ of certiorari to review a decision of the District Court of Appeal, Second District, reported at 320 So.2d 426, because of an asserted conflict with the decisions of this Court in Jenkins v. Wainwright, 322 So.2d 477 (Fla.1975), and Estevez v. State, 313 So.2d 692 (Fla.1975). Jurisdiction is provided under Article V, Section 3(b)(3), Florida Constitution.

In the case under review the trial court entered judgments, upon guilty pleas, for sexual battery, attempted sexual battery and breaking and entering a dwelling house with intent to commit a felony, to-wit: sexual battery, and, after having entered, making an assault upon a woman lawfully within the dwelling house. The event which was the subject of the judgment for sexual battery occurred on a date separate from the event giving rise to the other two judgments. The trial judge sentenced the defendant to 15 years for the sexual battery. Concurrent five-year sentences were imposed for the other two offenses to run consecutive to the 15-year sentence.

While affirming all three judgments the District Court ordered that the sentence for attempted sexual battery be vacated as violating the single transaction rule. It held that “the attempted sexual battery for which the appellant was convicted was an essential element of the breaking and entering charge.” In Jenkins, supra, this Court upheld the imposition of separate sentences for possession of cannabis sativa and possession of an hallucinogenic drug even though the defendant was found in possession of the two separate drug substances on the same occasion. In Estevez, supra, we held that “breaking and entering and grand larceny are separate offenses, not facets of the same transaction, and that two separate sentences may be imposed upon conviction of the two offenses.” The convictions in Estevez grew out of a single occurrence.

To resolve the apparent conflict between Jenkins and Estevez and the decision here reviewed we granted the petition for writ of certiorari and dispensed with oral argument. After a careful review of the briefs submitted by the parties, we conclude that the decision in the instant case conflicts with the principles enunciated in Jenkins and Estevez. We are persuaded that these cases represent the proper rule of law applicable to the case at bar. See also Slater v. State, 316 So.2d 539 (Fla.1975). Accordingly, that portion of the decision of the District Court which vacates the sentence for attempted sexual battery is quashed with directions to remand to the trial court for reinstatement of the original sentence.

It is so ordered.

OVERTON, C. J., and ADKINS, ENGLAND, SUNDBERG and HATCHETT, JJ., concur.


text:
    Lavern W. QUANDT, d/b/a Fisherman’s Restaurant, Appellant, v. Queen MONROE and Seaboard Equipment Company, Inc., a Florida Corporation, Appellees.
    No. 75-1351.
    District Court of Appeal of Florida, Fourth District.
    April 30, 1976.
    Edna L. Caruso, of Howell, Kirby, Montgomery, D’Aiuto and Dean, West Palm Beach, for appellant.
    Michael Jeffries, of Neill, Griffin, Jef-fries & Lloyd, Fort Pierce, for appellee, Seaboard Equipment Co., Inc.
   PER CURIAM.

The trial court erred in dismissing the third party complaint because a third party plaintiff is no longer bound by the allegations of plaintiff’s complaint characterizing the negligence. Pompano Beach Hotel Corporation v. Harker, Fla.App., 328 So.2d 468, Opinion issued March 5, 1976; Crawford Door Sales Company v. Donahue, 321 So.2d 624 (Fla.App.2d 1975); Central Truck Lines Inc. v. White Motor Corporation, 316 So.2d 579 (Fla.App.3d 1975); Gacl, Inc. v. Riviera Tile and Terrazzo Company, 300 So.2d 39 (Fla.App.3rd 1974).

Reversed and remanded with instructions to reinstate.

REVERSED AND REMANDED.

WALDEN, C. J., DOWNEY, J., and MELVIN, WOODROW M., Associate Judge, concur.


text:
    CHICAGO INSURANCE COMPANY, Petitioner, v. Paul SHEEHAN et al., Respondents.
    No. 75-2144.
    District Court of Appeal of Florida, Fourth District.
    April 30, 1976.
    Thomas F. Gustafson, Gerald M. Walsh and Associates, Fort Lauderdale, for petitioner.
    Jerald C. Cantor, Meyer, Leben, Fixel, Cantor & Engelberg, Hollywood, for respondent-Quality Pest Control, Inc.
   PER CURIAM.

We have considered the petition for writ of certiorari and the briefs of counsel and fail to find that the circuit court exceeded its jurisdiction or that it departed from the essential requirements of law.

Accordingly, the petition for writ of cer-tiorari is DENIED.

WALDEN, C. J., and OWEN and DOWNEY, JJ., concur.


author: HOBSON, Judge.

text:
    ALLIED VAN LINES, INC., et al., Appellants, v. Roberta McKNAB, Appellee.
    No. 74-1042.
    District Court of Appeal of Florida, Second District.
    April 30, 1976.
    Rehearing Denied May 25, 1976.
    Arnold R. Ginsberg of Horton, Perse & Ginsberg and Hawkesworth, Kay & Schmick, Miami, for appellants.
    Michael R. N. McDonnell of Schryver & McDonnell, Naples, for appellee.
   HOBSON, Judge.

Defendants-appellants appeal a final judgment in an action to recover damages for the loss of goods of the plaintiff-appel-lee.

Plaintiff filed a complaint for damages wherein she alleged that she had contracted with the defendant Allied to have her furniture and other household belongings transported from California to Naples, Florida. When the goods arrived in Naples, the plaintiff had not found a permanent place to live and the goods were stored in a warehouse of defendant Verna E. Pearman, d/b/a Fred’s Moving and Storage, an agent of the defendant Allied. All the goods were destroyed by a fire while stored in the warehouse.

The first two points on appeal have been considered and we find competent, substantial evidence to support the plaintiff’s position. Brannon v. Smith Dray Line & Storage Company, 6th Cir. 1972, 456 F.2d 260.

The remaining point relates to the value of the destroyed personal goods. The plaintiff testified as to the original cost of the items and further related that the value of the items at the time of their destruction was greater than the original purchase price. She further testified that the total value of the goods was $35,315, which was the exact amount of the final judgment.

We find it inconceivable that household goods, some of which were 20 years old and none of which were brand new, could- increase in value from their original cost. This testimony as to the value of the destroyed items is not competent, substantial evidence which accords with logic and reason. In measuring plaintiff’s damages, the proper measure of damages for loss of personal property is its market value on the date of the loss. Allstates Van Lines Corp. v. Lebenstein, Fla.App.3d 1974, 303 So.2d 33; Hillside Van Lines, Inc. v. Matalon, Fla.App.3d 1974, 297 So.2d 848; and McDonald Air Conditioning, Inc. v. John Brown, Inc., Fla.App.4th 1973, 285 So.2d 697.

For the foregoing reasons, the judgment is reversed and the cause remanded for a new trial on damages only.

McNULTY, C. J., and BOARDMAN, J., concur.


text:
    STATE of Florida, Appellant, v. Iman CROSS, a/k/a Inman Cross, Appellee.
    No. 75-2239.
    District Court of Appeal of Florida, Fourth District.
    April 30, 1976.
    Philip S. Shailer, State’s Atty., and Jon H. Gutmacher, Asst. State’s Atty., Fort Lauderdale, for appellant.
    Richard L. Jorandby, Public Defender, and James R. Bean, III, Asst. Public Defender, West Palm Beach, for appellee.
   PER CURIAM.

After carefully reviewing the briefs, record and testimony from the suppression hearing, we hold that the trial court erred in granting defendant’s motion to suppress, as the police officer had reasonable grounds to believe defendant was committing a crime, Fla.Stat. § 901.151 (1975); Thomas v. State, 250 So.2d 15 (Fla.App. 1st 1971).

REVERSED AND REMANDED.

WALDEN, C. J., and CROSS and MA-GER, JJ., concur.


author: MILLS, Judge.

text:
    P. K. DAVIS and Insurance Company of North America, Appellants (Defendants), v. Howell G. LEWIS and Ruby Lewis, his wife, Appellees (Plaintiffs).
    No. W-343.
    District Court of Appeal of Florida, First District.
    March 30, 1976.
    Rehearing Denied May 21, 1976.

      Edgar C. Booth and Anne C. Booth, of Hall & Booth, Tallahassee, for appellants.
    W. Dexter Douglass of Douglass & Powell, Tallahassee, for appellees.
   MILLS, Judge.

The defendants appeal from a final judgment in favor of the plaintiffs following a jury trial in a personal injury action.

The defendants contend that the trial court erred in the following respects:

1. by refusing to allow the defendants to amend their answer,

2. by dismissing the defendants’ third party complaint,

3. by refusing to submit a special verdict to the jury,

4. by refusing to give certain jury instructions requested by the defendants,

5. by refusing the jury’s request for instruction on the law governing loads that project beyond the rear of a vehicle,

6. by repeating instructions favorable to the plaintiffs,

7. by denying defendants’ motion for a directed verdict and motion to set aside the verdict on the ground that no negligence was shown on the part of the defendant Davis, and

8. by refusing to grant a new trial to the defendants, because of improper and prejudicial remarks made by plaintiffs’ attorney during his voir dire examination and closing argument.

Lewis, supervisor of the Florida State University maintenance yard, sued Davis, driver of a City of Tallahassee garbage truck, and the City’s liability insurance company for personal injuries received by him when the truck driven by Davis hit a pipe which projected beyond the rear of a parked F.S.U. maintenance pickup truck, knocking the pipe onto Lewis’ head. At the time of his injury, Lewis was standing beside the maintenance truck which was properly parked in a parking space at the maintenance yard. Mrs. Lewis sued for damages which she sustained because of her husband’s injuries.

The bed of the pickup truck had been extended by welding the tailgate down. A rack had been constructed above the truck, 6 and j4 feet above ground level. The pipe had been placed on the rack by two university maintenance employees. Less than 4 feet of the pipe projected into the traffic area of the maintenance yard.

The maintenance yard is enclosed by a fence. There are two entrances to the yard which are closed at night. During the day the gates are open, and the area is used by the public for vehicular travel. The traffic area is bounded by sidewalks and marked parking spaces. The speed limit is 10 miles per hour.

The accident happened at about 7:30 A.M. on a morning that was hazy but visibility was good. As Davis drove through one gate and approached the accident scene, a laundry truck drove through the other gate and approached from the opposite direction. Davis kept to the right so that the oncoming truck would pass and he could exit through the gate from where the truck had entered. The right area of the loading arm of the garbage truck struck the projecting pipe, causing it to fall on Lewis’ head. Davis did not see the pipe, or the truck, and did not know what he hit. He was watching the laundry truck.

The defendants answered plaintiffs’ complaint by denying the negligence alleged and the alleged consequences. Subsequently, the Supreme Court of Florida rendered its decision adopting comparative negligence in Florida. Hoffman v. Jones, 280 So.2d 431 (Fla.1973). As a result of the Hoffman decision, the defendants moved the court for leave to amend their answer by alleging negligence on the part of Florida State University and its employees. The court denied the motion.

The trial court correctly refused defendants leave to file an amended answer asserting, as a ground for reducing defendants’ liability to plaintiffs, the concurring negligence of other tortfeasors. Plaintiffs had the right to select initially the parties defendant, and the defendants so joined were not entitled to reduce plaintiffs’ potential recovery from them by attributing some of plaintiffs’ loss to alleged tort-feasors absent from court. See Lincenberg v. Issen, 318 So.2d 386 (Fla.1975). The 1975 Uniform Contribution Among Tort-feasors Act, Ch. 75-108, became effective several months after plaintiffs’ cause of action was reduced to judgment and therefore has no application to this case. Section 768.31(7), Florida Statutes, 1975.

The defendants also moved the court for leave to file a third party complaint against the two university maintenance employees and their liability insurance company. The court granted this motion and defendants filed the complaint charging the employees with negligence and seeking contribution from them. Service was obtained on the employees and their insurance company. They filed a motion to dismiss the complaint, and the court granted the motion.

We cannot consider this issue, because the defendants failed to make the employees and their liability insurance company parties to this appeal. They are the only parties concerned with this alleged error. The plaintiffs are not.

The defendants requested the court to submit a special verdict to the jury. The court denied this request.

Although the court is authorized to submit a special verdict to a jury, this is discretionary, Hoffman v. Jones. The trial court did not abuse its discretion. The special verdict included a number of interrogatories which were improper because they required the jury to determine whether an unnamed party was negligent, and if so, the degree of negligence.

The court denied five instructions requested by the defendants. These instructions covered “no inference of negligence from mere fact of accident”, “load projecting 4 feet or more beyond the bed or body of a vehicle must have flag attached”, “not liable for injury from danger not reasonably foreseeable”, “visibility of object collided with must be taken into consideration”, and “unavoidable accident”.

The court correctly denied these instructions, because either the Supreme Court Committee on Standard Jury Instructions recommended that they not be given, or they were covered by the standard instructions given by the court, or the facts in this case did not support the giving of them.

During the jury’s deliberation, it returned to the courtroom and informed the court that it would like to know the Florida law governing overhang from vehicles, when a red flag was required, and the point on a vehicle from which measurement is made to determine overhang.

The court had previously refused to give the defendants’ requested instruction on Section 317.551, Florida Statutes, which deals with loads projecting beyond the rear of vehicles, but had permitted the defendants to argue to the jury, during closing argument, the evidence presented to the jury during the trial concerning the projecting pipe.

The court did not charge the jury on Section 317.551, Florida Statutes, but did advise the jury that the overhang was a matter for it to consider in determining whether Davis was negligent. This action was proper, because there was no evidence that the pipe extended 4 feet or more beyond the bed of the truck. Section 317.551 is applicable only where the load extends 4 feet or more beyond the bed or body of the truck.

Immediately following the above discussion between the jury and the court, the court read to the jury standard instructions 4.1 and 5.1 which the defendants contend were favorable to the plaintiffs. We do not agree. The instructions defined negligence, reasonable care, and legal cause. It was both proper and appropriate for the court to give these particular instructions to the jury at the time given. They aided the jury in its understanding of the law to be applied to the facts heard by it. They were no more favorable to the plaintiffs than to the defendants.

During the trial, the defendants moved for a directed verdict, and after the trial they moved to set aside the verdict, on the ground that no negligence was shown on the part of Davis. The court properly denied both motions.

Our review of the record convinces us that the jury’s verdict for the plaintiffs was supported by substantial competent evidence. The only issue presented to the jury was whether Davis was negligent. The plaintiffs adduced evidence that Davis was exceeding the posted speed limit and struck a pipe he did not see, although visibility was good. There was evidence that Davis did not see the pipe, because he was watching an oncoming laundry truck. The truck from which the pipe extended was properly parked and in an area from which it operated. Lewis was an innocent bystander.

During plaintiffs’ voir dire examination, their attorney stated that the City of Tallahassee was being sued. The defendants’ attorney objected, and the court explained to the jury that the City was not a party to the suit. During defendant’s voir dire examination, their attorney inquired of the jurors if they understood that the City was not a party defendant, and was not involved in the suit. The plaintiffs’ attorney objected stating that was an incorrect statement. The defendants’ attorney moved for a mistrial. The court denied the motion for a mistrial, but instructed the jury that the City was not a party to the suit.

During closing argument, plaintiffs’ attorney stated that Mrs. Lewis was entitled to recover the wages she lost, because she quit her job to be with her injured husband. Defendants’ attorney objected. The court sustained the objection and instructed the jury that it was not to consider Mrs. Lewis’ lost wages, because they were not a proper item of damage.

After this objection was made, plaintiffs’ attorney, upon resuming his argument, stated that defendants were concerned only with money and that he and the jury were concerned with the lives of the plaintiffs. No objection was made.

It appears to us that defendants were neither prejudiced nor harmed. The court took prompt and proper action by instructing the jury that the City was not a party, and that the wife’s lost wages were not a proper item of damage.

Although the latter language used by plaintiffs’ attorney during closing argument was emotional and unnecessary, because counsel are accorded wide latitude in making arguments to the jury, unless their remarks are highly inflammatory and prejudicial, their statements will not serve as a basis for reversal of a judgment. The remarks now complained of were not of such an inflammatory nature as to require a reversal.

The judgment appealed is affirmed.

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


text:
    Douglas V. PEEBLES, Appellant, v. Betty V. STILLMAN and Donald E. Wilkes, Appellees.
    No. X-525.
    District Court of Appeal of Florida, First District.
    April 5, 1976.
    Rehearing Denied May 18, 1976.
    Merritt H. Powell, Daytona Beach, for appellant.
    David A. Monaco, Raymond, Wilson, Karl, Conway and Barr, Daytona Beach, and Donald E. Wilkes, for appellees.
   PER CURIAM.

This is the third appearance of this case, on one or another of its facets; Peebles v. Kilday, Fla.App., 257 So.2d 627; Peebles v. Smith, Fla.App., 291 So.2d 102; Peebles v. Stillman, Fla.App., 296 So.2d 671, cert. denied, Fla., 303 So.2d 640. We have reviewed the record, read the briefs and heard oral arguments, and the Appellant having failed to demonstrate error, the judgment below is AFFIRMED.

BOYER, C. J., RAWLS, J., and SACK, MARTIN, Associate Judge, concur.


author: WALDEN, Chief Judge.

text:
    DYNAMIC HOMES, INC., a Florida Corporation, et al., Appellants, v. William ROGERS and J. C. Fortson, Appellees.
    No. 75-744.
    District Court of Appeal of Florida, Fourth District.
    April 23, 1976.

      Howard F. Ullman of Ullman, Kinder & Entin, Miami, for appellants Dynamic Homes, Inc. and Talltree, Inc.
    Jerrold Knee of Salter, Yeslow & Burn-stein, Hollywood, for appellees.
   WALDEN, Chief Judge.

This was a suit upon a promissory note. A final money judgment was entered in favor of plaintiffs, William Rogers and J. C. Fortson, and against all the defendants, Dynamic Homes, Inc., Talltree, Inc., Arthur J. Maas and Janet H. Maas, jointly and severally. The judgment was for $158,000 plus costs and fees.

The corporate defendants, Dynamic Homes, Inc. and Talltree, _ Inc., appeal. We reverse as to them.

The note in question was a standard printed form. The only identification or mention of the makers was at the signature space. It was as follows:

by /s/ Arthur J. Maas.(SEAL)
by /s/ Janet H. Maas.(SEAL)
/s/ Arthur J. Maas_(SEAL)
ARTHUR MAAS - Individually
/s/ Janet H. Maas_(SEAL)
JANET MAAS - Individually
There was no mention on the note of the corporate defendants.

Although not assigned as error and made a point, the problem here had its genesis in the complaint which simply sued upon the note. It failed to state a cause of action as to appellants and should have been dismissed. Had plaintiffs been required to plead properly as to them so as to reflect a cognizable claim, it is likely that the trial proofs and procedures would have been more productive.

Based upon the appellate presentation, the trial court should have entered a directed verdict in favor of the corporate defendants at the conclusion of the plaintiffs’ case in accordance with defendants’ motion, and it was reversible error not to do so.

Corporate defendants contend that they are entitled to judgment as a matter of law by reason of the fact that their names were not mentioned in the note and because parol testimony could not be used to show the Maas’ representative capacity under these circumstances.

Bearing on the controversy are the provisions of Fla.Stat. 673.403(2) (b):

“673.403 Signature by authorized representative.—
“(1) A signature may be made by an agent or other representative, and his authority to make it may be established as in other cases of representation. No particular form of appointment is necessary to establish such authority.
“(2) An authorized representative who signs his own name to an instrument:
(a) Is personally obligated if the instrument neither names the person represented nor shows that the representative signed in a representative capacity;
(b) Except as otherwise established between the immediate parties, is personally obligated if the instrument names the person represented but does not show that the representative signed in a representative capacity, or if the instrument does not name the person represented but does show that the representative signed in a representative capacity.
“(3) Except as otherwise established the name of an organization preceded or followed by the name and office of an authorized individual is a signature made in a representative capacity.”

In the official UCC comment that follows this section we see certain examples under the heading “Purposes of changes.” The applicable illustration is:

“3. Assuming that Peter Pringle is a principal and Arthur Adams is his agent, an instrument might, for example, bear the following signatures affixed by the agent—
“(a) ‘Peter Pringle’, or
“(b) ‘Arthur Adams’, or
“(c) ‘Peter Pringle by Arthur Adams, Agent’, or
“(d) ‘Arthur Adams, Agent’, or
“(e) ‘Peter Pringle
Arthur Adams’, or
“(f) ‘Peter Pringle Corporation Arthur Adams’.”
‡ * * * * *
“Subsection 2(b) adopts the New York (minority) rule of Megowan v. Peterson, 173 N.Y. 1 [65 N.E. 738] (1902), in such a case as (d)

It is our opinion that example 3.(d) above fits the present case. The fact that the Maas signed individually with specificity and then signed the note again with their signatures preceded by the word, “by,” indicates that they also signed the note in a representative capacity, although the note does not reveal the identity of the person or corporation represented.

Now, as to the Megowan case, which appears to govern via the New York rule, the defendant signed a promissory note adding the word “trustee” after his name. The note itself did not disclose that defendant was trustee for certain creditors or otherwise disclose defendant’s representative character. At trial plaintiff made a prima facie case and rested. Defendant introduced evidence as to the details of the trust and that among the creditors creating the trust was plaintiff. Defendant orally testified as to the discharge of his duties as trustee in the completion of certain buildings and that he thereby bought lumber from plaintiff with an express agreement between them that plaintiff would accept the promissory note from him as trustee in payment. Plaintiffs disputed defendant’s testimony. The distilled dispute was whether plaintiffs gave credit to defendant in his representative capacity or as an individual. Regardless, the trial court directed a verdict against the plaintiffs. The New York Court of Appeals reversed. It was held that there was a question of fact for the jury to resolve. In short, the rationale was that as between the original parties and those having notice of the facts relied upon as constituting a defense, the consideration and the conditions under which the note was delivered may be shown.

And so we would understand the UCC rule to be that in the instance of an instrument showing a signature in a representative capacity, but not naming the person represented, parol testimony may be introduced in a suit between the immediate parties to show that the signature was of a representative character. See 4A Fla.Jur., Bills, Notes, etc., § 352.

In the instant case, with the indicated manner of signing, the immediate parties to the transaction could establish between themselves with parol testimony whether the Maas signed in a representative, as well as an individual, capacity. We think this is the meaning and intendment of the prefatory clause in Fla.Stat. § 673.403(2) (b) (1975), “Except as otherwise established between the immediate parties.”

The second facet implicit in this appeal is whether the record, including pa-rol testimony, established that the Maas signed in a representative capacity so as to obligate the corporate defendants. We have read every word contained in the plaintiffs’ case and find that, as a matter of law, it did not.

Only the two plaintiffs testified and the only exhibit was the note. It would unduly and unnecessarily prolong this opinion to sketch what was said. Suffice to say that the bulk of it was wholly irrelevant and immaterial as concerns the allegations of the complaint. It had to do with the establishment of a travel/trailer campground in Marion County; its management; the work and travel incurred; the stabilization of trailer sites, etc.

There is vague testimony concerning a sale of the stock of the corporation owning the campground. However, there is a total absence of testimony that the Maas were authorized representatives, agents or officers or directors of the defendant corporations. There was no testimony that they intended to, or did, sign the note in a representative capacity for the corporations. See 4A Fla.Jur., Bills, Notes, etc., §§ 346, 347 and 348.

To conclude, plaintiffs simply failed in their proofs to show that the corporate defendants were obligated on the note. The judgment is reversed as to the two defendant corporations and the cause remanded with instructions to enter judgment in their favor.

REVERSED AND REMANDED, with directions.

DOWNEY, J., and SCHULTZ, GEORGE E., Associate Judge, concur.


author: NATHAN, Judge.

text:
    Maria T. HERNANDEZ, Appellant, v. TRAVELERS INSURANCE COMPANY, a Foreign Corporation, Appellee.
    No. 75-865.
    District Court of Appeal of Florida, Third District.
    April 20, 1976.

      Levenstein & Burke & Associates, and Linda Dakis, Miami, for appellant.
    High, Stack, Davis & Lazenby, and Alan R. Dakan, Miami, for appellee.
    Before PEARSON, HENDRY and NATHAN, JJ.
   NATHAN, Judge.

Plaintiff, Maria Hernandez, having recovered a judgment in the amount of $600 against defendant, Travelers Insurance Company, appeals from a post-judgment order of the trial court assessing costs of $706.92 against her in favor of Travelers. Travelers cross-appeals from the same order awarding plaintiff $1,000 for her attorneys fees arising out of the suit.

Hernandez sued Travelers, her no fault insurance carrier under the Florida Automobile Reparations Reform Act, for personal injury protection benefits in the amount of $832.85 under the terms of her policy. Prior to trial, Travelers, pursuant to Rule 1.442, RCP, made a timely offer of judgment in the amount of $600 to allow judgment to be taken against it “in favor of plaintiff(s) Maria T. Hernandez, and her attorney, Jerold Hart.” This was refused by Hernandez.

Pursuant to §§ 627.428 and 627.-736(4) (b) and (c), Fla.Stat., after trial and entry of final judgment, Hernandez filed a motion to tax costs and to award attorneys fees and interest. Travelers moved to tax costs against Hernandez based on its offer of judgment. The trial court taxed costs against Travelers in the sum of $30 and awarded Hernandez the above mentioned attorneys fees. Travelers was awarded the costs herein appealed.

The question raised by Hernandez is whether the jury award of $536 plus interest and attorneys fees exceeds the $600 offer of judgment filed by Travelers and refused by Hernandez. We think so. The offer of judgment in itself is dispositive of this question as such offer was in favor of Hernandez and her attorney, Jerold Hart. The offer can only be interpreted as including attorneys fees for Hernandez which obviously, as the record reflects, is more favorable than the $600 offer. Had the offer been made only to the adverse party, (Hernandez), as provided by Rule 1.442, RCP, then the court could have awarded attorneys fees for work done up to the time of the offer of judgment. When an offer of judgment is made, the defendant stops the running of further costs and attorneys fees. This is a proper interpretation of the Rule. Rule 1.442, RCP, is designed to induce or influence a party to settle litigation and obviate the necessity of a trial. Santiesteban v. McGrath, Fla.App.1975,320 So.2d 476.

The offer of judgment being less than the amount recovered by Hernandez, the orders assessing costs against her in the sum of $706.92 and the order denying her interest are reversed.

Travelers argues on cross-appeal that the offer of judgment precluded an award for attorneys fees under § 627.-428(1) Fla.Stat., because the amount recovered by Hernandez was less than the offer of judgment. We reject this as unsound because the amount recovered was in excess of the offer of judgment as we have herein held. Therefore, the award of attorneys fees is affirmed.

Affirmed in part and reversed in part.

      . Sections 627.730 to 627.741, Fla.Stat.

      . Rule 1.442, RC.P, entitled “Offer of Judgment” provides in pertinent part, “At any time more than ten days before the trial begins a party defending against a claim may serve an offer on the adverse party to allow judgment to be taken against him for the money or property or to the effect specified in his offer with costs then accrued. ... If the judgment finally obtained by the adverse party is not more favorable than the offer, he must pay the costs incurred after the making of the offer. . . . ”

      .Section 627.428, Fla.Stat., provides for an award of attorneys fees upon the rendition of a judgment or decree in a Florida State Court against an insurer and in favor of an insured. Section 627.736(4) (b), sets out the time period within which personal injury protection benefits must be paid, and if not paid, when they become overdue. Seetion 627.736(4) (c) provides that all overdue payments shall bear simple interest at the rate of 10 percent per annum.

      . Rule 1.442, RCP, quoted in text of opinion; Truth Seeker Co. v. Durning, 2d Cir. 1945, 147 F.2d 54, 56.

      . See Johnny Morrow’s Wrecking Grew, Inc. v. Slate, Tex.Civ.App., 368 S.W.2d 32, 33.


author: BOARDMAN, Judge.

text:
    Robert CAIVANO and Bankers Fire and Casualty Insurance Company, Appellants, v. STATE of Florida and Collier County, Florida, Appellees.
    No. 75-1170.
    District Court of Appeal of Florida, Second District.
    May 5, 1976.

      Steadman S. Stahl, Jr., of Varón, Stahl & Kay, Hollywood, and Archie Odom, Punta Gorda, for appellants.
    Robert L. Shevin, Atty. Gen., Tallahassee, and Robert J. Landry, Tampa, Asst. Atty. Gen., for appellee State of Florida; David Emerson Bruner, Naples, for ap-pellee Collier County.
   BOARDMAN, Judge.

This timely appeal concerns the propriety of a bond estreature and forfeiture. The facts are essentially as follows:

The litigation arose initially when the state filed a two-count information charging appellant, Robert Caivano, with violation of the narcotic drug laws. He was subsequently convicted of both offenses and sentenced on each count to some three years to run concurrently. The judgment and sentence were appealed to this court and on October 25, 1973, we remanded the cause for proper sentencing, said sentencing being in violation of the same transaction rule. On remand for the imposition of the proper sentence, in accordance with our opinion, the proceedings in the trial court, which were originally set for November 20, 1973, were continued until February 11, 1974. During that interim rescheduling period appellant filed a motion for mitigation of sentence. On February 11, 1974, the trial court placed Caivano on probation for a period of three years. The state appealed this ruling of the trial court and the cause was presented to us for the second time.

In this second appeal, we remanded the cause to the trial court for imposition of sentence in accordance with our original mandate of October 25, 1973. Whereupon, the trial court issued an order of arrest which commanded the sheriffs, constables and any investigator of the state attorney’s office to bring Caivano before the court for sentencing.

While the second appeal was pending an affidavit was filed on August 29, 1974, alleging that Caivano had violated the terms and conditions of probation. On September 16, 1974, an order was entered by the Circuit Court in Broward County permitting Caivano to be released upon posting bond in the amount of $100,000 for violation of probation. The bond was posted and Caivano was released from custody. Said bail bond was executed on September 25, 1974, by Caivano and appellant, Bankers Fire and Casualty Insurance Company (Bankers). Subsequently, the order of arrest, hereinabove referred to, was received by the attorney for Caivano and the attorney for Bankers.

The order of arrest directed Caivano to appear before the circuit judge in Coilier County on June 18, 1975, to be sentenced in accordance with our mandate of October 25, 1973. On June 18, 1975, the appellant having failed to appear as ordered, in open court the circuit judge estreated the bond of $100,000 that had been posted for the appearance of Caivano to answer to the charge of “vio. probation.” The estreature was ordered over objection of counsel for Caivano. On the following day, the court entered a certificate and order of forfeiture of appearance bond and a judgment of forfeiture of the bond was rendered.

Subsequently, counsel on behalf of Cai-vano and Bankers filed a motion to set aside this forfeiture. At the hearing on the said motion held on July 18, 1975, a representative of the circuit court clerk testified that the clerk’s office had not sent a notice to Bankers directing appearance of Caivano in court to answer to the charge of “vio. probation” as provided in the bond. The representative also testified that the only notice sent to the bonding company by the clerk’s office was contained in the order of arrest which only directed that certain law enforcement officers bring Caivano before the court for sentencing. Notwithstanding, the circuit court entered its order denying Bankers’ motion to set aside the forfeiture and this appeal followed.

Appellants have raised three points for our consideration. In view of our decision, we deem it necessary to discuss only one point, that is, the failure of a clerk’s office to give the requisite statutory notice afforded the surety of a bail bond in producing a defendant to answer charges set forth in the bond before estreature and the entry of judgment of forfeiture.

Florida Statutes, Section 903.26, provides, in pertinent part, as follows:

(1) A bail bond shall not be forfeited unless:
******
(b) The ’clerk of court gave the surety at least seventy-two [72] hours’ notice, exclusive of Saturdays, Sundays, and holidays, before the time of the required appearance of the defendant. Notice shall not be necessary if the time for appearance is within seventy-two [72] hours from the time of arrest, or if the time is stated on the bond.

As the above-recited facts, which are entirely supported by the record, disclose, the surety, Bankers, was not given notice that Caivano’s appearance was for the purpose as set out in the bail bond, i. e. “vio. probation.” The order of arrest which Bankers’ attorney had notice of only directed that Caivano appear in court to be sentenced in accordance with our mandate of October 25, 1975. This notice was insufficient and is contrary not only to statutory law, but to case precedent regarding forfeiture. In this case, as stated above, the record fails to show that the requisite notice was ever given to Bankers prior to the contested forfeiture. It is a well established principle of law that forfeitures are not favored at law; and, thus, statutes providing for them are strictly construed.

We conclude that the order denying Bankers’ motion to set aside the certificate and order of forfeiture of appearance bond and judgment of forfeiture of bond are hereby

REVERSED with directions to set aside the estreature and forfeiture. The said bond shall remain in effect. The cause is remanded to the trial court for further proceedings consistent with this opinion.

HOBSON, A. C. J., and SCHEB, J., concur.

      . Caivano v. State, Fla.App.2d, 1973, 276 So. 2d 245.

      . State v. Caivano, Fla.App.2d, 1974, 304 So.2d 139.

      . In State for the Use and Benefit of Dade County v. All Florida Surety Co., Fla.1952, 59 So.2d 849, the Supreme Court of Florida said: “This Court has repeatedly held that the offense charged must be stated in the appearance bond and that the liability of a surety is not to be extended beyond the terms of his contract and to that extent he is bonded. . .”

      . Williams v. Stack, Fla.App. 4th, 1972, 269 So.2d 771; Ramsey v. State, Fla.App. 2d, 1969, 225 So.2d 182; Boyle v. State, Fla. 1950, 47 So.2d 693; City of Miami v. Miller, 1941, 148 Fla. 349, 4 So.2d 369.


author: SCHEB, Judge.

text:
    STATE of Florida, Petitioner, v. John Patrick McNALLY, Respondent.
    No. 75-1168.
    District Court of Appeal of Florida, Second District.
    May 5, 1976.
    Robert L. Shevin, Atty. Gen., Tallahassee, and Richard G. Pippinger, Asst. Atty. Gen., Tampa, for petitioner.
    Frank C. Alderman, III, Ft. Myers, for respondent.
   SCHEB, Judge.

Petitioner/State challenges an order directing it to reimburse a defendant’s attorney under RCrP 3.190(j)(3) for expenses of travel and subsistence for attendance at the taking of a deposition designed to perpetuate testimony. Specifically, the issue here is whether the respondent’s attorney has this entitlement where after the State moved to perpetuate the testimony of a potential witness, it informed defense counsel that it abandoned its desire to depose the witness.

A criminal case pending against respondent/John Patrick McNally was set for trial on August 12, 1975, in Lee County. The State had moved to perpetuate the testimony of Dr. Barnard, a potential witness, residing in Gainesville. Four days prior to the scheduled trial, this court stayed the trial pending determination of the State’s petition for a writ of certiorari. Counsel representing the petitioner and the respondent were each in Lakeland at this court, and once the trial was stayed, petitioner then and there informed the respondent’s counsel that the State no longer desired to take the scheduled deposition. Respondent’s counsel, however, announced he would, nevertheless, proceed as scheduled. Having been so informed, counsel for the petitioner likewise proceeded to Gainesville where Dr. Barnard’s deposition was taken as originally scheduled.

Respondent s counsel moved for ' reimbursement, pursuant to RCrP 3.190(j)(3), for meals, travel, out of office expense, and court reporter’s expenses. The trial judge, upon hearing, ordered the Office of the State Attorney of the Twentieth Judicial Circuit to “pay from the proper fund . . . $100 to . attorney for the defendant” as reimbursement for travel and meals. While we find no authority for the petitioner’s direct appeal, we accept it as a petition for a writ of certiorari and hold that the trial judge, in directing reimbursement, departed from the essential requirements of the law.

Respondent’s counsel admits that he and petitioner’s counsel proceeded to Gaines-ville and took the deposition at his insistence. He contends, however, this was justified inasmuch as he had made necessary plans to proceed and since both counsel had already traveled to Lakeland from Ft. Myers, it was reasonable to complete the deposition.

We cannot agree with the respondent. Counsel for the petitioner and the respondent arrived in Lakeland at this court pursuant to the petitioner’s motion to continue the trial. It cannot be said that this trip was occasioned by the petitioner’s motion to perpetuate Dr. Barnard’s testimony. The rule provides reimbursement for attendance at the deposition, but there is no liability upon the State to pay the respondent’s attorney for expenses of travel and subsistence here since the petitioner made that attendance unnecessary before any expenses were incurred by respondent.

Accordingly, certiorari is granted and the order entered is quashed.

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

      . State v. Caivano, Fla.App.2d 1974, 304 So.2d 139; State v. Smith, Fla.1972, 260 So.2d 489.


text:
    Robert A. DAY, Appellant (Respondent), v. Johanna DAY, Appellee (Petitioner).
    No. AA-242.
    District Court of Appeal of Florida, First District.
    May 12, 1976.

      W. D. Richbourg, Pensacola, for appellant.
    Paul L. Cummings, Pensacola, for ap-pellee.
   MILLS, Judge.

Robert and Johanna were married in 1957. They lived together as husband and wife until 1972 when the marriage was dissolved. The court awarded Johanna alimony of $350.00 a month.

Prior to her marriage to Robert, Johanna was married to George. This marriage was terminated by a final judgment of divorce in California. Thereafter, she married Charles. She filed suit for a divorce from him in California, but obtained only an interlocutory judgment of divorce. Charles obtained a final judgment of divorce in 1958.

At the time of her marriage to Robert, Johanna was still married to Charles. The evidence is conflicting as to whether she knew that she was still married to Charles. There is no evidence of fraud or intentional deception on her part. Robert did not learn that Johanna’s divorce from Charles did not become final until after he had married her, until several years after their marriage was dissolved. Upon learning this, he filed a petition for modification of the alimony award on the ground that their marriage was void. Therefore, he was not legally obligated to support her.

The court denied the petition on the grounds that the marriage was voidable, that no fraud or intentional deception was perpetrated on Robert, and that a common law marriage existed from the date of the final judgment of divorce obtained by Charles to the date the marriage between Robert and Johanna was dissolved.

Robert contends this was error. We do not agree.

A ceremonial marriage which is invalid because of an existing undissolved marriage which is unknown to one of them, absent fraud or deception by the other, becomes a presumptively valid common law marriage, if the impediment ceased to exist prior to the abolition of common law marriage in Florida, and if the parties continued to cohabit after dissolution of the prior marriage. Jones v. Jones, 119 Fla. 824, 161 So. 836 (1935). Common law marriages were abolished in Florida effective 1 January 1968. Section 741.211, Florida Statutes. The findings of the court are supported by the record.

We affirm the order under attack.

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


author: CREWS, JOHN J., Associate Judge.

text:
    SOUTH CAROLINA INSURANCE COMPANY, a Foreign Corporation, Appellant, v. John Stuart WOLF, d/b/a Stuart Jewelers, Appellee.
    No. Y-478.
    District Court of Appeal of Florida, First District.
    May 12, 1976.
    John I. Todd, Jr., Jacksonville, for appellant.
    Bruce W. Robinson, of Brannon, Brown, Noris, Vocelle & Haley, Lake City, for ap-pellee.
   CREWS, JOHN J., Associate Judge.

This appeal is from a Final Judgment predicated upon a jury verdict in favor of appellee who was plaintiff below.

Appellant’s first Assignment of Error is that the COURT ERRED IN FAILING TO DIRECT A VERDICT FOR THE DEFENDANT. Since we agree and reverse, we will not discuss the other assignments.

The complaint was framed in two counts. Count I was grounded on a written policy of insurance covering loss resulting from robbery inside the premises. Count II was predicated upon an oral contract allegedly entered into between appel-lee and one Robert T. Crocker, appellant’s special agent.

Appellee owned and operated Stuart Jewelers in Lake City, Florida since 1956. Prior to 1969 he carried “jeweler’s block insurance” with another company which protected him from safe burglary, robbery inside and away from the premises.

Prior to 1969 appellee acquired an adjacent building which contained a walk-in type bank vault which he considered relatively safe and strong. Since he put his “precious things” in the vault each night upon closing, he contacted his insurance agent seeking to reduce the limits of his policy which would result in a lower premium.

Subsequently, at the request of the local agent, appellant’s special agent, herein-above identified, met with appellee in 1969 after which the written policy was issued through appellee’s agent reducing the coverage that was formerly carried with the other company from $40,000 to $10,000, with an annual premium of $148.00 instead of $1,169 paid the earlier carrier.

The policy was effective for three years commencing February 21, 1969. Thereupon, it was renewed for three years and was in effect when the burglary of the vault or safe occurred on September 18, 1973. This policy did not provide “jeweler’s block” coverage, but specifically delineated that it only insured for loss sustained from “robbery inside the premises.”

The experienced and learned trial judge finding that there wasn’t any coverage for safe burglary under the written contract, directed a verdict in favor of the appellant, but submitted the issue of an oral contract of insurance to the jury.

Appellee contends that the question to be decided is one of fact not law, and the trier of fact could find from the evidence that the necessary requirements of an oral contract of insurance had been met. In support of his position he relies upon the following cases: Durbin Paper Stock Company v. Watson-David Insurance Company, 167 So.2d 34, (3rd D.C.A., 1964); Liberty Mutual Fire Insurance Company v. Sanderman, 286 So.2d 254 (3rd D.C.A., 1973) ; Mathews v. Ranger Insurance Company, 281 So.2d 345 (Fla.1973); and loseph Uram Jewelers, Inc. v. Liberty Mutual Insurance Company, 273 So.2d 111, (3rd D.C.A., 1972).

Durbin is inapplicable for, as was pointed out in Frank, et al. v. Travelers Indemnity Company of Hartford, Connecticut, Fla.App., 310 So.2d 418 (3rd D.C.A., 1975) that decision rested upon previous dealings of the parties.

In the case sub-judice, the record does not reveal an oral binder for coverage for loss sustained from “safe burglary.” or that such coverage was requested either of the local or special agent Crocker. Considered in the light most favorable to appel-lee, it can only be said that he had an un-communicated desire to have safe burglary coverage as he had with his prior carrier.

This is further manifested when appellee testified at trial that he did not discuss with Mr. Crocker terms, conditions, premiums, and that they did not “go into detail.” He did not know whom the special agent represented, and the record is void of any prior transaction with appellant.

We have carefully examined the other cases cited by appellee and to avoid prolixity simply find that they are not applicable to the case at bar as either the issue decided was different, or the factual situation so dissimilar as to be without benefit.

We come now to the real point to be decided. What are the essentials necessary to establish an oral contract of insurance in Florida, and was there competent substantial evidence before the jury for it to render a verdict for appellee? In State Farm Fire and Casualty Company v. Lloyd Warren Hicks and Mabel Naomi Hicks his wife, Fla.App., 184 So.2d 685 (1966) the Court said quoting the Supreme Court of Florida in Collins v. Aetna Insurance Company, 103 Fla. 848, 138 So. 369 (1931), the essentials are:

“. . . the subject-matter, the risk insured against, the amount of insurance, the rate of premium, the duration of the risk, and the identity of the parties.”

We recognize the very familiar rule that an appellate court should not “substitute its judgment for that of a jury when the jury has resolved the conflicts in the evidence and has determined the issues of fact.” We also are cognizable that the only exception to this rule is “wherein there is no competent substantial evidence which sustains the jury’s verdict or, stated in another form, when the verdict is against the manifest weight of the evidence.” Glass, et al. v. Parrish, Fla., 51 So.2d 717.

For the reasons stated and the law cited we conclude that the appellee-plain-tiff did not establish by competent substantial evidence the existence of an oral contract of insurance. Accordingly, the trial court should have granted defendant-appellant’s motion for a directed verdict at the close of all the evidence.

The final judgment should be and is hereby reversed.

RAWLS, Acting C. J., and McCORD, J., concur.


author: BOYER, Chief Judge. MILLS, Judge

text:
    David Jon HORNBLOWER, Appellant (Defendant), v. STATE of Florida, Appellee (State).
    No. Z-170.
    District Court of Appeal of Florida, First District.
    May 5, 1976.
    Richard W. Ervin, III, Public Defender, and Michael J. Minerva, Asst. Public Defender, for appellant.

      Robert L. Shevin, Atty. Gen., and Carolyn M. Snurkowski, Asst. Atty. Gen., for appellee.
   BOYER, Chief Judge.

Upon denial of his motion to suppress drugs seized from a mobile home occupied by him, the defendant pled nolo contendere to charges of possession of amphetamines and possession of less than five grams of marijuana, reserving the right to appeal the denial of his motion. The defendant was adjudged guilty of both charges. He was placed on probation on the charge of possession of amphetamines. After serving 30 days in the county jail, he was placed on probation for the possession of marijuana. The only issue before us is whether the trial court erred in denying the motion to suppress.

By prearrangement, a deputy sheriff met Dale, the brother of the defendant, at their mobile home for .the purpose of buying one thousand amphetamine tablets. The deputy had the money in his possession for their purchase. Although he did not enter the mobile home, the deputy saw men inside smoking, and smelled the odor of marijuana or hashish smoke coming from inside the home. After smelling the smoke, the deputy inquired if Dale had any marijuana or hashish for sale. Dale responded that they had plenty, and a sale was reached. He entered the home, and returned with a supply of hashish which was sold to the deputy.

Dale then told the deputy that he had only two hundred amphetamine tablets for sale at that time, and that the deputy should follow him to another mobile home park where he would obtain them. That was done: The sale was concluded, and Dale was arrested. Following his arrest Dale admitted that he and the defendant were selling amphetamines, and that the defendant gave him the two hundred tablets when he entered the mobile home to pick up the hashish.

Dale was transported to the jail, and the deputy remained there about one and one-half hours. Thereafter, the deputy along with several other officers returned to the mobile home to watch it. The deputy noticed that two vehicles were parked at the mobile home which were there when he left with Dale. They subsequently departed and were apprehended down the road by other officers. One of them had several packets of hashish in his possession.

The deputy then met with several other officers and after a conference decided there was still a quantity of drugs in the mobile home. In addition, they decided to enter the home, because they felt that the defendant would become suspicious because Dale had not returned, and would destroy the drugs.

The deputy went to the front door, and another officer went to the rear door. The deputy knocked and announced who he was. Upon doing this, he heard and saw the defendant running toward the back of the home. The deputy immediately broke a jalousie in the door glass, as did the officer at the rear door, and they entered the home. While they were breaking in the doors, they heard a commode flushing. Upon entering the bathroom, the officer rescued some marijuana from the commode. A subsequent search disclosed a few amphetamine pills and several smoked marijuana cigarettes.

The defendant moved to suppress this evidence because there was an absence of probable cause and exigent circumstances. We disagree. There was both.

AFFIRMED.

McCORD, J., concurs.

MILLS, J., dissents.

MILLS, Judge

(dissenting):

I dissent. In my opinion, there was neither probable cause nor exigent circumstances to support the warrantless search and seizure of the amphetamines. There was no evidence that the defendant had amphetamine pills in his home. To the contrary, the evidence indicates that he had none. Dale had agreed to sell the deputy one thousand pills, but at the sale said that he had only two hundred which he had just obtained from the defendant. As the deputy had the money to buy one thousand, certainly Dale would have sold him this amount if he had them or could have obtained them. There was no evidence that the defendant was about to flee or to destroy drugs. To the contrary, he remained in the home from the time the deputy first saw him until the breakin. Nor was there any evidence that the defendant was going to destroy drugs. The deputy and the other officers had the home under surveillance for some time before the breakin. This could and should have been continued until a warrant was obtained. The State offered no excuse for its failure to obtain a warrant.

Although there was probable cause to support the warrantless search and seizure of the marijuana, there was no exigent circumstances. Earlier in the evening, the deputy saw persons smoking in the home and smelled marijuana smoke coming from inside the home. Shortly thereafter, Dale told him that they had plenty of hashish and went into the home where he got a supply which he sold to the deputy. There was probable cause. However, as stated above, there is no evidence of exigent circumstances. See Shepard v. State, 319 So.2d 127 (Fla.App. 1st, 1975); Berry v. State, 316 So.2d 72 (Fla.App. 1st, 1975).

The evidence further indicates that the officers had decided at their conference, prior to knocking on the door of the home, that they were going to search the home.

I would reverse.


text:
    Charles Edward HARDER, Appellant, v. Joanne Marie HARDER, Appellee.
    No. 74-1041.
    District Court of Appeal of Florida, Second District.
    April 14, 1976.
    David A. Maney, of Gordon & Maney, Tampa, for appellant.

      Richard J. Salem, of Salem & Salem, Tampa, former atty. for appellee.
    David Luther Woodward, of Rose & Woodward, Tampa, present atty. for appel-lee.
   HOBSON, Judge.

In this appeal from an award of attorney fees, we find no reversible error in the amount of the fee; however, the record does disclose that it would work a hardship upon the appellant to pay the fee in a lump sum. Therefore, the case is remanded with directions to allow the appellant a one-year period in which to pay the attorney fee in full. In all other respects the judgment is affirmed.

McNULTY, C. J., and SCHEB, J., concur.


author: McCORD, Judge.

text:
    BROWARD COUNTY CLASSROOM TEACHERS ASSOCIATION, INC., Appellant-Petitioner, v. The PUBLIC EMPLOYEES RELATIONS COMMISSION, Appellee-Respondent.
    Nos. AA-235 and AA-255.
    District Court of Appeal of Florida, First District.
    May 3, 1976.
    Rehearing Denied May 26, 1976.

      Ronald G. Meyer, Law Offices of Frank & Meyer, P. A., Tampa, for appellant.
    Richard H. Frank and Ronald G. Meyer, Frank & Meyer, Tampa, for petitioner.
    Jack McLean, Jr., Tallahassee, for appel-lee-respondent.
   McCORD, Judge.

These are two consolidated cases. One is an appeal from a final order of the Circuit Court, Leon County, denying a motion for temporary injunction and dismissing the complaint of Broward County Classroom Teachers Association, Inc. (hereinafter referred to as CTA). The second is a petition for writ of certiorari which we entertain as a petition for review of administrative action under § 120.68, Florida Statutes. The petition is for review of an undated order of The Public Employees Relations Commission (hereinafter referred to as PERC) entered on November 10, 1975, as modified by order of November 17,1975.

The issues in both actions are the same:

(1) Does PERC have authority under § 447.507, Florida Statutes to enforce or implement Section 447.505 in the absence of an unfair labor practice charge having been lodged with it which alleges a violation of § 447.501(2) (a), Florida Statutes ?
(2) If the answer to “(1)” above is in the affirmative, may PERC act to enforce or implement the above statute without having itself adopted specific rules governing the procedure for such?

The trial court and PERC both ruled in the affirmative as to both of the above points.

These actions before this court arose out of an alleged strike of Broward County Teachers in violation of § 447.505, Florida Statutes. PERC obtained an injunction against CTA and thereafter the strike was terminated. The public employer, the Bro-ward County School Board, did not file an unfair labor practice charge alleging violation of § 447.501(2) (e) and PERC, therefore, had the choice of either doing nothing or initiating proceedings on its own to investigate the alleged violations and impose sanctions provided for in Chapter 447 if it found a violation had occurred. It chose to initiate action and entered the order to show cause complained of. CTA sought injunction in the circuit court and also sought review of PERC’s order contending that PERC has no authority to initiate proceedings on its own to investigate and impose sanctions but can only act when an unfair labor practice charge is filed with it.

The trial court ruled as follows:

“ORDERED AND ADJUDGED that said Motion for Temporary Injunction be and the same is hereby denied and the Motion to Dismiss the Complaint is hereby granted. The Court is of the view that the defendant Commission is authorized, under F.S. 447.207(6) to investigate charges of striking by public employees and that under F.S. 447.-507(6) (a) the said defendant has the power and duty to investigate and determine whether or not an employee organization, as defined in the statutes, has violated F.S. 447.505, prohibiting an employee organization from participating in a strike against a public employer. The Court is further of the view that procedures under F.S. 447.507 are distinct from those under F.S. 447.501, dealing with unfair labor practices, and that the making of a charge of an unfair labor practice is not a prerequisite to procedures under F.S. 447.507(6) (a).”

PERC in its order from which review is sought ruled as follows:

“Having heard the arguments of counsel, the Commission finds that Section 447.-507, Florida Statutes (Supp.1974) grants authority to the Commission to initiate proceedings sua sponte both to enjoin violations of Section 447.505 through Section 447.507(2) or, after appropriate hearing on notice, to impose sanctions as provided in Section 447.507(5) and (6)(a). * * *
Section 447.505, which expressly and independently of the Unfair Labor Practice provisions prohibits strikes by public employees, evidences a legislative intent that the Commission should take appropriate action whenever public employees or any employee organization violates Section 447.505. In support of this conclusion, the Commission notes that Section 447.507 provides specific and independent remedies and sanctions for violations of Section 447.505. We conclude that Sections 447.505 and .507 authorize the Commission to take appropriate action, as specified, to prevent strikes, notwithstanding the public employer’s failure to invoke the provisions and protection of the Unfair Labor Practice provisions of the statute.
The above conclusion is supported by public policy and reason. Unquestionably, the legislature has mandated that public policy is best served by enforcement of the constitutional prohibition against strikes by public employees. If the Commission could act to enforce the strike prohibition only upon the filing of a charge by a public employer, a public employer by non-action or agreement could effectively emasculate the constitutional and statutory prohibitions against strikes. This, in the opinion of the Commission, would frustrate legislative intent.
In this case, no charge has been filed by the public employer alleging a violation of Section 447.501(2) (e). Consequently, in order to effectuate the purposes of the Public Employees Relations Act and Article I, Section 5, of the Florida Constitution, the Commission must act pursuant to Sections 447.505 and 447.507(6).
* * * On balance of the issues involved, a majority of the Commission finds that a hearing conducted by the State Division of Administrative Hearings will not result in a denial of due process in the absence of specific Commission Rules. Division of Administrative Hearings has promulgated rules which provide the necessary procedural safeguards.”

Article I, Section 6, of the Florida Constitution provides:

“ . . . Public employees shall not have the right to strike.”

Section 447.501, Florida Statutes, lists and defines numerous unfair labor practices. Among them [subsection (2) (e) ] is the following:

“Participating in a strike against the public employer by instigating or supporting, in any positive manner, a strike. Any violation of this paragraph shall subject the violator to the penalties provided in this part.”

Section 447.503 sets forth the procedure for PERC’s dealing with charges of unfair labor practices that are filed with it. From this, CTA concludes and argues that since a strike is an unfair labor practice, PERC is limited to dealing with it to only investigating and acting upon charges that are filed and in the absence of a charge PERC has no power to proceed. We must look not only to § 447.501 and § 447.503 for answer to this question, however. In addition to listing a strike as an unfair labor practice in § 447.507, the legislature, in implementing the above quoted provision of the Constitution, has included in this chapter a specific statute, § 447.505 which provides :

“Strikes prohibited. No public employee or employee organization may participate in a strike against a public employer by instigating or supporting, in any manner, a strike. Any violation of this section shall subject the violator to the penalties provided in this part.”

The legislature then immediately followed the foregoing section with § 447.507 entitled “Violation of strike prohibition; penalties.” That section describes the various remedies for dealing with a strike and subsection (5) thereof provides in pertinent part:

“If the commission, after a hearing on notice conducted according to rules promulgated by the commission, determines that an employee has violated section 447.505, Florida Statutes it may. . .”

and subsection (6) (a) thereof provides in pertinent part:

“If the commission determines that an employee organization has violated section 447.505, Florida Statutes it may. . .”

The statute also specifies the sanctions that may be imposed upon such an employee or an employee organization which has violated Section 447.505. Nothing in Section 447.507 indicates or infers that the commission may not act on its own motion when a strike is involved. It appears clear that, having added this section dealing specifically with strikes, the legislature intended, as to strikes, that the commission investigate and act on its own motion under § 447.507 or that it act under § 447.503 upon complaint of another. The legislature intended these two alternate procedures for dealing with strikes by public employees, and logically so since the Constitution forbids strikes by public employees.

As to CTA’s second point, the failure of PERC to adopt specific rules of procedure governing the investigation of and imposition of sanctions for strikes is not fatal to the proceeding. PERC is an agency under the Administrative Procedure Act, Chapter 120, Florida Statutes. Section 120.54(9) provides in pertinent part as follows:

“The Administration Commission shall promulgate one or more sets of model rules of procedure which shall be reviewed by the committee and filed with the Department of State. On filing with the department, the appropriate model rules shall be the rules of procedure for each agency subject to this act to the extent that each agency does not adopt a specific rule of procedure covering the subject matter contained in the model rules applicable to that agency. . .”

In the absence of its own specific rules, PERC may proceed under the model rules adopted pursuant to the above statute.

The order of the Circuit Court is affirmed and the orders of PERC from which administrative review was sought are affirmed.

BOYER, C. J., and SMITH, J., concur.


author: PEARSON, Judge.

text:
    Michael GORCHOV, Appellant, v. The STATE of Florida, Appellee.
    No. 75-380.
    District Court of Appeal of Florida, Third District.
    May 4, 1976.
    Phillip A. Hubbart, Public Defender and Karen M. Gottlieb, Asst. Public Defender, for appellant.

      Robert L. Shevin, Atty. Gen., and Margarita Esquiroz, Asst. Atty. Gen., for ap-pellee.
    Before PEARSON, HENDRY and NATHAN, JJ.
   PEARSON, Judge.

The Public Defender for the Eleventh Judicial Circuit of Florida has brought to this court an appeal for Michael Gorchov who was involuntarily hospitalized by the circuit court pursuant to Fla.Stat. § 394.-467. There is no claim that appellant Gor-chov is not mentally ill. The claim is that the trial court proceeded illegally (1) because section 394.467 (2) is unconstitutionally vague and overly broad, and (2) because the judge erred in admitting into evidence over objection a psychiatrist’s evaluation of Gorchov’s mental condition when the evaluation was made in part from controlled interrogation and observations and the subject was unable to understand the Miranda warnings given.

The constitutional challenge to the statute was not made in the trial court. Nevertheless, we are called upon to consider the question under the rule laid down in Town of Monticello v. Finlayson, 156 Fla. 568, 23 So.2d 843 (1945). Appellant urges that the criteria provided in § 394.467(1) is so vague as to be incapable of certain interpretation. See State v. Barquet, Fla. 1972, 262 So.2d 431; cf. Connally v. General Construction Company, 269 U.S. 385, 46 S.Ct. 126, 70 L.Ed. 322 (1926). The subsection is as follows:

“(1) Criteria.—A person may be involuntarily hospitalized if he is mentally ill and because of his illness is:
“(a) Likely to injure himself or others if allowed to remain at liberty, or
“(b) In need of care or treatment and lacks sufficient capacity to make a responsible application on his own behalf.”
The findings of the trial judge are explicit: “The patient, if not hospitalized, (is) . . . likely to injure (himself) or . . . others if allowed to remain at liberty.”

We find nothing vague about a statute that authorizes the confinement of a person who is so ill that he is likely to injure himself or others. Here, the record amply supports the finding of the trial judge. The appellant has attacked, and put in fear of their lives, his mother, father and a brother. Cf. Bell v. Wayne County General Hospital at Eloise, 384 F.Supp. 1085 (E.D.Mich.1974); State ex rel. Hawks v. Lazaro, W.Va.1974, 202 S.E.2d 109; and In Re Williams, La.App.1974, 297 So.2d 458.

The argument that the statute is overly broad because it does not provide some lesser relief for the situation other than confinement is an argument for legislative improvement of the act and is not a basis for striking down a statute that is presently essential to the protection of the life and the welfare of the community. The argument is not applicable to the facts presented by this appeal. Therefore, the record does not show a fundamental error in the adjudication of the appellant. Cf. Lynch v. Baxley, 386 F.Supp, 378 (M.D.Ala.1974).

Appellant’s second point is also without merit. Gorchov was not in the custody of the police when he was examined. He was not accused of' a crime. Miranda is inapplicable. See Lynch v. Baxley, supra, where it is pointed out that the privilege against self-incrimination protects only those disclosures which the subject may reasonably believe could be used in a criminal prosecution or which could lead to other evidence that might be so used.

Affirmed.