text:
    REDWING CARRIERS, INC., Petitioner, v. William T. MAYO, William H. Bevis, Paula F. Hawkins, constituting the Florida Public Service Commission, and McKenzie Tank Lines, Inc., Respondents.
    No. 52299.
    Supreme Court of Florida.
    April 5, 1978.

      Edward C. Adkins and Robert W. Pass of Carlton, Fields, Ward, Emmanuel, Smith & Cutler, Tampa, for petitioner.
    Prentice P. Pruitt and M. Robert Christ, Tallahassee, for respondents.
    W. Guy McKenzie, Jr., Tallahassee for McKenzie Tank Lines, Inc., intervenor-re-spondent.
   ENGLAND, Justice.

Redwing Carriers, Inc. asks us to review and quash an order of the Florida Public Service Commission granting a certificate of public convenience and necessity to McKenzie Tank Lines, Inc. for the transportation of bulk liquid chemicals by tank vehicles from St. Lucie and Broward Counties to all points in Florida. Prior to the grant, Redwing was the only carrier authorized by the Commission to perform this type of transportation service in these areas of the state.

The controversy between Redwing and McKenzie focuses on the liquid chemical transportation needs of Apperson Chemical Company. In 1976 Apperson established a bulk chemical shipping point in Ft. Pierce (St. Lucie County). It simultaneously contemplated locating a similar shipping point at some indefinite future date in Pompano Beach (Broward County). As the only authorized tank truck carrier in those locales, Redwing undertook to provide Apperson with on-call service for the Ft. Pierce plant from its terminal in Ft. Lauderdale (Bro-ward County). During the initial 3-month period that Apperson’s Ft. Pierce terminal was in operation, however, Redwing apparently failed repeatedly to provide the transportation services it had promised, as a consequence of which Apperson was forced to close its Ft. Pierce shipping point and postpone opening a plant in Pompano Beach. Apperson testified to the Commission that it will reopen the Ft. Pierce plant if McKenzie receives authority to serve its transportation needs.

After public hearings on McKenzie’s application, a hearing examiner recommended that authority be granted only as to St. Lucie County since the Broward County facility was still in the planning stage. Nevertheless, the Commission granted McKenzie’s application as to both counties (with one commissioner dissenting as to Broward County).

Redwing now assails both portions of the Commission’s order. There is little precedential value in a discussion of Red-wing’s attack on that portion of the Commission’s order which authorizes McKenzie to transport bulk liquid chemicals from St. Lucie County. We have examined the record of these proceedings and find, first, that the order in that regard is supported by competent substantial evidence, and second, that the Commission’s findings of fact meet the specificity requirements set forth in Section 120.59(1), Florida Statutes (1975).

With respect to the Commission’s grant of authority for McKenzie to transport liquid chemicals in bulk from Broward County, however, the ramifications of the Commission’s action warrant some discussion. Apperson was the only shipper to testify as to the need for a certified tank truck carrier in Broward County, and its needs are conceded by the Commission and McKenzie to be prospective only. In granting McKenzie authority to meet those “needs”, the Commission essentially determined that Redwing’s service deficiencies in serving Apperson’s St. Lucie County facility were of such magnitude that another carrier should be given an opportunity to serve Apperson’s Broward County facility when and if the need for transportation by common carrier should arise. This decision of the Commission fails to meet statutory requirements for the grant of a certificate of public convenience and necessity under Chapter 323, Florida Statutes (1975), and thus evinces a departure from the essential requirements of law.

Section 323.03(3)(a), Florida Statutes (1975), directs that when the Commission proposes to issue a certificate of public convenience and necessity it

“shall take into consideration the effect that the granting of such certificate may have upon transportation facilities within the territory sought to be served by said applicant, and also the effect upon transportation as a whole within said territory.”

Section 323.03(3)(c) provides that a certificate for common carriage in a territory already certificated to another carrier shall be granted only when the existing carrier fails to provide the services and facilities which the Commission has required. We have held that this latter provision places a burden on applicants for a certificate to show that existing service and facilities are unsatisfactory. Fargo Van & Storage, Inc. v. Bevis, 314 So.2d 129 (Fla.1975). In declining McKenzie’s request to service Ap-person’s proposed needs in Broward County, the hearing examiner found as a fact that “Redwing could conveniently serve Pompano Beach from its Ft. Lauderdale terminal . . .."

The deficiencies in the Commission’s determination are manifest. First, since no shipper from Broward County testified, there was no evidence at all regarding the adequacy of existing service in that area. Second, Redwing obviously was not given a reasonable opportunity to serve Apperson’s Broward County needs before McKenzie was granted authority to do so, since Ap-person never inaugurated Broward County service. See Commercial Carrier Corp. v. Mason, 177 So.2d 337 (Fla.1965). Finally, there is no showing in the record, and no finding in the Commission’s order, as to the effect on Redwing of granting McKenzie a certificate to serve Apperson in Broward County.

Commission Order No. 13695 is quashed insofar as it grants authority to McKenzie Tank Lines, Inc. to extend its certificate of public convenience and necessity for the transportation of liquid chemicals in bulk from points in Broward County. Section 120.68(10), Florida Statutes (1975). The Commission’s order is affirmed in all other respects. Section 120.68(14), Florida Statutes (1975).

It is so ordered.

SUNDBERG, HATCHETT and KARL, JJ., concur.

BOYD, Acting C. J., dissents.

      . We have jurisdiction to review the Commission’s order. Art. V, § 3(b)(3), Fla.Const.; § 350.641, Fla.Stat. (1975).

      . The Commission and McKenzie argue that the territory to be served by McKenzie embraces a community of interest in South Florida generally, rather than the specific counties of St. Lucie and Broward. In its final order the Commission hinted at this rationale by noting that St. Lucie and Broward Counties “both are in the same general vicinity.” We reject this argument in light of the record evidence of Apperson’s different county requirements and Redwing’s variant South Florida facilities. In any event, there is no evidence in the record to support the contention now made in the Commission’s brief that Broward and St. Lucie Counties are a community of interest or a common service area for the purpose of motor carrier transportation of bulk liquid chemicals. But see Morgan Drive Away, Inc. v. Mason, 183 So.2d 202 (Fla.1966).

      . In fact, the effect on Redwing is incalculable since the certificate awarded to McKenzie grants authority for more common carriage than Apperson alone may require.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    Jerome F. WOOD, Appellant, v. STATE of Florida, Appellee.
    No. 52335.
    Supreme Court of Florida.
    April 5, 1978.
    Steven Jablon, Asst. Public Defender, Kissimmee, for appellant.
    Robert L. Shevin, Atty. Gen., Tallahassee, and Lawrence Davis, Asst. States Atty., Kissimmee, for appellee.
   PER CURIAM.

Reversed. State v. Lee, 356 So.2d 276 (Fla.1978).

OVERTON, C. J., and BOYD, ENGLAND, SUNDBERG and KARL, JJ., concur.


author: HATCHETT, Justice.

text:
    Oscar LEWIS, Petitioner, v. STATE of Florida, Respondent.
    No. 52610.
    Supreme Court of Florida.
    April 5, 1978.

      Richard L. Jorandby, Public Defender and Craig S. Barnard, Asst. Public Defender, West Palm Beach, for petitioner.
    David H. Bludworth, State’s Atty. and James R. Wolf, Asst. State’s Atty., West Palm Beach, for respondent.
   HATCHETT, Justice.

The district court has certified to us its decision, reported at 352 So.2d 93 (Fla. 4th DCA 1977), involving a question of great public interest:

Whether the speedy trial time provisions of Fla.R.Crim.P. 3.191(b)(1) apply to a defendant who, after being arrested or charged, is thereafter imprisoned on an unrelated charge?

We have jurisdiction pursuant to Article V, Section 3(b)(3), Florida Constitution (1968), and answer this question in the negative.

Petitioner was arrested for robbery on November 18, 1975. He was released on December 11, 1975 because the state failed to file formal charges. Subsequently, on April 27, 1976, petitioner was sentenced to prison for five years on an unrelated criminal conviction. On August 26, 1976, while in prison, petitioner was rearrested on the robbery charge. On November 22, 1976, the trial court granted petitioner’s motion for discharge for failure of the state to commence trial within 180 days of the initial arrest. The trial court applied the time limits of Fla.R.Crim.P. 3.191(a)(1) and rejected the state’s contention that, because of petitioner’s subsequent imprisonment on the unrelated charge, Rule 3.191(b)(1) should be applied to enlarge the speedy trial time to one year.

Fla.R.Crim.P. 3.191(b)(1) states:

(b)(1). Prisoners in Florida; Trial Without Demand. Except as otherwise provided, a person who is imprisoned in a penal or correctional institution of this State or a subdivision thereof and who is charged by indictment or information, whether or not a detainer has been filed against such person, shall without demand be brought to trial within one year if the crime charged be a misdemeanor or felony not involving violence, within two years if the crime charged be a noncapital felony involving violence, or if the crime charged be punishable by death; and if not brought to trial within such term shall upon motion timely filed with the court having jurisdiction and served upon the prosecuting attorney be forever discharged from the crime. The period of time established by this rule shall commence when the person is taken into custody as a result of the subject conduct or criminal episode, or when the subject charge of crime is filed, whichever is earlier, whether or not such period may commence to run before such person began to serve his term of imprisonment. The periods of time established by this section shall govern if the person is released from confinement while less than six months of such period of time for trial remains; if more than six months of such period of time for trial remains upon release from confinement, this section shall cease to apply and the rights of such person and of the State shall be governed by §§ (a)(1) and (2).

The constitutionality of this rule was upheld by this court in State v. Lott, 286 So.2d 565 (Fla.1973), on the grounds that the enlarged speedy trial time period applicable to prisoners serving sentences in our state correctional institutions was based upon a reasonable classification, and did not deny such prisoners equal protection of the laws. This court, in Lott, noted that Rule 3.191. insures the speedy trial rights of prisoners, and authorizes them to file a demand for speedy trial to shorten the time provided for in the rule. No attempt was made, however, to further define in Lott the scope of that rule, which, as noted by the district court below, is somewhat ambiguous. The rule clearly covers those persons who are imprisoned at the time they are arrested or charged with a crime. The subsequent phrase, however, establishing the proper method of computing the commencement of the speedy trial time period under this section, implies that this rule also governs proceedings in which a defendant is arrested or charged with a crime, and is thereafter incarcerated on an unrelated offense during the speedy trial time period.

Our speedy trial rule was promulgated in order to promote the efficient operation of the court system and to act as a stimulus to prosecutors to bring defendants to trial as soon as practicable, thus minimizing the hardships placed upon accused persons awaiting trial. Rules 3.191(b)(1) and (2) recognize that the additional burdens placed upon those persons already serving a sentence of imprisonment are markedly different than those additional restraints placed upon those not in prison. Although the construction imposed upon this rule by the district court is generally consistent with the purpose behind this different treatment, the district court’s interpretation, which would make applicable 3.191(b)(1) to persons arrested or charged with a crime and subsequently jailed on an unrelated charge, creates certain undesirable effects. First, the speedy trial time limits can be more easily calculated by prosecutors and defendants if the applicable rule is determined from the defendant’s status at the time he is arrested or charged. At the time of the commencement of the running of the speedy trial period, the defendant’s status will determine whether the limits as set forth in 3.191(a)(1) or those in 3.191(b)(1) will govern the trial proceedings. Secondly, the district court’s interpretation of Rule 3.191(b)(1) would allow the state to avoid the application of the 180 day time limits by incarcerating a defendant even upon a minor charge during the running of that 180 day period, in order to obtain an extension under Rule 3.191(b)(1) for an additional period of time.

Because of these various policy considerations, we therefore construe Section 3.191(b)(1) to make it expressly applicable only to those persons imprisoned “in a penal or correctional institution of this State or a subdivision thereof” at the time they are arrested or charged with additional crimes. We further note that this section applies only to those defendants imprisoned in a state or county penal or correctional institution pursuant to a criminal judgment of guilt and does not apply to those defendants being held in jail while awaiting trial. If one jurisdiction in this state seeks to bring to trial a defendant awaiting trial in ánother county, the state should affirmatively request an extension of the speedy trial limits under Fla.R.Crim.P. 3.191(d)(2), alleging the existence of this exceptional circumstance.

In the present case, the defendant was not imprisoned at the time he was initially arrested for the robbery. Therefore, the state should have brought him to trial within 180 days. The speedy trial time limits commenced to run on the date of his arrest, November 18, 1975. The state did not file formal charges against petitioner for this crime until after the 180 day period had expired. We do not believe that petitioner’s conviction and imprisonment on unrelated criminal charges, more than five months after his initial arrest, should be applied to waive his right to be brought to trial within 180 days. We hold that the trial court correctly granted petitioner’s motion for discharge.

Accordingly, the district court’s opinion is quashed and the case remanded for further proceedings consistent with this opinion.

It is so ordered.

BOYD, Acting C. J., and ENGLAND, SUNDBERG and KARL, JJ., concur.

      . Fla.R.Crim.P. 3.191(a)(1) provides:

        (a)(1). Speedy Trial Without Demand. Except as otherwise provided by this Rule, every person charged with a crime by indictment or information shall without demand be brought to trial within 90 days if the crime charged be a misdemeanor, or within 180 days if the crime charged be a felony, capital or noncapital, and if not brought to trial within such time shall upon motion timely filed with the court having jurisdiction and served upon the prosecuting attorney be forever discharged from the crime; provided, the court before granting such motion shall ascertain that such person has been continuously available for trial during such period of time for trial. The time periods established by this section shall commence when such person is taken into custody as a result of the conduct or criminal episode giving rise to the crime charged. A person charged with a crime is entitled to the benefits of this Rule whether or not such person has been held to answer at a preliminary hearing, or whether or not such person has waived such hearing, and whether such person is in custody awaiting trial or is at liberty on bail or recognizance. If such person is serving a sentence of imprisonment elsewhere than Florida for conviction of an unrelated crime, the operation of this section shall not be effective until such person is no longer confined. This section shall cease to apply whenever a person files a demand for speedy trial under § (a)(2).

      . In Lott, supra, this court was presented with two issues: (1) whether the Florida Supreme Court abused its rule making power by granting the State of Florida an additional six months within which to try a defendant who is incarcerated elsewhere in Florida for another crime; (2) whether Rule 3.191(b)(1) violates the equal protection clause of the Fourteenth Amendment of the federal constitution.
      This court implicitly resolved the equal protection issue in favor of the state’s position, as noted by the dissent. However, the court was primarily concerned with the trial court’s determination that this portion of the speedy trial rule was an abuse of the Florida Supreme Court’s constitutional rule making powers.

      . The facts involved in Lott are strikingly similar to those involved in this case. There, the defendant was arrested on August 29, 1972 and charged with larceny. He was released on bail, but was arrested on December 13, 1972 in another county on another criminal charge. He was tried and convicted for that subsequent offense on January 30, 1973. Thereafter, he was transferred to stand trial on the initial larceny charge. When the state failed to bring him to trial within 180 days of his arrest on that charge, the trial court discharged him from prosecution. The defendant in Lott apparently never raised the issue concerning the applicability of Rule 3.191(b)(1) to him since he was not imprisoned at the time he was arrested for larceny.

      .Fla.R.Crim.P. 3.191(b)(2) provides:

        (b)(2). Prisoners in Florida; Trial Upon Demand. Except as otherwise provided, a person who is imprisoned in a penal or correctional institution of this State or a subdivision thereof and who is charged by indictment or information, whether or not a detainer has been filed against such person, shall upon demand filed with the court having jurisdiction and upon service of a copy of such demand upon the prosecuting attorney be brought to trial within six months and if not brought to trial within such period of time for trial shall upon motion timely filed with the court and served on the prosecuting attorney be forever discharged from the crime; provided, the State shall waive objection to merely formal defects in the demand so long as notice of the crime sought to be discharged and the relief otherwise sought is sufficient to inform the court and the prosecuting attorney. The period of time for trial established by this section shall commence when such demand is filed and served; and such period of time for trial shall continue to run if such person is released from confinement during such time, provided the court shall ascertain before granting motion for discharge that such person has been continuously available for trial following such release. If a person who files a demand for trial or for discharge under this rule becomes involuntarily unavailable for trial, the court shall enter such orders as are in the interests of justice. A person who elects to proceed under this section may not thereafter proceed under § (a)(2) unless he first files with the court and serves upon the prosecuting attorney a waiver or abandonment of all motions or proceedings under this section.

      . Fla.R.Crim.P. 3.191(d)(2) provides:

        (d)(2). When Time May Be Extended. The periods of time established by this Rule for trial may at any time be waived or extended by order of the court (i) upon stipulation, signed in proper person or by counsel, by the party against whom the stipulation is sought to be enforced, provided the period of time sought to be extended has not expired at the time of signing, or (ii) on the court’s own motion or motion by either party in exceptional circumstances as hereafter defined, or (iii) with good cause shown by the accused upon waiver by him or on his behalf, or (iv) a period of reasonable and necessary delay resulting from proceedings including but not limited to an examination and hearing to determine the mental competency or physical ability of the defendant to stand trial, for hearings on pre-trial motions, for interlocutory appeals, and for trial of other pending criminal charges against the accused. For the purposes of this Rule, any other delay shall be unexcused.


text:
    THE FLORIDA BAR. In re Clinton M. T. GREEN.
    Nos. 52977 and 52069.
    Supreme Court of Florida.
    April 5, 1978.
    Clinton M.' T. Green, in pro. per.
    Charles Edward H. Beck, Bar Counsel, St. Petersburg • and Michael C. Whittington, Asst. Staff Counsel, Tampa, and James P. Hollaway, Tallahassee, Asst. Staff Counsel, for The Florida Bar, respondent.
   PER CURIAM.

This matter is before the Court on petition of Clinton M. T. Green for leave to resign pursuant to The Florida Bar Integration Rule, Article XI, Rule 11.08.

Petitioner files his petition for leave to resign while the following matters are pending against him:

1. The Florida Bar v. Clinton M. T. Green, Case No. 6A76-14, charging failure to act competently in timely completing a real estate closing and in probating an estate. The Referee found petitioner guilty of violation of The Florida Bar Code of Professional Responsibility, DR 6-101(A), DR 7-101(A)(2), and DR 9-102(A), and recommended petitioner be suspended from the practice of law for one year.

2. The Florida Bar v. Clinton M. T. Green, Case No. 6A77-12, charging neglect in failing to forward criminal appellate records and transcript to client.

3. The Florida Bar v. Clinton M. T. Green, Case No. 6A77-026, charging neglect in a legal matter entrusted to petitioner resulting in a default judgment being entered against his client.

4. The Florida Bar v. Clinton M. T. Green, Case No. 6A78-802, charging failure to pursue a foreclosure proceeding entrusted to petitioner; that the petitioner, although directed by his client to appeal a traffic conviction, paid a fine for the client and did not prosecute the appeal; and that the petitioner failed to return certain of the client’s property entrusted to him.

5. The Florida Bar v. Clinton M. T. Green, Case No. 06AU8-H07, charging failure to refund all of the retainer paid to petitioner by his client to commence a dissolution action which action the client subsequently decided not to pursue.

6. State of Florida v. Clinton M. T. Green, Pinellas County Circuit Criminal Case No. 7204007-CFANO. On July 28, 1977, petitioner was arrested in Pinellas County and charged with a felony offense of possession of more than one hundred pounds of marijuana. Petitioner was found guilty of said offense in a jury trial held on October 26, 1977, and on November 23, 1977, the petitioner was sentenced to a term of imprisonment in the Florida Division of Corrections for a period of six months to seven years.

Pursuant to the provisions of Florida Bar Integration Rule, Article XI, Rule 11.08, the petition for leave to resign is granted upon the following conditions:

(i) Petitioner shall not make or file an application for readmission to The Florida Bar until he is released from custody and parole, if any, but in no event until after the expiration of five years after the date of this order accepting resignation, nor until all costs, currently assessed or not, in connection with disciplinary cases that are dismissed because of his resignation have been paid by petitioner; and

(ii) Confidentiality is hereby waived.

Execution is directed to issue for the costs of these proceedings against the petitioner in the amount of $416.20.

It is so ordered.

OVERTON, C. J., and ADKINS, SUND-BERG, HATCHETT and KARL, JJ., concur.


text:
    THE FLORIDA BAR, Complainant, v. Edward W. STARR, Respondent.
    No. 53404.
    Supreme Court of Florida.
    April 5, 1978.
    John A. Weiss, Asst. Staff Counsel, Tallahassee, for complainant.
    Thomas A. Hoadley, West Palm Beach, for respondent.
   PER CURIAM.

This matter is before the Court on Petition for Approval of Conditional Guilty Plea for Consent Judgment and Entry of Final Order of Discipline.

On February 13, 1978, The Florida Bar filed its Petition alleging:

“1. On September 9, 1977, the 15th Circuit Grievance Committee ‘B’ filed its report with The Florida Bar finding probable cause in case number 15B77017. In that report, the committee found that respondent engaged in conduct involving dishonesty, fraud, deceit or misrepresentation which adversely reflected on his fitness to practice law in that he willfully failed to file income tax returns for the year 1973. The committee took notice that respondent had been convicted of a criminal misdemeanor for failure to file an income tax return for 1973.
“2. On September 9, 1977, the 15th Circuit Grievance Committee ‘B’ filed its report with The Florida Bar finding probable cause in case number 15B77020. In that report, the committee found that respondent had neglected a legal matter entrusted to him in that he had been paid a fee in advance and had accepted representation of a client, yet he failed to file an answer or appear at a hearing for temporary relief and a final hearing on behalf of his client.
“3. On December 11,1977, respondent, EDWARD W. STARR with the advice of his counsel, Thomas A. Hoadley, Esq., submitted to The Florida Bar his Conditional Guilty Plea for Consent Judgment. In his plea, respondent agrees to a suspension from the practice of law for a six month period, commencing on the date of his release from jail or on March 9, 1978, whichever is earlier. He was released from confinement on December 20, 1977.
“4. Fla. Bar Integr. Rule, art. XI, Rule 11.10(3) requires proof of rehabilitation prior to reinstatement for all suspensions lasting over three months.
“5. By his plea, Mr. Starr admitted that he failed to file his income tax return for the year 1973, a federal misdemeanor, and that he neglected a legal matter entrusted to him [such conduct is a violation of Fla. Bar Code Prof. Resp. DR 1-102(A)(4) and DR 6-101(A)(3)].
“6. On January 13, 1978, the Board of Governors of The Florida Bar approved the Conditional Guilty Plea for Consent Judgment.”

The Petition for Approval of Conditional Guilty Plea is granted, and Respondent, EDWARD W. STARR, is hereby suspended from the practice of law in Florida for six months effective nunc pro tunc December 20, 1977, the date he was released from incarceration, and it is further

ORDERED that Respondent fulfill the requirements of the Integration Rule of The Florida Bar found in Rule 11.10(3) and (6) as well as all other requirements in the Integration Rule applicable to suspended attorneys.

Costs in the amount of $494.00 are hereby taxed against the Respondent.

It is so ordered.

OVERTON, C. J., and ADKINS, BOYD, ENGLAND and KARL, JJ., concur.


author: ADKINS, Justice.

text:
    The CITIZENS OF the State of FLORIDA, Petitioners, v. William T. MAYO, Chairman, William H. Bevis, Commissioner, and Paula F. Hawkins, Commissioner, as and constituting the Florida Public Service Commission, Respondents.
    No. 50446.
    Supreme Court of Florida.
    April 6, 1978.

      Larry Levy, Public Counsel and C. Earl Henderson and Peter Andrew Knocke, Associate Public Counsel, Tallahassee, for petitioners.
    William L. Weeks, Gen. Counsel, and Barrett G. Johnson, Tallahassee, for Florida Public Service Com'n, respondents.
    D. Fred McMullen, Lee L. Willis and James D. Beasley of Ausley, McMullen, McGehee, Carothers & Proctor, Tallahassee, for Tampa Elec. Co., intervenor-respondent.
    R. Y. Patterson, Jr., and Daniel O. White, Winter Park, for Fla. Gas Co., intervenor-respondent.
    Walter H. Alford, Miami, for Southern Bell Tel. and Tel. Co., intervenor-respon-dent.
    Dan R. Schwartz, in pro. per.
   ADKINS, Justice.

We have for review by writ of certiorari an order of the Public Service Commission denying a petition of public counsel wherein he sought to have the Commission institute rule making proceedings pursuant to the provisions of Section 120.54, Florida Statutes (1975) for the purpose of adopting an amendment to the Commission’s rule regarding agenda conferences (25-1.40, Florida Administrative Code) in the form proposed by public counsel.

An agenda conference is a medium for decision making. A particular matter does not come up before the Commissioners at an agenda conference until after all steps involved in the development of the record in such matters have been concluded. An agenda conference is analogous to jury deliberations in a court trial, or a conference among a panel of judges following oral argument on an appeal. The Commission holds its conferences with its advisory staff in public on a regularly scheduled basis, as provided in Rule 25-1.40. These conferences, called agenda conferences, deal with whatever matters are ready for decision at the time they are held, and typically cover many cases. In accordance with the Administrative Procedure Act, an agenda is prepared and distributed to the public in advance listing those cases scheduled for decision at a given conference. In addition, all summaries by advisory staff are public documents.

This proceeding was prompted by petitioner’s stated desire to actively participate in Commission agenda conferences. The existing Commission rule governing agenda conferences reads:

“25-1.40 Agenda Conferences. Decisions by the Commission are made and votes thereon are taken at agenda conferences, which are normally held in the Commission’s offices in Tallahassee on the first, third and fifth Mondays of each month; agenda conferences are also held at other times and places as necessary. Single copies of the agenda for each conference may be obtained without charge on request to the Commission Clerk. Notices announcing the specific time, date and place of each agenda conference are published in the Florida Administrative Weekly approximately ten (10) days in advance. Summaries and responses to Commissioners’ inquiries, if any, are made only by the Commission staff. Participation in Commission proceedings by the parties and the public generally is provided for under the provisions of Chapter 25-2, Florida Administrative Code.
Specific Authority 350.12(1)(m), 364.20, 364.42, 366.05(1), 367.121[1](f), 120.53, F.S. Law Implemented 350.121[350.12](1)(m), 364.20, 364.42, 366.05(1), 367.121(1)(f), 120.53,F.S. History — New 10-20-75.”

Petitioner here faults the Commission for denying his petition to amend the foregoing rule to read as follows:

“25-1.40 Agenda Conferences. Decisions by the Commission are made and votes thereon are taken at agenda conferences, which are normally held in the Commission’s offices in Tallahassee on the first, third and fifth Mondays of each month; agenda conferences are also held at other times and places as necessary. Single copies of the agenda for eách conference may be obtained without charge on request to the Commission Clerk. Notices announcing the specific time, date and place of each agenda conference are published in the Florida Administrative Weekly approximately ten (10) days in advance." Summaries and responses to Commissioners’ inquiries, if any, are made only by the Commission staff- and the Office of the Public Counsel. Participation in Commission proceedings by the parties and the public generally is provided for under the provisions of Chapter 25-2, Florida Administrative Code.
Specific Authority 350.0611. 350.12(1)(m), 364.20, 364.42, 366.05(1), 367.121(1)(f), 120.53,F.S. Law Implemented 350.0611. 350.12(1)(m), 364.20, 364.42, 366.05(1), 367.121(1)(f), 120.53, F.S. History — New 10-20-75.”

Petitioner does not allege that the Commission departed from appropriate rule making procedures in disposing of his petition for an amendment to the rule, nor does he seek a determination by this Court that the existing Commission rule governing agenda conferences is invalid. The order under review does not purport to pass directly upon the validity of the existing rule.

Petitioner does not challenge the order as constituting a refusal by the Commission to exercise its discretion to adopt rules of practice or procedure as required in Section 120.53,Florida Statutes (1975).

Petitioner says that Section 350.0611, Florida Statutes (1975) mandates the adoption of his proposed rule amendment verbatim. He relies upon the following portion of the statute:

“It shall be the duty of the public counsel to provide legal representation for the people of the state in proceedings before the commission. The public counsel shall have such powers as are necessary to carry out the duties of his office, including, but not limited to, the following specific powers:
(1)To recommend to the commission, by petition, the commencement of any proceeding or action or to appear, in the name of the state or its citizens, in any proceeding or action before the commission and urge therein any position which he deems to be in the public interest, . ” (Emphasis added.)

His argument would have to rest upon this principle for this Court cannot require the adoption of a specific rule by the Public Service Commission. See State ex rel. Allen v. Rose, 123 Fla. 544, 167 So. 21 (1936); State ex rel. Corbett v. Churchwell, 215 So.2d 302 (Fla.1968).

The agency rule making function involves the exercise of agency discretion and this Court will not substitute its judgment for that of the agency on an issue of discretion. State v. A. C. L. R. R. Co., 56 Fla. 617, 47 So. 969 (1908); Section 120.68(12), Florida Statutes (1975).

In Gulf Power Company v. Bevis, 296 So.2d 482 (Fla.1974), we reviewed and approved a rule of the Commission which had been adopted for the purpose of implementing a constitutional provision imposing a corporate income tax on utilities. We approved the rule with an “admonition” and “caveats” but recognized the discretion of the Commission in the rule making process.

The only question before us is whether Section 350.0611, Florida Statutes, supra, mandates the adoption of the rule.

It does not and we agree with the statement of the Commission as follows:

“The specific question before us is whether to convene a rulemaking proceeding to adopt a rule in the form proposed by petitioner. In pertinent part, the rule would read:
Summaries and responses to Commissioners’ inquiries, if any, are made only by the Commission staff-(sic) and the Office of the Public Counsel. (Underscoring indicates additions to the rule; strikeovers indicate deletions)
This language on its face appears viola-tive of due process since it would permit one party to advise and discuss the merits of a case with the judges while excluding other parties. In petitioner’s oral presentation, he recognized this problem, even to the extent that it might be unconstitutional, but stated that he was not amending his petition to cure the defect. As a matter of law, the Commission cannot do what petitioner seeks; it has no power' to do the unconstitutional. At oral argument, petitioner did attempt to clarify his position on this point through an interpretation that his proposed rule means that whenever he chooses to intervene and participate at an agenda conference, then in those cases other parties of record could do likewise. This merely begs the issue and does not cure the defect, because the rule must stand as submitted absence [sic] a formal amendment. Even if amended a constitutional issue remains when one considers that such right of participation would be restricted to only those cases that public counsel, at his discretion, elect [sic] to intervene in as a party.”

We approve and adopt this reasoning.

Petitioner also contends that the Commission is required to adopt rules to comply with Section 120.53, Florida Statutes (1975) and that these rules must be in substantial compliance with the model rules. He specifically says that model rule 28-1.33 (Florida Administrative Code) is applicable to the Commission and requires that any restriction of public access to agency proceedings be supported by statutory authority. The Commission, in its order, disposed of this contention in the following language:

“The petition does not appear to take into account the effect of all of Section 120.54(10), which in pertinent part provides:
. 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
This Commission’s procedural rules are a comprehensive body covering their subject matter; hence, the model rules are simply inapplicable to the Commission. Even if model rule 28-1.33 were applicable to the Commission, as petitioner contends, it could hardly have the effect he advances. Petitioner has the same rights as any other party once he intervenes in any proceeding. Since he has the same full access as any other party, he is not restricted within the meaning of model rule 28-1.33. Thus, there is no reasons [sic] to cite statutory authority for any restriction, since there is none.”

We approve and adopt this reasoning of the Commission.

For the foregoing reasons, the writ of certiorari is discharged.

It is so ordered.

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


text:
    Kevin Wayne HERBERTSON, Appellant, v. STATE of Florida, Appellee. Harold BYRD, Appellant, v. STATE of Florida, Appellee.
    Nos. 52428 and 52317.
    Supreme Court of Florida.
    April 5, 1978.
    James 0. Brecher of Taylor & Brecher, Jacksonville, for Herbertson.
    Louis 0. Frost, Jr., Public Defender and William P. White, III, Asst. Public Defender, Jacksonville, for Byrd, appellant.
    Robert L. Shevin, Atty. Gen., and Charles W. Musgrove, Asst. Atty. Gen., Tallahassee, for appellee.
   PER CURIAM.

Affirmed. Soverino v. State, 356 So.2d 269 (Fla.1978).

OVERTON, C. J., and ADKINS, BOYD, ENGLAND and KARL, JJ., concur.


text:
    The TIMES PUBLISHING COMPANY, etc., et al., Petitioners, v. Honorable Vincent HALL, Circuit Judge of the Twelfth Judicial Circuit in and for Sarasota County, Florida, Respondent.
    No. 78-376.
    District Court of Appeal of Florida, Second District.
    March 10, 1978.
    George K. Rahdert, of Shackleford, Farri- or, Stallings & Evans, Tampa, for petitioners the Times Pub. Co., d/b/a St. Peters-burg Times, and the Bradenton Herald.
    W. S. Rodgers, Jr. and Ted R. Manry, III, of Macfarlane, Ferguson, Allison & Kelly, Tampa, for petitioner WFLA, Inc.
    Robert L. Shevin, Atty. Gen., Tallahassee, Charles Corees, Jr., and William I. Munsey, Jr., Assts. Attys. Gen., Tampa; James A. Gardner, State’s Atty., and Durand J. Adams, Asst. State’s Atty., Sarasota, for respondent.
   ORDER

The events leading up to the entry of this order are set forth below:

A. On March 8,1978, the Times Publishing Co. and the Bradenton Herald filed in this court a petition to review orders of March 2,1978 and March 3,1978, which had the effect of excluding the press from the trial of the above styled case under certain circumstances and a motion to stay the trial now scheduled for March 13, 1978.

B. Pursuant to the provisions of Fla.R. App.P. 9.100(d) this court scheduled a hearing on this petition at 11:00 a.m. on March 10, 1978, giving notice thereof to the petitioners, the attorney general, the state attorney for the Twelfth Judicial Circuit, counsel for the defendant and the trial judge.

C. Prior to hearing, this court was advised that on March 9,1978, the court below had issued an order which had the effect of obviating the complaints set forth in the petition.

D. On March 9, 1978, the petitioners filed a supplementary petition stating that they had just received a copy of the trial court’s order of March 2,1978, and they are now complaining of a portion thereof previously unknown to them which has not been rescinded, to wit: paragraph 10 which reads:

10. No extra judicial statement shall be made by any witness, court official, police officers, or counsel for either side. This order is effective March 13, 1978.

E. On March 9, 1978, The Tribune Company and WFLA, Inc. filed a motion for joinder in the petition for review or in the alternative to appear as amicus curiae.

F. Counsel for petitioners and those seeking joinder, an assistant state attorney of the Twelfth Judicial Circuit and an assistant attorney general appeared before this court at the scheduled hearing on this date.

G. In addition to joining in arguments of the other petitioners, WFLA, Inc. has attacked a portion of the order entered on March 9, 1978, wherein the trial judge has reserved the right to enter a subsequent order prohibiting still and television cameras from the courtroom during the sixteen year-old victim’s testimony at the trial.

H. The assistant state attorney and the assistant attorney general have represented that a stay of this case would cause manifest inconvenience and substantial expense, particularly since arrangements have already been made for expert witnesses from out-of-state to appear at the trial.

NOW, THEREFORE, IT IS ORDERED as follows:

I. In view of the fact that the complaints set forth in the original petition have been rendered moot by the subsequent order of March 9, 1978, the court will not further pass upon these matters.

2. Because of the exigent need for this criminal trial to proceed as scheduled, the motion for stay is hereby denied.

3. There having been no objection to the motions for joinder and it appearing that the movants have standing because of their interest in these proceedings, The Tribune Company and WFLA, Inc. are hereby permitted to appear as parties hereto.

4. Since the order of March 2,1978, was entered without notice and hearing, the trial judge is hereby directed to conduct a hearing prior to the commencement of the criminal trial at which all interested parties may present argument concerning the needs and propriety of the restraints prescribed in paragraph 10. See State ex rel. Miami Herald Publishing Co. v. McIntosh, 340 So.2d 904 (Fla.1976); Chicago Council of Lawyers v. Bauer, 522 F.2d 242 (7th Cir. 1975); and CBS, Inc. v. Young, 522 F.2d 234 (6th Cir. 1975).

5. Should the trial judge continue to believe that these restraints or some form of restraints are needed during the trial, he shall enter another order to this effect in which he should state the reasons for the necessity of such restraints.

6. With respect to the petition of WFLA, Inc., the trial judge is requested that in the event he intends to consider the prohibition of still and television cameras during the victim’s testimony, he first hold a hearing on the same with notice to appropriate segments of the press and electronic media and that such hearing be held reasonably in advance of the time at which it is estimated that the victim will testify.


author: NATHAN, Judge.

text:
    Ronald McPHERSON, Appellant, v. Jeffery and Flora REDDING, Appellees.
    No. 77-414.
    District Court of Appeal of Florida, Third District.
    April 4, 1978.
    Rehearing Denied May 8, 1978.

      Shutts & Bowen and Thomas H. Anderson and Brenton N. Ver Ploeg, Miami, for appellant.
    Tobias Simon and Theodore L. Tripp, Jr., Miami, for appellees.
    Before HENDRY, NATHAN and KE-HOE, JJ.
   NATHAN, Judge.

By this appeal, the defendant, Ronald/ McPherson, seeks review of an order of the trial court dismissing with prejudice his counterclaim against plaintiffs Redding to impress an equitable lien on property owned by McPherson.

Plaintiffs’ amended complaint and defendant’s counterclaim thereto emanate from the order on mandate of the trial court which followed our opinion in a prior appeal in this cause. See McPherson v. Redding, 323 So.2d 687 (Fla. 3d DCA 1975).

Plaintiffs’ original complaint was to impress a lien. Defendant answered and counterclaimed alleging among other things, that plaintiffs were trespassers and thus, should be required to remove themselves from the property and to pay any damages to which the defendants/counter-plaintiffs are justly entitled.

These issues were litigated and judgment entered thereon in favor of plaintiffs, granting them a $60,000.00 equitable lien for the period of time from 1964 to the winter of 1972. Upon reversal and remand, this court, with reference to the equitable lien opined,

“Thus, plaintiffs are not entitled to a lien for improvements beyond the date that McPherson’s rejection was communicated to them by Tripp & Snyder. At most, plaintiffs are entitled to equitable lien for the three month period, April — June 1974.”

Following and pursuant to the trial court’s order on our mandate, plaintiffs filed an amended complaint for an equitable lien for the three month period from April, 1964, to June, 1964. The defendant filed an answer and counterclaim for damages for trespass, destruction of property and profits growing out of the use of the property by plaintiffs from April, 1964, to the present time.

Plaintiffs contend that when defendant asserted his counterclaim for damages, these issues now sought to be tried were raised and already tried and resolved by the trial court, and upheld by this court, except that recovery was limited to an equitable lien for improvements during the three month period. We agree. Not only did the trial court properly dismiss the counterclaim sub judice, for damages from April, 1964, to the date of the judgment in January, 1975, but we also find that there was no abuse of discretion in not permitting the counterclaim at such a late date for the period after January 2,1975, to the present time.

The only issue now to be tried is whether plaintiffs are entitled to an equitable lien for their improvements on the property during the three month period, and the damages to the plaintiffs therefor, if any. Trial of this issue does not preclude defendant from bringing whatever separate action he may choose from the date of, and after the judgment of the trial court of January 2, 1975.

Affirmed.


text:
    Stanley A. KAUFMAN, as Director of the Rent Control Administration of the City of Miami Beach, Florida, the City of Miami Beach, Florida, a Municipal Corporation, Rose Aster and Henrietta Tauber, the Greenview Hotel Corporation, and Trust No. II d/b/a Viking Apartments, Harold J. Segal, Trustee, Appellants, v. Helyne MACHIEDO, George Ratits, and Ethel Blaustein, and all other persons similarly situate, Appellees.
    No. 77-569.
    District Court of Appeal of Florida, Third District.
    April 4, 1978.
    Rehearing Denied May 8, 1978.
    Joseph A. Wanick, City Atty. and Andrew H. Moriber, Asst. City Atty., Arthur Newman, Miami, for appellants.
    Larry A. Baker, Miami Beach, and Bruce Green, Legal Intern, Legal Services of Greater Miami, Inc., for appellees.
    Abrams & Abrams, Miami, for amicus curiae.
    Before HAVERFIELD, C. J., and PEARSON, J., and CHARLES CARROLL (Ret.), Associate Judge.
   PER CURIAM.

This is an appeal by the defendants, City of Miami Beach and Stanley A. Kaufman, as Director of the Rent Control Administration of the city, and certain other defendants, from an adverse final judgment entered in a class action challenging the validity of an order of said Director increasing allowable rents by a certain percentage, and seeking to enjoin application or enforcement of the order.

Among several contentions relied on by the appellants for reversal of the judgment is the contention that the cause should have been dismissed for failure of plaintiffs to exhaust an administrative remedy which was prescribed. We find merit in that contention, making it unnecessary to rule on the other contentions presented by appellants.

As provided for in the city’s Rent Stabilization Law, Ordinance No. 74-2018, during the time the law was in effect the Director, after a hearing and based on certain data, issued an administrative order for the rent increase. The ordinance, by subsection B of Section 8, provided an administrative remedy, resort to which was made a condition precedent to seeking review of an order issued by the Director, as follows:

“B. Any person subject to the provision of any order issued by the Director, must, prior to seeking judicial review, file a petition for reconsideration to the Director within thirty (30) days from the date of issuance of such order. The petition shall set forth concisely the alleged omissions, oversights, causes or grounds upon which it is based. If there be no such request within thirty (30) days, the findings and order of the Rent Director shall be deemed final.”

A motion of defendants to dismiss the complaint included a ground that plaintiffs had failed to pursue the administrative remedy prior to filing the action. The motion was denied. The appellants’ assignments of error included one directed to that ruling of the trial court, and the point was argued in the brief of appellants.

In the absence of exhaustion of the administrative remedy, the filing of the action in the circuit court was premature. It is well settled that exhaustion of prescribed administrative remedies is a prerequisite to seeking court review of a ruling or order of an administrative officer or board. DeCarlo v. Town of West Miami, 49 So.2d 596 (Fla.1950); Wood v. Twin Lakes Mobile Homes Village, 123 So.2d 738 (Fla. 2d DCA 1960); Odham v. Foremost Dairies, Inc., 128 So.2d 586 (Fla. 1961); Crudele v. Cook, 165 So.2d 424 (Fla. 3d DCA 1963); Pushkin v. Lombard, 279 So.2d 79 (Fla. 3d DCA 1973); Florida Welding & Erection Service, Inc. v. American Mutual Insurance Company of Boston, 285 So.2d 386 (Fla.1973).

For the reason assigned, the judgment is reversed and the cause is remanded with direction to dismiss the complaint.

It is so ordered.


author: DAUKSCH, Judge.

text:
    Daniel L. WILLIAMS, a/k/a Daniel Hosstetter, Appellant, v. STATE of Florida, Appellee.
    No. 76-1391.
    District Court of Appeal of Florida, Fourth District.
    April 10, 1978.
    Richard L. Jorandby, Public Defender, and Jerry L. Schwarz, Asst. Public Defender, West Palm Beach, for appellant.
    Robert L. Shevin, Atty. Gen., Tallahassee, and Paul H. Zacks, and John Cecilian, Asst. Attys. Gen., West Palm Beach, for appellee.
   DAUKSCH, Judge.

Appellant was found by the police in possession of a radio which was stolen from a boat. He was charged with the burglary of the boat, and the larceny of the radio. He was also charged with buying, receiving and concealing stolen property: the radio. At the close of the state’s case in chief at trial the appellant moved for an order requiring the state to elect between the larceny and the buying, receiving and concealing counts. It was the Appellant’s contention that it is inconsistent for the state to charge both that the accused was the thief and the “fence”, or somehow bought, received or concealed the radio. The court declined to require the election. The Appellant was convicted of buying, receiving and concealing stolen property.

In Griswold v. State, 77 Fla. 505, 82 So. 44, 49 (1919), it was held the accused cannot be required to answer to two inconsistent counts at trial and implicitly upon a proper motion by the Defendant at the proper time the state could be required to elect. In Carlton v. State, 108 Fla. 34, 145 So. 249 (1933), our Supreme Court held that larceny and buying, receiving and concealing stolen property are repugnant to each other and if the jury finds the Defendant guilty of one of the two inconsistent counts reversible error is committed. See also Mayers v. State, 126 Fla. 640, 171 So. 824 (1937); Pearce v. State, 143 Fla. 347, 196 So. 685 (1940), Tidwell v. State, 143 Fla. 397, 196 So. 837 (1940), and Johnson v. State, 333 So.2d 505 (Fla. 1 DCA 1976).

The radio the Appellant was accused of stealing was the same radio he was accused of having illegally bought, received or concealed. The motion for election was made at the proper time, at the close of the state’s case and before the Defendant presented evidence. Based upon the foregoing cases it is incumbent upon us to reverse the conviction of the Appellant and remand for a new trial on the charge of buying, receiving and concealing stolen property.

REVERSED and REMANDED.

ALDERMAN, C. J., and CROSS, J., concur.


author: DOWNEY, Judge.

text:
    SECURITY INSURANCE COMPANY OF HARTFORD and Shelby Mutual Insurance Company of Shelby, Ohio, Appellants, v. C. E. WEBSTER et ux., Appellees.
    No. 77-96.
    District Court of Appeal of Florida, Fourth District.
    April 10, 1978.
    Martin J. Sperry, of Carey, Dwyer, Cole, Selwood & Bernard, Fort Lauderdale, for appellants.
    Wynne M. Casteel, Jr., of Cabot, Wenkst-ern & Casteel, Fort Lauderdale, for appel-lees.
   DOWNEY, Judge.

Appellants seek review of a summary judgment for appellees in a suit on two fire insurance policies. Five points have been presented for our consideration. However, we find it necessary to consider only two.

Appellants’ first point is that there was a genuine issue of material fact involving whether the appellees’ building was a total loss after the fire. We agree that the record does not conclusively show that the building was a total loss, and that is the test. Wills v. Sears, Roebuck & Company, 351 So.2d 29 (Fla.1977).

The other point which we believe should be mentioned involves the trial court’s allowance of attorney’s fees to ap-pellees in the amount of $40,000. While the trial court held a full blown evidentiary hearing on the question of attorney’s fees and no doubt took into consideration the various factors to be considered in fixing an attorney’s fee, the amount allowed amounts to $500 per hour for 80 hours.

We recently had an opportunity to discuss the allowance of attorney’s fees in two eminent domain cases. In the light of what was said there we hold the award in this case is excessive. Of course, the entire award of fees to appellees at this stage of the proceedings must be set aside'in view of our decision to reverse on Point I. However, we considered the amount of the award simply for the future guidance of the trial court.

The judgment appealed from is reversed and the cause is remanded for further proceedings.

REVERSED AND REMANDED.

ANSTEAD and LETTS, JJ., concur.

      . Division of Administration, State of Fla. Dept. of Transportation v. Denmark, 354 So.2d 100 (Fla. 4th DCA 1978); Division of Administration, State of Fla. Dept. of Transportation v. Denmark, 356 So.2d 15 (Fla. 4th DCA 1978).


text:
    In re the ESTATE of Edwin A. TURNER, Deceased.
    No. 77-1045.
    District Court of Appeal of Florida, Fourth District.
    April 10, 1978.
    Michael N. Gomes, of Week & Stone, P.A., Pompano Beach, for appellant William B. Dibble, as Personal Representative of the Estate of Edwin A. Turner, deceased.
    Samuel S. Smith, of Smith, Mandler, Smith, Werner & Jacobowitz, P.A., Miami Beach, for appellees Katherine Turner Clyde and Earl J. Turner.
   DAUKSCH, Judge.

The personal representative in the estate of the deceased paid hospital and doctors bills even though those creditors had not filed claims against the estate within the proper statutory time. Section 733.-16, Florida Statutes (1973); Section 733.702, Florida Statutes (1975). The heirs objected to the payment and the court sustained the objection. The personal representative is not authorized to pay out money from an estate except in accordance with the established statutory procedures. Twomey v. Clausohm, 234 So.2d 338 (Fla.1970).

The order sustaining the objection is affirmed.

AFFIRMED.

ALDERMAN, C. J., and LETTS, J., concur.


author: MOORE, Judge.

text:
    FIRST PENNSYLVANIA BANK, N.A., Appellant, v. Robert P. ORECK, Appellee.
    No. 77-2446.
    District Court of Appeal of Florida, Fourth District.
    April 10, 1978.

      Robert J. Pleus, Jr., and Edward A. Mar-od of Carlton, Fields, Ward, Emmanuel, Smith & Cutler, P.A., Orlando, for appellant.
    Michael G. Williamson, of Johnson, Mot-singer, Trismen & Sharp, Orlando, for ap-pellee.
   MOORE, Judge.

This is a timely interlocutory appeal from an order denying appellant’s motion to dismiss for improper venue. Appellant contends that venue is controlled by 12 U.S. C.A. § 94 and that it can be sued only in the state or district in which it is established. We agree and reverse.

Appellant (hereafter referred to as Bank) is a national banking association with its office and principal place of business in Montgomery County, Pennsylvania. Appel-lee filed a three count complaint against Bank in the Ninth Judicial Circuit Court of Florida seeking specific performance of an alleged contract and damages for breach of contract regarding the development and sale of land which Bank owned in Orlando, Florida. The Bank does not maintain a branch office in Florida, and virtually all negotiations between the parties occurred by telephone and correspondence between Pennsylvania and Florida.

The venue for suits against national banking associations is governed by 12 U.S. C.A. § 94:

“Actions and proceedings against any association under this chapter may be had in any district or Territorial court of the United States held within the district in which such association may be established, or in any State, county, or municipal court in the county or city in which said association is located having jurisdiction in similar cases.”

The statute permits national banking associations to be sued in federal courts in the district in which they are “established.” This means the city identified in the bank’s charter. See, Radzanower v. Touche Ross & Co., 426 U.S. 148, 96 S.Ct. 1989, 48 L.Ed.2d 540 (1976). In state courts the association can be sued in the county in which it is “located,” meaning any county in which it maintains a branch bank. Citizens & Southern Bank v. Bougas, 434 U.S. 35, 98 S.Ct. 88, 54 L.Ed.2d 218 (1977).

The bank’s venue privilege may be waived by failing to raise the venue issue prior to defending a suit, First National Bank of Charlotte v. Morgan, 132 U.S. 141, 10 S.Ct. 37, 33 L.Ed. 282 (1889), or by so conducting itself that it is apparent a waiver was intended. Buffum v. Chase National Bank of City of New York, 192 F.2d 58 (7th Cir.1951). In Buffum the court well stated the general principles controlling waiver of the venue privilege:

“Waiver is a voluntary and intentional relinquishment or abandonment of a known or existing right or privilege, which, except for such waiver, would have been enjoyed. 67 C.J. 289. It may be expressed formally or it may be implied as a necessary consequence of the waiver’s conduct inconsistent with an assertion of retention of the right. It must be proved by the party relying upon it. And if the only proof of intention to waive rests on what a party does or forbears to do, his act or omissions to act should be so manifestly consistent with and indicative of an intent to relinquish voluntarily a particular right that no other reasonable explanation of his conduct is possible.” (Emphasis added). Buffum at 60.

Numerous courts have refused to find a waiver of the venue privilege where banks have had very substantial connections with the forum state. These cases would indicate that the mere ownership of land does not constitute such a waiver. For example, in Bechtel v. Liberty National Bank, 534 F.2d 1335 (9th Cir.1976), Bechtel asserted that the New Mexico bank waived its venue privilege:

“by negotiating the earnest money con- ' tract in Arizona, instituting forfeiture and receivership proceedings in Arizona, and obtaining judgment on Bechtel’s promissory note in an Arizona court.” 534 F.2d at 1339-1340.

Even though the New Mexico bank was quite active in Arizona, the court held that there was no waiver of the venue privilege and the bank could only be sued in the proper district in New Mexico:

“We simply cannot accept the proposition that the bank’s limited use of the Arizona judicial process in the forfeiture and receivership proceedings evidenced such an intent, [citations omitted]. Neither can we believe that the negotiation in Arizona of an earnest money agreement for the sale of Arizona land, or the bank’s suit to recover on Bechtel’s personal note deprived the bank of its congressionally conferred right to be sued only in its home county.” 534 F.2d at 1340.

The commission of a tort or the entering into a contractual arrangement in a foreign district have both been held to be insufficient to imply an intention to waive the venue privilege. See, Exchange National Bank of Chicago v. Rotocast Plastics Products, Inc., 341 So.2d 787 (Fla. 3d DCA 1977); Northside Iron and Metal Co. v. Dobson and Johnson, Inc., 480 F.2d 798 (5th Cir.1973); Landmark Bank of West Broward, N.A. v. Giroux, 358 So.2d 180 (Fla.1978). See also, Nevada National Bank v. Superior Court, 45 Cal.App.3d 966, 119 Cal.Rptr. 778 (1975) and Sulil Realty Corp. v. Rye Motors, Inc., 45 Misc.2d 458, 257 N.Y.S.2d 111 (Westchester County Court 1965).

In those cases where a waiver of the venue privilege has been found, the bank’s activities in the foreign district have been quite extensive. Thus, in Helco Inc. v. First National City Bank, 333 F.Supp. 1289 (D. St. Thomas and St. John 1971), the bank advertised extensively in the Virgin Islands and competed with the local banks. In Michigan National Bank v. Superior Court, 23 Cal.App.3d 1, 99 Cal.Rptr. 823 (1972), in a suit for conversion of an airplane, the plane was purchased and housed in California, all relevant documents were executed and performed in California, and the bank resorted to self-help in California to enforce its security.

The burden of proving a waiver of the venue privilege is on the party arguing that the waiver exists. In the case before us the extent of the appellee’s allegations and proof is that Bank owned property in Orlando. The essence of appellee’s argument on appeal is that Bank waived its venue privilege by conducting a land investment business in Orlando but there is no pleading, nor was there any proof adduced in the lower court, to support such a contention. Appellee’s assertion of waiver, therefore, is based solely on the unexplained ownership of the land by the bank in Orlando. Consistent with the many authorities cited, we hold that such an allegation, even if proved, does not support a manifest intention by Bank to relinquish its congres-sionally granted right to be sued in the district in which it is established.

Although we agree that the historical purpose of the bank venue statute has well outlived its usefulness as indicated in Northside Iron and Metal Co. v. Dobson and Johnson Inc., supra, we are compelled to reason that if such statute is to be repealed, the Congress of the United States is the only body which has the authority to do so.

Accordingly, the trial court’s order denying appellant’s motion to dismiss for improper venue is REVERSED and this cause REMANDED with instructions to grant said motion.

REVERSED and REMANDED.

ALDERMAN, C. J., and DOWNEY, J., concur.


text:
    Eileen M. BRENNAN, Petitioner, v. PAUL BARABAS INTERIORS, Respondent.
    No. 77-2612.
    District Court of Appeal of Florida, Fourth District.
    April 10, 1978.
    James V. Dolan of Dolan, Denman & Gramling, P. A., Fort Lauderdale, for petitioner.
    No appearance for respondent.
   PER CURIAM.

We find that the petitioner, Eileen M. Brennan, did not receive timely notice of a hearing to determine her right to unemployment compensation benefits. After her counsel filed a notice of appearance and a written request that any notice of hearing be directed to counsel, the Department of Commerce scheduled a hearing without notifying counsel. A copy of the notice was sent to the petitioner’s home address, but it is undisputed that the petitioner was away from her residence at the time the notice was sent through the time of the subsequent hearing. When a default order was received by the petitioner, her counsel sought a rehearing on the grounds set out above. The rehearing was denied. Since there was a written request for notice to counsel in the Department’s file at the time the notice was sent to the petitioner’s residence, we believe she is entitled to a new hearing. Accordingly, the petition for writ of certiorari is granted; and the decision of the Department of Commerce Board of Review is quashed with directions for further proceedings consistent with this opinion.

ALDERMAN, ANSTEAD and MOORE, JJ., concur.


text:
    Stephen R. SONSON, Appellant, v. Robert L. NELSON, Samuel Martin Fishbein and Albert Barthelemy, Appellees. Robert L. NELSON, Samuel Martin Fishbein and Albert Barthelemy, Appellants, v. Stephen R. SONSON, Appellee.
    Nos. 76-2330, 76-2368.
    District Court of Appeal of Florida, Third District.
    April 11, 1978.
    Rehearing Denied May 12, 1978.
    James F. Pollack, Goodwin, Ryskamp, Welcher & Carrier, Miami, for Stephen R. Sonson.
    Horton, Perse & Ginsberg, Donald M. Coon, Miami, for Nelson, Fishbein and Bar-thelemy.
    Before PEARSON, NATHAN and HUB-BART, JJ.
   PER CURIAM.

The defendant has appealed and the plaintiffs have cross-appealed from an order granting a new trial in an action by the plaintiffs, Robert L. Nelson, Samuel Martin Fishbein and Albert Barthelemy, for assault and false imprisonment. After a three day trial, four separate jury verdicts were rendered. One verdict exonerated the defendant’s insurer. The other verdicts assessed no compensatory damages for any of the plaintiffs but did assess punitive damages as follows: for plaintiff Fishbein, $7,000; for plaintiff Barthelemy, $2,000; and for plaintiff Nelson, $3,000. The defendant moved for a new trial and for a directed verdict in his favor. The court determined that the verdicts were defective and granted a new trial on the following grounds:

“ . . . the Court . . . finds that the verdicts entered in the cases of Plaintiffs, Robert L. Nelson, Samuel Martin Fishbein and Albert Barthelemy against Defendant, Stephen R. Sonson, are defective verdicts and the jury having been discharged, it is therefore the order of this Court that a new trial in the aforesaid cases is hereby granted and ordered.”

The defendant’s appeal urges that the trial court should have entered judgment for the defendant on the verdicts because a verdict awarding punitive damages without compensatory damages in an assault case is not proper. The plaintiffs urge that the trial court should have entered a judgment in their favor because it was proper for the jury to award punitive damages even though no compensatory damages were awarded.

The Supreme Court of Florida has recently held that a jury verdict awarding nominal damages will support an award of punitive damages. See Lassitter v. International Union of Operating Engineers, 349 So.2d 622 (Fla.1976).

Turning first to the appeal of the defendant, we note that under the doctrine of invited error, the defendant may not move for a new trial and then assign as error the court’s order granting a new trial. See Rubin v. Gordon, 165 So.2d 824 (Fla.3d DCA 1964); and Seaboard Coast Line Railroad Co. v. Hendrickson, 212 So.2d 901 (Fla.2d DCA 1968).

The appeal of the plaintiffs is likewise without merit because the argument that the Lassitter decision allows no punitive damage judgment without at least nominal compensatory damages is supported by the Lassitter decision. In Lassitter, it was held as follows:

“The terms compensatory and actual damages have been used interchangeably by the courts in dealing with the problem at hand. This probably stems from the language in McLain v. Pensacola Corp., 152 Fla. 876, 13 So.2d 221 (1943), approving and applying the following quotation from 4 Am.Jur. 219:
‘The general rule that exemplary or punitive damages are not recoverable in an action of tort unless actual damages are shown finds application in cases of assault and battery.’ 13 So.2d at 222.
“The Court in McLain, supra, held that the failure to submit the issue of punitive damages to a jury was not ground for reversal where the jury found no liability on the underlying cause of action, because an action for punitive damages cannot be maintained independently of an action for compensatory damages. The term ‘unless actual damages are shown’ was used in McLain as synonymous with ‘unless liability is shown on the underlying cause of action.’ 13 So.2d at 222.
“In a suit for slander the First District Court held that ‘nominal’ damages are ‘actual’ damages for the purpose of supporting an award of punitive damages. Elyria-Lorain Broad. Co. v. National Com. Indus., Inc., 300 So.2d 716 (Fla.1st DCA 1974), cert. discharged; National Com. Indus., Inc. v. Elyria-Lorain Broad. Co., 337 So.2d 809 (Fla.1976). Some jurisdictions hold to the contrary. 22 Am. Jur.2d Damages § 242 and cases collected thereunder.
“Nominal damages are awarded to vindicate an invasion of one’s legal rights where, although no physical or financial injury has been inflicted, the underlying cause of action has been proved to the satisfaction of a jury. See, for example, Tampa Electric Co. v. Ferguson, 96 Fla. 375, 118 So. 211 (1928); Williams v. Atlantic Coast Line R.R. Co., 56 Fla. 735, 48 So. 209 (1908); Lampert v. Judge and Dolph Drug Co., 238 Mo. 409, 141 S.W. 1095 (1911). Accordingly, the establishment of liability for a breach of duty will support an otherwise valid punitive damage award even in the absence of financial loss for which compensatory damages would be appropriate.”

The issue of nominal damages not having been submitted to the jury, the trial court properly granted a new trial.

We, therefore, conclude that neither the defendant nor the plaintiffs have shown reversible error and the order granting a new trial must-be affirmed.

Affirmed.

NATHAN, J., concurs in the result only.


author: PEARSON, Judge.

text:
    CITY OF HOMESTEAD, Appellant, v. RANEY CONSTRUCTION, INC., Appellee.
    No. 77-1624.
    District Court of Appeal of Florida, Third District.
    April 11, 1978.
    Sams, Anderson & Ward and R. Thomas Farrar, Miami, for appellant.
    Ruden, Barnett, McClosky, Schuster & Schmerer and William H. Lefkowitz, Fort Lauderdale, for appellee.
    Before PEARSON, HUBBART and KE-HOE, JJ.
   PEARSON, Judge.

Defendant, City of Homestead, appeals a partial summary judgment finding the City liable for damages on an alleged contract between the City and a general contractor for the construction of a swimming pool. The City does not urge that the partial summary judgment is barred by a genuine issue of material fact, but rather that the facts presented to the trial judge show, as a matter of law, that the City Council was without authority to enter into the contract alleged, and that the claimed contract was, in fact, unlawful.

Discussions by the City Council about letting bids for construction of a municipal swimming pool began as early as July, 1975. On August 18, 1975, the City Council decided to hire an engineering firm to design a proposed olympic-sized pool. In November, 1975, the City Council unanimously voted to let bids in order to find out how much the pool would cost and invitations to bid on the construction of the pool were published.

On November 28, 1975, the bids were opened at a City Council meeting and referred to the City Manager, purchasing agent and engineers for analysis and recommendations. At an adjourned meeting of the City Council on December 3, 1975, the City Manager reported that the low bid was from Raney Construction, Inc., the appellee herein.

After discussion and the failure of a motion to postpone action, Councilman Glenn, seconded by Councilman Rutzke, made the following oral motion:

“I move that we accept the recommendation of the City Manager and his committee to build the swimming pool award it to Raney Construction Co. that construction will start after Feb. 12 or the bicentennial exercises being held at Harris Field and that the Rodeo grounds be restructured and moved at the expense of the City. And that the money be derived from the Federal Revenue Sharing that will be coming into the General Fund of Jan. 1 of approximately 106,000.00 and the bond issue of 130,000.00 and that we take the next six months revenue sharing at the end of January first or July 1 or January 30, 1976 and that the remainder of the money would come from the surplus fund of the City.”

Dr. House (a councilman) objected on the ground that the swimming pool contract should not be awarded by an oral motion. He made a final appeal to the Council to reconsider. The motion carried by a vote of four to three.

On December 5, 1975, the engineers advised Raney by letter that the City Council had authorized acceptance of Raney’s bid. The authorization was expressly conditioned upon notice to proceed not being issued prior to February 12, 1976. On December 8, 1975, Raney and the then Mayor of the City, Fred Rhodes, signed the contract which is the subject of this action. The City Clerk attested the signature and the City Attorney approved the contract as to form.

In connection with the signing, the City Manager personally spoke with Mr. Stanley Raney of Raney Construction, Inc., and advised him that there had been considerable controversy at the City Council meeting of December 3,1975, at which the City Council by a one vote margin voted to authorize acceptance of the Raney bid. Mr. Raney was specifically advised that the procedure by which the authorization was made had been questioned by certain members of the City Council. The City Manager also advised Mr. Raney not to proceed without further authorization from the City Manager’s office.

Notwithstanding these instructions by the City Manager, on December 10, 1975, Mr. Stanley Raney went to the Miami offices of Fidelity and Deposit Company of Maryland where he arranged for the performance bond called for by the construction agreement. No payments were made by Raney with respect to the bond, however, and no other costs and expenses were incurred by Raney.

On December 9,1975, elections were held in the City of Homestead. As a result, two Council members were not re-elected and Dr. House replaced Fred Rhodes as Mayor.

On December 10, 1975, the City Manager again advised Mr. Stanley Raney by telephone that in view of the general attitude of the City Council concerning the swimming pool question, and to avoid further complications, there was a possibility the contract might be re-examined. Mr. Raney was to advise the City Manager of the position of Raney Construction regarding re-examination or termination of the contract. On December 12, 1975, the City Manager wrote Raney to the same effect.

At the City Council meeting of December 15, 1975, the swimming pool matter was again discussed. The City Manager advised the Council that the $572,000 bid had been awarded and the contract signed, although no order to proceed had been given. Councilwoman Campbell pointed out that the motion by which construction was approved failed to provide for all the funds necessary to build the project, and that funding of the pool was expected to come up $250,000 short of the quoted bid. Mayor House said that at the time the bid was awarded, he made objection and said he thought the proceedings were improper.

On January 5,1976, the City Council again met and considered the swimming pool question. The City Attorney prepared, and the City Council passed, a resolution which rescinded the swimming pool contract due to improprieties in the manner under which it was awarded, including, but not limited to, the fact that the bid was awarded by motion rather than resolution, and that the monies were not appropriated by resolution.

By letter of January 13, 1976, Raney was advised that the City had determined the contract to have been improperly awarded, and that notice to proceed with the construction agreement would not be forthcoming.

On these facts, the trial judge determined that a contract came into existence and that the plaintiff, Raney Construction, was entitled to damages as a matter of law.

The City’s appeal offers two reasons for its position that no contract came into existence. First, it is urged that it was unlawful for the mayor to execute the contract because the action required authorization by letter, an ordinance or a written resolution. The City cites the following provision of its City Code:

“Whenever it shall be necessary for the city, under the authority of its city council, its Charter and the general law of the state, to execute contracts, deeds, leases, promissory notes or other instruments in writing on behalf of the city, such contract, deed, lease, promissory note or other instrument in writing shall be executed by the mayor on behalf of the city and attested by the city clerk, who shall place thereon the seal of the city. In case any instrument so executed shall be required to be acknowledged, it shall be the duty of the mayor of the city to make proper acknowledgment of such instrument before an officer authorized to take acknowledgments. It shall not, however, be lawful for the mayor of the city to execute or for the clerk thereof to attach the corporate seal of the city to any contract, deed, lease, promissory note or other instrument in writing without authority so to do granted by ordinance or resolution of the city council, properly entered in the minutes of the council, authorizing the execution and attestation of such instrument. Nothing in this section shall, however, be construed to require the execution of the bonds of the city in any other manner than that provided for by law and the Charter of the city. (Code 1958, § 2-4.)” [Emphasis supplied by appellant]

The question then is whether this provision of the Code has the force of law so that an action of the City taken on motion is void. The general rule with respect to the mode by which a municipal contract must be authorized is stated in McQuillin, The Law of Municipal Corporations (3d ed. 1966).

* * * * * *
“And where the applicable laws have authorized a municipality to make a contract but do not require it to be done by ordinance, the legislative body of the municipality may contract by vote upon a motion, or by passage of a resolution.” (Revised Vol. 10, § 29.19)

This general law has been recognized in Haskins v. City of De Soto, 35 S.W.2d 964 (Mo.App.1931). We know of no holding to the contrary in this state. It is apparent that the City Code of the City of Homestead does not have the status of “applicable law.”

In Dedmond v. Escambia County, 244 So.2d 758 (Fla. 1st DCA 1971), the court was faced with a fact pattern somewhat similar to the present one in that the board of commissioners had advertised a proposed lease and accepted plaintiff’s bid, then sought to rescind its motion. It was held that a binding contract existed. The court, in so holding, quoted from State ex rel. Wadkins v. Owens, 62 So.2d 403 (Fla.1953), where the Supreme Court said:

******
“Fair dealing is required by all parties and public officials should set the example. There is no question raised in this proceeding of any concealment, fraud, collusion or any other misconduct on the part of the appellant and the appellees should have been required to comply with the plain and unmistakable provisions of the law.”

In Berry v. Okaloosa County, 334 So.2d 349 (Fla. 1st DCA 1976), the court held a county board could rescind its action in awarding a contract at the same meeting where it was awarded. But the clear import of the decision was that a binding contract did come into being with the acceptance of a bid unless the action was rescinded at the same continuous meeting.

We hold that the City Code requiring a resolution of the City Council did not invalidate the contract which was completed and the plaintiff notified of its acceptance. The City, because of a change in the personnel of the Council, ought not be allowed to use the technicality of the direction provisions of its code to defeat the contract that came into being with the acceptance of plaintiff’s bid.

The second aspect of the City’s position is that because a fair reading of the City Code called for all actions of the City Council which required the expenditure of public money to be by resolution, a person dealing with the City must, at his peril, inquire into the power of the municipality and its officers to make the contract contemplated. See Ramsey v. City of Kissimmee, 139 Fla. 107, 190 So. 474 (1939). The cited case holds that where the City Council did not take any vote on adoption of the contract submitted to the contractor, a purported contract signed by the mayor-commissioner would not be enforced. It is certainly true that the completion of the contract in the instant case would have required the appropriation of money. Does it follow then that the contract itself must be approved with the formality required for the appropriation of money? We think not. Appropriations of money are separate from the entering of contracts by the City. An appropriation is not considered a condition precedent to the validity of a contract by a city. See the principle of law in Simpson v. City of Highwood, 372 Ill. 212, 23 N.E.2d 62 (1939); Izzo v. City of Loves Park, 20 Ill.App.2d 117, 155 N.E.2d 312 (1959); and De Leuw, Cather & Co. v. City of Joliet, 327 Ill.App. 453, 64 N.E.2d 779 (1946). It would doubtless be wise for a city council to make sure that the money is available before contracting for expenditures, but such wisdom is not always evident in public or private contracts. If the sins of the fathers are visited upon the sons, then it is not unnatural that the mistakes of elected officials are visited on the electors.

Affirmed.

      . This motion was Councilman Glenn’s best recollection of the same motion he made earlier in the meeting to the effect that:
      “I’d like to move to approve the construction of the swimming pool and award the bid to Raney Construction for $572,930.00. Construction not to commence until after Feb. 12, this would be the completion of the bicentennial, and that the location of the pool would be at the Harris Field complex in the vicinity of the rodeo grounds and that the rodeo grounds be restructured and replaced at the cost of the city adjacent to the swimming pool complex, and that the money be taken from the bond issue of $130,000.00 and from the $106,000.00 revenue sharing is to come in January first to be placed in the surplus . ”


text:
    EXCHANGE INVESTMENT CORPORATION, Appellant, v. FARM STORES INTERNATIONAL CORPORATION et al., Appellees.
    No. 77-1730.
    District Court of Appeal of Florida, Third District.
    April 11, 1978.
    Rehearing Denied May 8, 1978.
    Gus Efthimiou, Jr., Miami, for appellant.
    Mershon, Sawyer, Johnston, Dunwody & Cole and James M. McCann, Jr., Miami, for appellees.
    Before PEARSON, HUBBART and KE-HOE, JJ.
   PER CURIAM.

The record and briefs having been duly considered and no error appearing, the Order of Dismissal is affirmed.


author: BOARDMAN, Chief Judge.

text:
    Raymond Louis BRESCIANI and Connie L. Bresciani, husband and wife, Appellants, v. Dennis E. O’BRIEN et al., Appellees.
    No. 77-1466.
    District Court of Appeal of Florida, Second District.
    April 12, 1978.
    Rehearings Denied May 10, 1978.
    Ronald A. Cyril and Leslie Telford, of Nelson, Hesse, Cyril, Weber & Sparrow, Sarasota, for appellants.
    Patrick J. Murphy, of Crabtree, Butler, Syprett & Meshad, Sarasota, for appellees Palmer First Nat. Bank and Trust Co. and Hartford Accident and Indem. Co.
    Jeffrey G. Wood, of Livingston, Patterson & Wood, Sarasota, for appellee Southeast First Nat. Bank of Sarasota.
   BOARDMAN, Chief Judge.

Appellants/plaintiffs, Raymond Louis and Connie L. Bresciani, appeal a final summary judgment entered in favor of appel-lees/defendants, Palmer First National Bank and Trust Co. of Sarasota (Palmer), Hartford Accident and Indemnity Co. (Hartford), and Southeast First National Bank of Sarasota (Southeast) in a personal injury action. Hartford was Palmer’s liability insurance carrier. Southeast purchased the assets of Palmer in January 1976. The complaint alleged that Palmer was the owner of an automobile negligently driven by appellee/defendant Dennis O’Brien, causing injuries to Raymond Bres-ciani on July 13, 1975. In their motion for summary judgment Palmer and Hartford stated that there was no genuine issue as to any material fact and that at the time of the accident it “was nothing more than a secured lien holder in said automobile. Southeast also moved for summary judgment stating that there was no fact issue to be resolved as to the ownership. The trial court granted the motions.

It cannot be said that the evidence relating to the critical issue of whether Palmer was the beneficial owner of the vehicle is not in dispute, and therefore, a material fact has not been resolved. Consequently, this issue should not have been determined by a summary judgment. See, e. g., Register v. Redding, 126 So.2d 289 (Fla.1st DCA 1961). Accordingly, the summary judgment is reversed and this cause remanded for proceedings consistent with this opinion.

REVERSED and REMANDED.

HOBSON and OTT, JJ., concur.


author: MILLS, Judge.

text:
    Thomas G. FOXX, Appellant, v. Frances G. FOXX, Appellee.
    No. HH-159.
    District Court of Appeal of Florida, First District.
    April 14, 1978.
    Rehearing Denied May 15, 1978.
    John Peter Kirtz, Jr., Pensacola, for appellant.
    Richard H. Merritt and Thomas E. Johnson of Merritt & Johnson, Pensacola, for appellee.
   MILLS, Judge.

Mr. Foxx appeals from a final judgment in a dissolution of marriage action contending the trial court erred in awarding Mrs. Foxx the home and the household furnishings of the parties as partial lump sum alimony. We agree and reverse.

Mrs. Foxx did not allege a claim for lump sum alimony in her petition or the amendments thereto. There being no claim for lump sum alimony, the court had no authority to award Mrs. Foxx lump sum alimony.

The judgment recites that the parties agreed in their testimony that Mrs. Foxx be awarded the household furnishings. This is incorrect and is unsupported by the record. In fact, the record furnished us clearly shows that no such agreement was made by the parties.

The record reflects that the parties have no children, they are both healthy, employed and occupy similar financial positions except Mrs. Foxx earns slightly more weekly than Mr. Foxx. Under these circumstances, the record does not support an award of lump sum alimony. Cummings v. Cummings, 330 So.2d 134 (Fla.1976).

We reverse that part of the final judgment awarding Mrs. Foxx the home and the household furnishings and remand this case to the trial court for the entry of a judgment consistent with the views expressed above.

BOYER, Acting C. J., concurs.

BOOTH, J., dissents.


text:
    Linda S. McWHORTER, Appellant, v. Marc S. McWHORTER, Appellee.
    No. 77-432.
    District Court of Appeal of Florida, Fourth District.
    April 18, 1978.
    Donald G. Procter, Jr., Pompano Beach, for appellant.
    James A. Week of Week & Stone, P. A., Pompano Beach, for appellee.
   PER CURIAM.

We find inadequate support in the record for the modification of the child support provisions of the Final Judgment of Dissolution. Accordingly, the order appealed from is reversed and the cause remanded with directions to reinstate the child support provisions of the Final Judgment.

REVERSED AND REMANDED with directions.

DOWNEY, ANSTEAD and DAUKSCH, JJ., concur.


text:
    Thomas M. WIESE, Appellant, v. STATE of Florida, Appellee.
    No. 77-1555.
    District Court of Appeal of Florida, Fourth District.
    April 18, 1978.

      Bruce E. Wagner, of Berk, Wagner & Montante, Fort Lauderdale, for appellant.
    Robert L. Shevin, Atty. Gen., Tallahassee, and Charles A. Stampelos, Asst. Atty. Gen., West Palm Beach, for appellee.
   DOWNEY, Judge.

Appellant seeks reversal of his conviction for the offense of robbery with a firearm in violation of Section 812.13, Florida Statutes (1975) and sentence of twenty years imprisonment.

The alleged heist was perpetrated by appellant and four others, Keller, Tatton, Smith and Romano. The evidence showed that Keller and Tatton robbed a pharmacy at gunpoint. Appellant and Smith remained outside the pharmacy in two getaway cars. The robbery had been planned several days in advance while the participants were staying in a motel. Appellant took the stand and admitted that he participated in the robbery but contended he was coerced into participation by Keller, the heavy in the gang. In addition appellant claimed he was high on drugs at the time of the incident.

The judicial errors asserted by appellant are 1) the court’s failure to make a full inquiry into the circumstances surrounding failure of the State to comply with appellant’s demand for discovery, 2) the court’s failure to grant a mistrial when a State witness testified he had taken a polygraph test, and 3) the court’s failure to grant a directed verdict or new trial because the evidence was overwhelming that appellant did not have the requisite intent.

We summarily reject the second and third ground for reversal. The evidence of a polygraph test was brought out by a line of questioning persisted in by appellant’s counsel and thus, at worst, if error, it was invited. However, we do not believe it was error because the results of the polygraph test were not divulged nor could the results thereof have been necessarily inferred. Johnson v. State, 166 So.2d 798 (Fla. 2d DCA 1964). Regarding the sufficiency of the evidence to justify the verdict, we find it adequate.

The most serious point on appeal is based upon the State’s alleged failure to furnish all statements in its possession pursuant to discovery rule Fla.R.Crim.P. 3.220.

From a review of the evidence adduced at trial from the State’s witness Smith and the colloquy between the court and counsel out of the presence of the jury, it appears that Smith, his parents, his lawyer, a Vero Beach detective and an Assistant State Attorney had a conference on January 11, 1977. The subject of the discussion was whether Smith would give the State a statement under oath regarding what he knew of the alleged robbery. The conference was taped. One week later on January 18,1977, Smith gave a written statement under oath. Sometime after the original conference the aforementioned tape was re-used, which destroyed the dialogue which took place at the earlier conference.

During the progress of the case pursuant to a Fla.R.Crim.P. 3.220 demand the State produced, among other things, Smith’s sworn statement which implicated appellant in the robbery. However, no mention was made of the taped conference at the police station.

While Smith was testifying at trial counsel for appellant first became aware of the taped conference. Thus, he interrogated Smith concerning the circumstances of that meeting. Smith testified, in substance, that he was told that if he would agree to make a statement he could go home with his parents and he would not be indicted as an adult. Further, he said that he implicated himself, the appellant and all of the others in the robbery. He stated that when he gave his sworn statement a week later the same people were present. So it appears from Smith’s testimony that on both occasions he implicated appellant and the other four participants in the robbery. Defense counsel then asked Smith if he remembered telling counsel that he wasn’t positive appellant was behind the wheel of the getaway car. Smith conceded he said that and that he really was not sure, because both appellant and Keller had long blonde hair and Smith only saw the driver from across the street. Counsel then asked him, “But you don’t actually know it was [appellant] in the car?” Smith answered, “No sir.” Then counsel obtained the concession from Smith that in his statement he told the State Attorney and police what he thought they wanted to hear so that he could get immunity and would not have to go to jail. Smith acknowledged he would have “said almost anything to save [his] own skin so [he] wouldn’t have to go to jail.”

All of the foregoing examination of Smith took place in the presence of the jury. Counsel for appellant then had the jury excused and moved to strike Smith’s testimony because the State violated the discovery rule by not furnishing him with Smith’s first taped statement or conference. As a result of the colloquy between counsel and the court the court found there was no impropriety in the destruction of the tape.

It seems to us that the totality of the information furnished to the court by way of Smith’s testimony before the jury relative to the original conference or statement, together with the colloquy with counsel outside the presence of the jury, fulfilled the requirements of Richardson v. State, 246 So.2d 771 (Fla.1971), and Cumbie v. State, 345 So.2d 1061 (Fla.1977), that the court make adequate inquiry into the surrounding circumstances to determine that the defendant has not been prejudiced by a violation of the discovery rule. The inquiry demonstrated that what transpired at the first conference or statement, such as it was, was consistent with appellant’s subsequent written statement and thus the State carried its burden to show lack of prejudice. Of course, it would have been helpful had the trial court required the Assistant State Attorney or some other person present at the first conference or statement to testify as to what transpired there to corroborate Smith’s statement that he implicated all five individuals in both statements.

Since the value to appellant of Smith’s first statement at the original conference lay in its possible impeachment effect on Smith’s written statement, it is noteworthy that Smith was well impeached by defense counsel. Smith categorically admitted he told the police the story he thought they wanted to hear in order to improve his own position, and that he was not sure that appellant was driving the getaway car.

In other ways the record in this case demonstrates appellant was not prejudiced by the absence of the original tape. Keller pleaded guilty and gave a statement implicating appellant and appellant took the stand and testified that he participated in the robbery, albeit he claimed under coercion from Keller and the influence of drugs.

Accordingly, we affirm the judgment and sentence appealed from.

AFFIRMED.

CROSS and DAUKSCH, JJ., concur.

      . Richardson v. State, supra, and Cumbie v. State, supra. To the extent that Ludwick v. State, 336 So.2d 701 (Fla. 4th DCA 1976) indicates the burden of proof to show prejudice is upon the defendant we recede therefrom.

      . In Sobel v. State, 349 So.2d 747 (Fla. 3rd DCA 1977), the court held that, since the tape was destroyed, due process required the conviction be reversed even though the officer who destroyed the tape testified that he did so because the tape contained only indistinct sounds and static. We feel due process requirements can be met where a showing is made that the contents of the lost or destroyed tape would not have been beneficial to the accused thus demonstrating a lack of prejudice. See State v. Smith, 342 So.2d 1094 (Fla. 2nd DCA 1977).