text:
    Evaret CLARK, Appellant, v. The STATE of Florida, Appellee.
    Nos. 77-301 and 77-377.
    District Court of Appeal of Florida, Third District.
    Jan. 31, 1978.
    Rehearing Denied June 28, 1978.

      Bennett H. Brummer, Public Defender and Warren S. Schwartz, Asst. Public Defender and Harold Long, Jr., Sp. Asst. Public Defender, Miami, for appellant.
    Robert L. Shevin, Atty. Gen., and Joel D. Rosenblatt, Asst. Atty. Gen., for appellee.
    Before HAVERFIELD, C. J., and HEN-DRY and KEHOE, JJ.
   PER CURIAM.

Evaret Clark appeals his convictions for possession of cannabis and 10 counts of receiving stolen property, and an order revoking his probation as a. result of these convictions.

Clark was convicted on the basis of evidence seized from his home pursuant to the issuance of a search warrant based upon the affidavit of James Evans, a private citizen. Prior to his combined non-jury trial and revocation of probation hearing, Clark moved to suppress the evidence seized and after a hearing, the court denied the motion to suppress. Clark was convicted and his probation revoked. These consolidated appeals from the convictions and revocation of probation order ensued.

Clark first contends the trial court erred in denying his motion to suppress because the search warrant was invalid since it was based on the affidavit of James Evans who was not credible. Clark argues that Evans was unworthy of belief because of his previous arrests and the failure of the police to inform Judge Knuck, who issued the warrant, of Evans’ past thereby precluding the Judge from properly evaluating Evans’ reliability. We cannot agree.

Any argument to the effect that by virtue of his prior convictions, affiant Evans is unworthy of belief as a matter of law is erroneous and contrary to Section 90.08, Florida Statutes (1975).

Also we are not persuaded by Clarks’ argument that under the circumstances Judge Knuck could not properly evaluate Evans’ reliability and would not have issued the search warrant because he was not advised of all Evans’ prior convictions. The record reflects that Judge Knuck was aware that Evans was incarcerated at the time in the county jail and he had been in trouble with the law on previous occasions. Although he was not aware of the extent of Evans’ criminal record; nevertheless, he still may have issued the warrant had the full record been before him. Moreover, the fact that Evans admitted to his own criminal participation in the affidavit is an indicia of his reliability and credibility. Cf. U. S. v. Harris, 403 U.S. 573, 91 S.Ct. 2075, 29 L.Ed.2d 723 (1971); U. S. v. Barfield, 507 F.2d 53 (5th Cir. 1975). Finally, we note that Clark failed to establish that the facts set forth in Evans’ affidavit are incorrect or insufficient. Cf. State v. Knapp, 294 So.2d 338 (Fla. 2nd DCA 1974). Thus, there was adequate probable cause to issue the warrant.

Clark next contends that the court erred in adjudicating him guilty of possession of cannabis where such unlawful possession was not proven to the exclusion of and beyond a reasonable doubt since no evidence was introduced at trial as to his knowledge of the presence of cannabis or as to his ability to control cannabis. We find this point well taken.

The established law is that if the premises on which the drugs are found is not in the exclusive but only in the joint possession of the accused, knowledge of the drug’s presence on the premises and the ability to maintain control over it by the accused will not be inferred but must be established by proof. Harris v. State, 307 So.2d 218 (Fla. 3d DCA 1974).

In the case at bar the evidence reflected that the cannabis was found in a handball container located in a dresser drawer in the bedroom occupied by Clark and his wife. This evidence is clearly circumstantial and insufficient for conviction in that it fails to exclude every reasonable hypothesis of Clark’s innocence. See Harris, supra, and Willis v. State, 320 So.2d 823 (Fla. 4th DCA 1975). We, therefore, reverse the conviction and sentence for unlawful possession of cannabis.

In light of our holding the search warrant valid, the conviction of receiving stolen property and the order revoking Clark’s probation are affirmed.

Affirmed in part, reversed in part.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    HO YIN WONG, Appellant, v. The STATE of Florida, Appellee.
    No. 77-112.
    District Court of Appeal of Florida, Third District.
    Feb. 28, 1978.
    As Corrected On Rehearing May 8, 1978.

      Bennett H. Brummer, Public Defender and Elliot H. Scherker, Asst. Public Defender, for appellant.
    Robert L. Shevin, Atty. Gen. and Joel Rosenblatt, Asst. Atty. Gen., for appellee.
    Before HAVERFIELD, C. J., and HEN-DRY and NATHAN, JJ.
   PER CURIAM.

Appellant, defendant below, appeals from a judgment of conviction entered pursuant to a jury verdict of guilty on charges of possession and importation of cannabis. Appellant’s sole defense at trial was that he was unaware that a straw bag he brought into this country after a foreign vacation contained cannabis. The three issues on appeal all center around the testimony of a single witness, an airport police officer, whose testimony was crucial to the establishment of appellant’s guilty knowledge of this fact.

Appellant first contends that the trial court erred in restricting defense counsel’s attempts to impeach the credibility of the witness. It is well settled that control of the scope of cross examination lies with the trial judge and is not subject to review except for a clear abuse of discretion. See Baisden v. State, 203 So.2d 194 (Fla. 4th DCA 1967) and cases cited therein. The record reveals that a wide range of cross examination was permitted, and that considerable impeachment material was adduced. Therefore, we find no such abuse of discretion as would warrant a finding of reversible error.

Appellant next asserts there was error in the trial court’s allowing the prosecution to bolster the credibility of its key witness by the use of a prior consistent statement. While it is true that the general rule is that prior consistent statements are inadmissible to rebut impeachment based on prior inconsistent statements, this general rule is not applicable in a situation, such as that herein at issue, in which there is controversy over whether the witness did, in fact, utter a self-contradiction. See Kellam v. Thomas, 287 So.2d 733 (Fla. 4th DCA 1974).

Finally, appellant contends that the trial court erred in refusing to order the state to correct “false” testimony which it elicited on redirect from this key witness. The nature of this allegedly false testimony is crucial, for if the record supported the allegation that the state refused to correct false testimony which bore upon the officer’s credibility, this would constitute reversible error. Napue v. Illinois, 360 U.S. 264, 79 S.Ct. 1173, 3 L.Ed.2d 1217 (1959); Miller v. Pate, 386 U.S. 1, 87 S.Ct. 785, 17 L.Ed.2d 690 (1967); Giglio v. United States, 405 U.S. 150, 92 S.Ct. 763, 31 L.Ed.2d 104 (1972). But the testimony at issue did not sink to the level of deliberate falsehood, nor can we conclude that the prosecution knowingly pried untruths from the witness. In fact, the record reveals that defense counsel vigorously exploited the differences between the officer’s testimony on deposition and his testimony at trial, and by defense counsel’s considered omission from evidence of the deposition itself, contributed to any defect now asserted.

Specifically, appellant contends that at trial, the officer testified that appellant had confessed while he and the officer were alone, whereas on deposition, the same witness testified that appellant had made incriminating statements in the presence of others. Appellant argues that the prosecutor elicited a declaration from the officer that his deposition had also contained testimony which showed that he had interrogated appellant when alone with him, when the prosecutor knew his deposition contained no such testimony.

Review of the record reveals considerable confusion regarding the points in time at which the incriminating statements were alleged to have been made by appellant. It is important to note that more than one statement was being discussed at trial. The statements at issue when the officer was deposed were among these. The officer’s deposition did not show that appellant made incriminating statements while alone with the officer, for no questions were asked which would have elicited such testimony. It did indicate that the officer had transported appellant from the customs office where the first incriminating statements were made.

Counsel for the defense exerted prodigious efforts to use the discrepancy between the officer’s testimony at deposition and his testimony at trial to impeach his credibility. During the course of these impeachment efforts the prosecution objected to a question asked by defense counsel and asked that the defense “move in the entirety of the deposition.” Such request is patently inconsistent with any refusal to correct false testimony deliberately elicited.

More importantly, the trial judge inquired of defense counsel regarding the relevancy of his repeated attempts on re-cross to have the witness show where in his deposition any statement existed showing that he had interrogated appellant privately. Defense counsel responded that the reason he wanted the witness to specify such statement in the deposition was “because the prosecutor was allowed to state, ask him, over objection, if it was in there.” Whereupon the court asked if defense counsel sought to introduce the deposition into evidence. The response was negative. “At this time, no, I am not seeking to introduce the document.” Nor was the deposition ever introduced, although the court marked it as an exhibit of the court “for purposes of whatever you wish. . . . ”

It is true that questioning by the prosecution elicited a response which was false. It is equally true that no deliberate attempt to insert false evidence appears, for the prosecution was more than willing, it was eager, to have the entire deposition introduced into evidence. The defense chose to extract as much impeachment value from the discrepancy between the witness’ deposition and his in-court testimony as it could, and deliberately chose not to introduce the document into evidence though given every opportunity to do so.

The law does not demand that every defendant have a perfect trial. It does demand a fair trial. We conclude that this standard was met in this case. If any material fact was left undisclosed, it was because the defense chose to have it so. Having declined to present the disputed document at trial, appellant will not be allowed to complain on appeal of the result of his own tactics. We find no error below.

Affirmed.

It is so ordered.

      . The precise question asked was: “At the deposition, did you tell him that you then took him back to the police station, where you routinely take people and questioned him further, and he told you the things there?”
      The witness responded: “Yes, sir, I did.”

      . The court later clarified the fact that the deposition was made a court exhibit, not for the jury, but for the purpose of any record.


author: CROSS, Judge.

text:
    Albert J. LATORRA, D. O., Petitioner, v. Lucy PATRICK and Douglas Patrick, her husband, Respondents.
    No. 77-1129.
    District Court of Appeal of Florida, Fourth District.
    April 10, 1978.
    Rehearing Denied June 5, 1978.
    William D. Ricker, Jr. of Fleming, O’Bryan & Fleming, Fort Lauderdale, for petitioner.
    L. M. Taylor of Ryan & Taylor, North Palm Beach, for respondents.
   CROSS, Judge.

Petitioner, Albert J. Latorra, seeks review through petition for a common law writ of certiorari of an order terminating a medical malpractice mediation proceeding with respect to petitioner.

Petitioner was one of four original defendants in a medical malpractice mediation proceeding filed in the Fifteenth Judicial Circuit of Palm Beach County on March 24, 1977. Petitioner, after being duly served, sought to file his answer in the matter, but inadvertently filed it in the Seventeenth Judicial Circuit of Broward County on April 25th. Petitioner’s answer was timely served on all parties. All other defendants properly served and filed their answers. On April 27th the judicial referee entered an order that jurisdiction of the mediation panel over the medical malpractice claim against petitioner had terminated as the result of petitioner’s failure to properly file a responsive pleading to the claim. The misfiled answer reached the Clerk of the Palm Beach County Circuit Court on May 3rd, having been forwarded by the Clerk of the Circuit Court of Broward County. On May 5 petitioner served and filed his motion for rehearing, reconsideration or enlargement of time to answer. A hearing on petitioner’s motion was held on May 12th, at which time the court denied said motion. Hence, this petition for a writ of certiorari.

The sole question for our determination is whether the judicial referee erred in ruling that petitioner’s failure to file an answer within twenty (20) days in the proper court terminated the jurisdiction of the medical mediation panel.

Section 768.44, Florida Statutes (Supp.1977), provides for the establishment of medical liability mediation panels to aid in the just, speedy and inexpensive determination of medical malpractice claims. Carter v. Sparkman, 335 So.2d 802 (Fla.1976). Section 768.44(1)(c) provides:

“All parties named as defendants in the claim shall file an answer to such claim within 20 days of the date of service. No other pleadings shall be allowed. If no answer is filed within such time limit, the jurisdiction of the mediation panel over the subject matter shall terminate, and the parties may proceed in accordance with law.” (Emphasis added)

The time period established by the provisions of § 768.44(1)(c), Florida Statutes, is jurisdictional as are other limitation periods established by § 768.44. Perkins v. Pare, 352 So.2d 65 (Fla.4th DCA 1977). Judicial referees have no discretion in matters which are jurisdictional. Cole v. Wallace, 354 So.2d 885 (Fla.4th DCA 1977).

Accordingly, petition for certiorari is denied.

Certiorari denied.

DOWNEY and MOORE, JJ., concur.


author: DOWNEY, Chief Judge.

text:
    Louis CROSS and Dicy B. Cross, Appellants, v. FEDERAL NATIONAL MORTGAGE ASSOCIATION, Appellee.
    No. 77-130.
    District Court of Appeal of Florida, Fourth District.
    April 25, 1978.
    William J. Berger, of Greenberg, Traurig, Hoffman, Lipoff, Quentel & Wright, Miami, for appellants.
    Patrick McGrotty, of Booher & McGrotty, Miami, for appellee.
   DOWNEY, Chief Judge.

Appellants executed a note and mortgage in favor of Southeastern Home Mortgage Company. When appellants defaulted in their payments this suit was instituted to foreclose the mortgage. Appellee (Southeastern’s assignee) was awarded a summary judgment and appellants contend that was error because of the existence of genuine issues of material fact.

The mortgage in question was federally insured as a part of a federal program specifically designed to provide home ownership for low income families. The program is administered by the Department of Housing and Urban Development through the FHA and is commonly referred to as the 235 program. The Secretary of HUD has promulgated a handbook entitled “Administration of Insured Home Mortgages”, which contains procedural guidelines for, among other things, handling mortgages in default. Specifically, these guidelines direct that the agency contact a mortgagor in default and make substantial efforts to try to rectify the default by assisting the mortgagor in various ways.

Participants in the 235 program were required to complete annual FHA recertification papers. Appellants failed to file their recertification papers which were due by June 21, 1974, and thus became ineligible for further participation in the program.

In opposition to appellee’s motion for summary judgment appellant, Mrs. Cross, filed an Affidavit which stated that when the recertification papers were sent to her she was incapacitated in the hospital and her husband, who can not read, failed to advise her of receipt of the papers. The affiant further stated that appellee failed to follow the HUD guidelines set forth above in an effort to assist appellants who were always qualified for recertification. Appellee denied these statements in its Affidavit.

It seems clear now that the HUD guidelines are not mandatory procedures constituting conditions precedent to foreclosure. Encarnacion Hernandez v. Prudential Mortgage Corporation, 553 F.2d 241 (1st Cir. 1977). However, a mortgage foreclosure is an equitable action and thus equitable defenses are most appropriate. Thus, it appears to us, as suggested in Federal National Mortgage Association v. Ricks, 83 Misc.2d 814, 372 N.Y.S.2d 485 (S.Ct.1975), that given the purpose of this federal Act and the recommended efforts to obviate the necessity of foreclosure, any substantial deviation from the recommended norm might be considered by the trial court under the heading of an equitable defense. Appellants here pleaded such a defense and Mrs. Cross’ Affidavit indicated evidentiary support therefor. Thus, there was a genuine issue of fact existing which precluded summary judgment.

Accordingly, the judgment appealed from is reversed and the cause remanded for further proceedings consistent with this opinion.

REVERSED AND REMANDED with directions.

DAUKSCH and ANSTEAD, JJ., concur.

      . Typical of these guidelines is: The Foreclosure of a mortgage . . is a last resort, and the mortgagee should acquire a property only when the mortgagor either cannot or will not make his mortgage payment as agreed. In any situation short of this, the Federal Housing Administration is prepared to help the mortgagee prevent foreclosure, and several specific relief measures are described in this chapter.”

      . See also: Roberts v. Cameron-Brown Co., 556 F.2d 356 (5th Cir. 1977).


text:
    John MILITANA, Appellant, v. Fern KALB, Appellee.
    No. 78-16.
    District Court of Appeal of Florida, Second District.
    April 26, 1978.
    John Militana of Militana, Militana & Mi-litana, Miami, for appellant.
    David B. Kesler of Law Offices of W. A. Heth, St. Petersburg, for appellee.
   PER CURIAM.

Plaintiff Militana seeks to appeal an order granting defendant Kalb’s motion for summary judgment. The order concludes by saying, “Defendant’s Motion for Summary Motion [sic] be and the same is hereby granted.” This is not a final decision, order judgment, or decree within the contemplation of Fla.R.App.P. 3.2(b). Nor is this case properly subject to interlocutory appeal under Fla.R.App.P. 4.2(a). Since we have no jurisdiction, this appeal is dismissed sua sponte. Rizzuto v. DiPaolo, 357 So.2d 490, Case No. 77-1499 (Fla. 2d DCA opinion filed April 19, 1978); Arnold v. Brady, 178 So.2d 732 (Fla. 2d DCA 1965).

HOBSON, Acting C. J., and SCHEB and RYDER, JJ., concur.


author: BOYER, Judge. BOYER, Judge.

text:
    ELLIS NATIONAL BANK OF TALLAHASSEE, a National Banking Corporation, Appellant, v. Perry L. DAVIS and Burma L. Davis, his wife, Appellee.
    No. GG-397.
    District Court of Appeal of Florida, First District.
    April 28, 1978.
    Rehearing Denied June 23, 1978.

      James C. Truett of Madigan, Parker, Gat-lin, Truett, Swedmark & Skelding, Tallahassee, for appellant.
    Charles J. Franson of Bryant, Franson, Miller, Olive, Brant & Ryan, Jacksonville, for appellee.
   BOYER, Judge.

Ellis National Bank of Tallahassee (Bank) who was plaintiff in the trial court, appeals a final judgment in favor of appellee Davis and his wife (Davis) which has its genesis in a suit commenced by the Bank on a promissory note from Davis to the Bank.

The note was prepared by Mr. Davis, the Vice-President of a bank located in Jacksonville, executed by him and Mrs. Davis, and forwarded to the Bank in Tallahassee in March of 1973. The note secured a loan in the sum of $75,000 and was to be paid in annual installments of $7,500 each, interest to be paid quarterly. The space provided in the note for insertion of the rate of interest was left blank and the evidence from all witnesses who testified on the point was to the effect .that there was no agreement between Davis and the Bank as to the rate of interest to be charged. Interest was billed quarterly by the Bank and paid by Davis. The rate charged was initially l}k per cent per annum, then 9% per cent per annum and then finally 10%. In late 1975 the Bank decided that the stock which it held as security for the note had so decreased in value that a demand for additional security was made. Davis refused and the Bank accelerated payment on the note. The Bank sued seeking to have a sale of the security whereupon Davis answered alleging usury as an affirmative defense and counterclaiming against the Bank for damages in an amount equal to twice the amount of interest paid in accordance with Title XII, Section 86 U.S.C.A. In due course the trial court entered a pre-trial order setting forth the following issues to be determined: (1) When the plaintiff Bank made its demand for additional collateral on September 25, 1975, did it, in good faith, believe that prospective payment of the note or performance of defendant’s obligations were impaired? (2) Was there an agreement between the plaintiff and the defendants as to the interest rate which would be charged upon the note which was given by the defendants to the plaintiff, and if so what was the interest rate? (3) Did the fact that the Bank calculated the interest for a period of time using a 360 day factor applied to 365 days constitute usury when the interest rate during those periods of time was 10%? (4) Do the provisions of F.S. 687.01 — “In all cases where interest shall accrue without a special contract for the rate thereof, the rate shall be 6% per annum, but parties may contract for a lesser or greater rate by contract in writing” preclude submission to the jury of issue number two or was this provision waived by the conduct of the parties? The jury found for Davis as to the first issue viz: That the Bank’s demand for additional collateral was not in good faith and the trial judge directed a verdict in favor of Davis as to the second and fourth issues thereby determining that there was no agreement between Davis and the Bank as to the interest rate to be charged and that F.S. 687.01 required as a matter of law that the interest accrue at the rate of 6 per cent per annum. As to the third issue relating to usury the parties stipulated that the Bank calculated the interest using a 360 day factor in accordance with Rowlett’s Tables while charging Davis the maximum interest rate of 10 per cent; that the Bank knew that the factor was being used and that it would produce more interest than would be produced by applying the maximum legal rate to a calendar year of 365 days; and that other banks in Florida customarily used the 360 day factor developed by use of Rowlett’s Tables when the maximum 10 per cent interest rate was being charged to borrowers. After considering the stipulation and arguments the court found for Davis as to the third issue and that the Bank had collected a usurious interest rate from September 28, 1973 through June 25, 1974. The court thereupon ordered that Davis pay the principal balance on the note without paying any interest, that Davis be awarded $815.72, the difference between the amount of interest charged and collected by the Bank over and above the statutory rate of 6 per cent; that Davis be paid the sum of $11,158.32, the penalty prescribed by Title XII, Section 86, U.S.C.A. for interest paid by Davis from September 28, 1973 through June 25, 1974; and that Davis be paid the sum of $15,-160.28, the penalty for the amount of interest paid by Davis from June 25, 1974 through the date of trial.

Although, because of our treatment of appellant’s second point which will be hereafter discussed, it is not necessary that we address its first point, we nevertheless note that we agree with the learned trial judge that F.S. 687.01 fixes the interest rate on the subject note at 6 per cent per annum since the evidence is clear that the parties did not contract for a lesser or greater rate.

As to appellant’s second point, viz: That the trial court erred in finding that the interest rate charged Davis by the Bank from September 28, 1973 to June 25, 1974 was usurious by virtue of computation at the maximum legal rate of 10 per cent on the basis of a 360 day year rather than the actual calendar year of 365 days, there appears to be a division of authority in other jurisdictions and no reported Florida case has apparently addressed the issue.

The parties agreed during oral argument before this court and stipulated before the trial court that we are not here concerned with “spreading”: That the issue is whether the interest during the period that interest was being charged by the Bank at the rate of 10 per cent exceeded the maximum legal rate allowed by F.S. 687.03. As above stated the parties also stipulated that the Bank knowingly charged, during the subject period, interest at the rate of 10 per cent based upon a 360 day year and knew that such computation would produce more interest than would be produced by applying the maximum legal rate to a calendar year of 365 days. We are not, therefore, here involved with a case of inadvertance, oversight or mistake and the simplest of mathematics reveals that 10 per cent of a given sum results in a greater per diem rate if computed on a basis of a 360 day year than if computed on the basis of a 365 day year. Appellant urges that the difference is “de minimis” or not material. However we note that F.S. 687.03 affords no leeway. It provides, in material part: “It shall be usury and unlawful * * * to reserve, charge or take for any loan * * * except upon an obligation of a corporation, a rate of interest greater than 10 per cent per annum, either directly or indirectly, * * ”.

In American Timber and Trading Company v. The First National Bank of Oregon, 511 F.2d 980 (1975) the United States Court of Appeals of the Ninth Circuit had occasion to consider a factually similar case involving Oregon law. Although that court carefully and specifically limited its construction to Oregon law we are of the view that its rationale is applicable in Florida. We are particularly impressed with the following statements contained in that opinion:

“ * * * The bank contends that the use of a 365/365 method creates difficult computations and, therefore, for reasons of convenience the banking community considers it proper to use the simpler 365/360 method. The district court noted that the legislative intent in enacting usury laws is to protect borrowers from paying excessive interest. The court felt the act should be construed with regard to its net effect upon the borrower rather than upon the bookkeeping burden, custom, or convenience of the lender. The court noted that the bank used the 365/365 method to compute interest it paid to its depositors. Moreover, the court doubted whether the practice could obtain legitimacy by long and heavy borrowing would the question ever arise. Therefore, it concluded that it could not be said that the Legislative Assembly has acquiesced in a practical construction of the law at odds with the plain meaning of its words. Again, we agree with the district court’s ruling.
* * * * * *
“ * * * Any claim by the banking industry that ease of calculation is justification for exacting higher interest is of dubious validity in this age of computer technology.” (511 F.2d at pages 983 and 984)

Although factually dissimilar, and involving a different specific issue, our holding sub judice is, we believe, supported by the philosophy of Dixon v. Sharp, 276 So.2d 817 (Fla.1973). We are here also in line with Attorney General Opinion 075-269 wherein the Attorney General of the State of Florida opined affirmatively to the query “Is it a violation of Chapter 687, F.S. (Interest and Usury), for a lender to calculate interest on a 360-day year, where an individual is charged the maximum rate of 10% interest?”

We accordingly affirm the trial court as to the points raised by appellant.

Davis cross assigned as error the amount of the money judgment as fixed by the trial court. We find that point to merit our attention.

F.S. 687.04 provides:

“Any person, or any agent, officer or other representative of any person, willfully violating the provisions of § 687.03 shall forfeit the entire interest so charged, or contracted to be charged or reserved, and only the actual principal sum of such usurious contract can be enforced in any court in this state, either at law or in equity; and when, said usurious interest is taken or reserved, or has been paid, then and in that event the person, who has taken or reserved, or has been paid, either directly or indirectly, such usurious interest, shall forfeit to the party from whom such usurious interest has been reserved, taken or exacted in any way, double the amount of interest so reserved, taken or exacted; * * * ”

That statute, however, is here inapplicable because appellant is a national bank and is subject to Title XII, Section 86, U.S.C.A., which furnishes the exclusive remedy when a national bank is found guilty of exacting usurious interest. (See Coral Gables First National Bank v. Constructors of Florida, 119 So.2d 741 (Fla. 3d DCA 1960) and cases therein cited) That statute provides:

“The taking, receiving, reserving, or charging a rate of interest greater than is allowed by the preceding section, when knowingly done, shall be deemed a forfeiture of the entire interest which the note, bill, or other evidence of debt carries with it, or which has been agreed to be paid thereon. In case the greater rate of interest has been paid, the person by whom it has been paid, or his legal representatives, may recover back, in an action in the nature of an action of debt, twice the amount of the interest thus paid from the association taking or receiving the same:”

Although appearing at first blush to be clear and unambiguous, there is great confusion among the courts which have had occasion to consider its application to a specific factual situation. There is, though, one area of its construction upon which all agree, viz: The first sentence of the statute and the second sentence thereof must be read separately as furnishing separate and distinct remedies. (See Coral Gables First National Bank v. Constructors of Florida, supra; Western Union Telegraph Co. v. Mahone, 120 Va. 422, 91 S.E. 157 (1917); First National Bank of Lake Benton v. Watt, 184 U.S. 151, 22 S.Ct. 457, 46 L.Ed.2d 475 (1902), and Cronkleton v. Hall, 66 F.2d 384 (8th Cir. 1933).) In considering the question of the imposition of penalties provided by the subject statute, it was stated in Mitchell v. Joplin National Bank, (1918) 204 S.W. 1125, 200 Mo.App. 243 that:

“There are two entirely different divisions of the section. The first provides for a forfeiture when usury has been knowingly contracted for and such usury entered into the note; the second provides for the recovery back of all interest paid when said interest is in part usurious.”

Our own F.S. 687.04, though not applicable to a national bank, has similar wording and has been construed similarly. (See Purvis v. Frink, 61 Fla. 712, 54 So. 862 (1911); Lyle v. Winn, 45 Fla. 419, 34 So. 158 (1903) and Levin v. Fisher (Fla. 3rd DCA 1963) 150 So.2d 730)

As noted, the first sentence of the subject federal statute provides that “the taking, receiving, reserving, or charging a rate of interest greater than is allowed by [the applicable law], * * * shall be deemed a forfeiture of the entire interest which the note * * * carries with it, or which has been agreed to be paid thereon.” The word “forfeiture” is prospective in tense and meaning. It has no application to that which has already been accomplished, viz: To interest already paid. The learned trial judge was therefore correct in holding that by virtue of that provision of the statute no further interest would be required to be paid on the note because, pursuant to the wording of the statute, such interest was “forfeited” because of the usurious nature of the transaction.

We turn now to a consideration of the second sentence of the statute which, as above recited, encompasses a completely separate and distinct penalty. That provision provides that in case a usurious rate of interest has actually been paid the debtor may recover back from the creditor bank “twice the amount of interest thus paid”. The Supreme Court of the United States in First National Bank of Lake Benton v. Watt, supra, held that although the statute is penal in character and must be strictly construed, it must nevertheless be given a construction in keeping with its “obvious intent” and that the second sentence “subjects the creditor to pay twice the amount of the entire interest illegally exacted”. Our sister court of the Third District, in Coral Gables First National Bank v. Constructors of Florida, supra, considering application of the same statute, said:

“ * * * Where the interest has been paid, the person so paying it may recover back twice the amount paid. * * * ” (Emphasis the Court’s: 119 So.2d at page 747)

Sub judice the parties have stipulated that Davis paid interest in the sum of $23,638.93. Twice that amount is $47,-277.86. It is that amount, and only that amount, that Davis is entitled to recover back from the bank. That portion of the final judgment awarding money damages is therefore hereby amended accordingly.

Lest it appear that we have overlooked the concluding sentence of the subject Federal Statute which contains a two year statute of limitations “from the time the usurious transaction occurred”, we acknowledge that provision, but observe that its construction has no application sub judi-ce for the reason that all authorities agree that such provision constitutes a statute of limitations which is, in Florida, an affirmative defense which is waived if not pleaded. It has not been raised sub judice.

Further, we are aware that Cronkleton v. Hall, supra, which was not cited by either party but was discovered by our own research, lends a construction to the subject Federal Statute different from that which we have applied sub judice. However, we have found no other case construing the statute in the manner as did the Cronkleton court and that court’s construction does not appear to us to be in keeping with the plain meaning of the words of the statute itself; nor does its reasoning comport with the interpretation given by our own courts to our own statute which contains a similar provision.

AFFIRMED IN PART and REVERSED IN PART.

McCORD, C. J., and MASON, ERNEST E., Associate Judge, concur.

ON PETITION FOR REHEARING DENIED

BOYER, Judge.

By petition for rehearing appellant urges that by our holding that its charge of an interest rate- in excess of the maximum allowed by law constituted usury is in conflict with our own opinion in North American Mortgage Investors v. Cape San Blas Joint Venture, 357 So.2d 416 (Fla. 1st DCA 1978), which opinion was entered on June 17, 1977. Although that opinion was a one sentence per curiam affirmance, appellant cites us to the record in an attempt to establish conflict. Without here addressing the propriety of citing a “PCA” (see Department of Revenue v. Young American Builders, 358 So.2d 1096 (Fla. 1st DCA 1978)) we note that even the allegations of appellant’s petition for rehearing does not demonstrate any conflict. North American Mortgage Investors v. Cape San Blas Joint Venture, supra, according to appellant’s own petition for rehearing, involved an unintentional overcharge. Sub judice, on the other hand, the bank stipulated that it knowingly employed a manner of computation which it knew would produce more interest than the maximum legal rate.

Appellant also urges that we overlooked the holding in Dixon v. Sharp, 276 So.2d 817 (Fla. 1973). A reading of our opinion, however, reveals that we expressly recognized, indeed relied upon, that opinion, saying:

“Although factually dissimilar, and involving a different specific issue, our holding sub judice is, we believe, supported by the philosophy of Dixon v. Sharp, 276 So.2d 817 (Fla. 1973). * *”

Finally, appellant contends that we have “overlooked and misconstrued the plain language of the second sentence of Title 12, United States Code Annotated, Section 86.” In so urging appellant takes a position for the first time in its petition for rehearing which was never urged in its original brief, at oral argument, nor in the supplemental brief which this court ordered for the specific purpose of seeking counsel’s aid in the construction of that statute. We have nevertheless considered appellant’s contentions and find them not to merit a revisiting of our original opinion.

The petition for rehearing is, therefore, denied.

McCORD, C. J., and MASON, ERNEST E., Associate Judge, concur.


author: SMITH, Judge.

text:
    Carolynn W. WALKER, Appellant, v. LIFE INSURANCE COMPANY OF NORTH AMERICA, Appellee.
    No. HH-117.
    District Court of Appeal of Florida, First District.
    April 28, 1978.
    Rehearing Denied June 28, 1978.

      P. Kevin Davey of Douglass, Powell & Davey, Tallahassee, for appellant.
    S. William Fuller, Jr. of Howell, Howell, Liles & Braddock, Jacksonville, for appellee.
   SMITH, Judge.

Leon County Deputy Sheriff Ronny Walker was killed in a collision while driving his car home after completing his duty shift. His widow appeals here from an adverse summary judgment on her claim for benefits under a group life policy insuring Walker’s life against loss incurred while “engaged in the performance of prescribed duties as a law enforcement officer.” We find that although Walker was in uniform, armed, subject to call at all hours, and charged to initiate law enforcement activities on appropriate occasions while off duty, his state of readiness to perform prescribed law enforcement duties was not equivalent to being “engaged” in their performance. Police Comm’r of Baltimore City v. King, 219 Md.App. 127, 148 A.2d 562 (1959). See State ex rel. Moore v. Glassco, 347 Mo. 977, 149 S.W.2d 848 (1941); McColgan v. Bd. of Police Comm’rs, 130 Cal.App. 66, 19 P.2d 815 (1933). Compare Dillard v. City of Los Angeles, 20 Cal.2d 599, 127 P.2d 917 (1942).

AFFIRMED.

McCORD, C. J., and MELVIN, J., concur.


text:
    Gertrude ANDERMAN, formerly Gertrude Miller, and Ilene Miller Robinson, Appellants, v. Robert MILLER, Meyer Miller, and Samuel Miller, Appellees.
    No. 77-777.
    District Court of Appeal of Florida, Third District.
    May 2, 1978.
    Rehearing Denied June 28, 1978.

      Heiman & Heiman and Judith Hayes, Miami, for appellants.
    Pallot, Stern, Proby & Adkins and Adolfo A. Podrecca, Miami, for appellees.
    Before PEARSON and HUBBART, JJ., and CRAWFORD, GRADY L. (Ret.), Associate Judge,
   PER CURIAM.

The appellant is the widow of Irving Miller. She appeals an order of the circuit judge setting aside homestead. The trial judge fully set out the stipulated facts,

“(i) That IRVING MILLER, a/k/a ISADORE MILLER, a/k/a ISIDORE MILLER, died on November 6, 1968, domiciled in Dade County, Florida
“(ii) That at the time of the decedent’s death, the decedent owned a single family dwelling located at 225 Fairway Drive, Miami Beach, Dade County, Florida, legally described as follows:
Lot 27, Block 59, of NORMANDY GOLF COURSE SUBDIVISION, according to the plat thereof, recorded in Plat Book 44 at page 62 of the Public Records of Dade County, Florida, together with the building and improvements thereon, and all personal property and fixtures located therein.
“(iii) That at the time of the death of the decedent, IRVING MILLER, a/k/a ISADORE MILLER, a/k/a ISIDORE MILLER, the decedent resided upon the afore-described property with his wife, GERTRUDE MILLER and ILENE MILLER ROBINSON, formerly known as ILENE MILLER, an adopted daughter of the decedent.
“(iv) That the decedent was survived by his spouse, GERTRUDE MILLER, and by the following lineal descendants, to-wit: his sons, ROBERT MILLER, MEY-ER MILLER and SAMUEL MILLER, the above-named petitioners, and by the said ILENE MILLER ROBINSON, all of whom were over the age of twenty-one years.
“B. That the petitioners, ROBERT MILLER, MEYER MILLER and SAMUEL MILLER, have, by clear and convincing evidence, sustained the burden of proof of the allegations contained in their petition to set aside homestead and have established that, prior to and at the time of the death of the decedent, IRVING MILLER, a/k/a ISADORE MILLER, a/k/a ISIDORE MILLER, the decedent was the dominant person in the household and the head of the family consisting of the decedent, his wife, GERTRUDE MILLER, and his adopted daughter, ILENE MILLER ROBINSON, formerly known as ILENE MILLER, although the decedent’s surviving widow, GERTRUDE MILLER, aided and assisted the decedent in the conduct of their businesses and in the management of the homestead.
“C. That as of November 6, 1968, the date of the death of the decedent, IRVING MILLER, a/k/a ISADORE MILLER, a/k/a ISIDORE MILLER, the Constitution of the State of Florida, adopted by the Convention of 1885, as amended, was in full force and effect. Pursuant to Article X, Section 4 thereof, the holder of the homestead is barred from devising the homestead where there are children surviving him. The word ‘children’, as used in Article X, Section 4 of the 1885 Constitution of Florida, has reference to relationship and is not restricted to minor children. DeCottes v. Clarkson, 1901 Fla., 29 So. 442. The word ‘children’, therefore, includes all children of the decedent, regardless of whether they are minors or have attained their majority at the time of decedent’s death. The Constitution of the State of Florida, as revised on November 8, 1968, did not become effective until January 6, 1969, the first Tuesday after the first Monday in January of 1969, in accordance with Article XI, Section 5(c) thereof. Consequently, Article X, Section 4(c) of the 1968 Constitution of Florida, providing that the homestead shall not be subject to devise if the owner is survived by spouse or minor child, is not applicable to the within proceeding brought by ROBERT MILLER, MEYER MILLER and SAMUEL MILLER to set aside homestead.”

The widow has presented three points on appeal. The first urges that the court erred as a matter of law in holding that there was a presumption that the husband was the head of the family. This point does not arise from the record because the trial judge made his findings based upon “clear and convincing evidence” that . . the decedent was the dominant person in the household and the head of the family . . .” Cf. Solomon v. Davis, 100 So.2d 177 (Fla.1958); and In re Estate of Wilder, 240 So.2d 514 (Fla. 1st DCA 1970).

The second point urges that the trial judge’s finding is against the manifest weight of the evidence because he did not apply the principles of estoppel to the petition of the decedent’s sons. The burden of this argument is that upon the advice of one of the sons, the decedent, after bankruptcy, placed property, including the home, in the wife’s name in order to defraud creditors. Bypassing the question of whether the father’s actions may be used as an estoppel against all of the heirs, we conclude that as a matter of law, see Camp v. Moseley, 2 Fla. 171, 199 (1848), the record supports the trial judge’s determination that an estoppel was not established. Cf. Enstrom v. Dunning, 136 Fla. 253, 186 So. 806, 812 (1939).

The last point urges that the trial judge erred in failing to consider appellant’s affirmative defenses. The record does not show that these defenses were not considered. The widow was presented with the opportunity for a full trial of the issues. Upon appellate review, the record and the findings of a trial judge will be presumed correct in the absence of an affirmative showing to the contrary. See In re Winslow’s Estate, 147 So.2d 613 (Fla.2d DCA 1962); and In re Wilson's Estate, 116 So.2d 440 (Fla.2d DCA 1959).

Affirmed.


text:
    CITY OF MIAMI, Florida, a Florida Municipal Corporation, Appellant, v. Gene Allen WATKINS, Appellee.
    No. 77-1102.
    District Court of Appeal of Florida, Third District.
    May 2, 1978.
    Rehearing Denied June 28, 1978.
    George F. Knox, Jr., City Atty. and Mik-ele S. Carter, Asst. City Atty., for appellant.
    Williams, Tomlinson & duFresne, Coral Gables, for appellee.
    Before HAVERFIELD, C. J., and PEARSON, J., and CHARLES CARROLL (Ret.), Associate Judge.
   PER CURIAM.

Affirmed. See Phoenix Assurance Company of New York v. Merritt, 160 So.2d 552 (Fla. 2d DCA 1963); Lillard v. City of Miami, 220 So.2d 413 (Fla. 3d DCA 1969).


text:
    Gerald WEINER and Marilyn Weiner, d/b/a Southern Food & Vending Service, et al., Appellants, v. UNITED STATES FIDELITY AND GUARANTY COMPANY, a Foreign Corporation, Appellee.
    No. 77-1104.
    District Court of Appeal of Florida, Third District.
    May 2, 1978.
    Rehearing Denied June 28, 1978.
    Robert S. Korschun, Miami, for appellants.
    Knight, Peters, Pickle, Niemoeller & Flynn, Jeanne Heyward, Miami, for appel-lee.
    Before PEARSON and HENDRY, JJ., and CRAWFORD, GRADY L. (Ret.), Associate Judge.
   PER CURIAM.

Affirmed upon authority of the rule stated in Aetna Casualty & Surety Company v. Cartmel, 87 Fla. 495, 100 So. 802 (1924); and United States Fire Insurance Company v. Morejon, 338 So.2d 223, 225 (Fla.3d DCA 1976).


author: BOOTH, Judge.

text:
    Phyllis HICKS, Appellant, v. STATE of Florida, Appellee.
    No. EE-101.
    District Court of Appeal of Florida, First District.
    May 4, 1978.
    Rehearing Denied June 28, 1978.

      Donald G. Nichols, of Dawson, Galant, Maddox, Sulik & Nichols, Jacksonville, for appellant.
    Robert L. Shevin, Atty. Gen., and Richard W. Prospect, Asst. Atty. Gen., for appellee.
   BOOTH, Judge.

This cause is before the Court on appeal from the judgment of the Circuit Court, Duval County, entered on a jury verdict finding Defendant guilty of conspiracy to commit a felony, to wit: sale or delivery of heroin, and sentencing her to five years imprisonment and a five thousand dollar ($5,000) fine.

Appellant contends that evidence against her obtained through telephone interceptions was improperly admitted because service of post-interception inventory was made more than 90 days after interception ceased. Specifically, Appellant complains of two 60-day extensions of time for service of post-interception inventory granted by the court on motion of Appellee under Florida Statute § 934.09(7)(e). The grounds stated in Appellee’s motions for these extensions were that electronic surveillance pursuant to the court’s order was continuing in one of four related cases against the co-conspirators; that an application for further interceptions was pending, and that service of an inventory in the instant case would prejudice the surveillance being conducted on those involved in the possession, delivery, manufacture and sale of controlled substances, who would be alerted to the fact of electronic surveillance on one Eddie Lee Rosemond.

Rosemond, an alleged wholesale trafficker in illegal drugs, was the boyfriend of Appellant Hicks. The telephone specified in the court-authorized interception was listed in the name of Appellant Hicks, but located in the home of Rosemond. More than 400 separate communications relating to the drug ring’s illegal operations were intercepted during the electronic surveillance of the particular telephone in question.

Appellant contends that lack of strict compliance with post-interception procedures requires suppression of evidence which was otherwise obtained in full compliance with the act. No reported authority supports that contention. Under Florida Statute § 934.09 the trial court’s discretion is properly exercised as to post-interception procedures, including extension of time for serving inventory. In the absence of an affirmative showing of prejudice, subsection (8) of § 934.09 provides that even the minimum furnishing of copies of the court order and application for wiretap to a party ten days before the trial or hearing can be waived where it is not possible for the State to furnish such information.

Here the inventory was served on May 4, following service of the indictment against Appellant the preceding day. Hearing on motion to suppress was held July 10 and the trial was November 8, 1976. Appellant makes no claim of prejudice in the preparation of her defense, or otherwise, by the postponement of service of inventory.

In In Re Grand Jury Investigation Concerning Evidence Obtained by Court Authorized Wiretaps, 276 So.2d 234 (1st DCA 1973), this Court noted that the Florida Security of Communications Act, Florida Statute Chapter 934, “is in all substantial respects identical in its language to the Omnibus Crime Control and Safe Streets Act of 1968 adopted by the Congress of the United States”, and that decisions of the federal courts are pertinent “for the legislative history of the federal statute of which ours is a counterpart.”

In U. S. v. Donovan, 429 U.S. 413, 97 S.Ct. 658, 50 L.Ed.2d 652, the Supreme Court considered the purpose for the federal counterpart of Florida Statute § 934.09(7)(e) and held that failure to serve notice on all parties whose communications were intercepted did not invalidate the interceptions, stating:

“The legislative history indicates that postintercept notice was designed instead to assure the community that the wiretap technique is reasonably employed. But even recognizing that Congress placed considerable emphasis on that aspect of the overall statutory scheme, we do not think that postintercept notice was intended to serve as an independent restraint on resort to the wiretap procedure.” (e. s.)

In U. S. v. Bohn, 508 F.2d 1145 (CA 8th 1975), cert. denied 421 U.S. 947, 95 S.Ct. 1676, 44 L.Ed.2d 100 (1975) the court held:

“[AJbsent a clear showing of prejudice, a failure to comply with the notice and inventory requirements of 18 U.S.C. § 2518(8)(d) does not require suppression of the wiretap evidence . . .”

In U. S. v. Lawson, 545 F.2d 557 (CA 7th 1975), Defendants did not receive notice and inventory for over two years after termination of the authorized interception period, and the court held:

“. .we believe that suppression is not required inasmuch as defendants received the inventory three months prior to the hearing on defendants’ motion to suppress and furthermore appellants have not alleged any prejudice resulting from this noncompliance.”

In U. S. v. Iannelli, 417 F.2d 999 (CA 3d 1973), aff’d 420 U.S. 770, 95 S.Ct. 1284, 43 L.Ed.2d 616 (1975) the court held that defendants who were allegedly not served with an inventory were not prejudiced where they eventually received actual notice well in advance of the hearing on the motion to suppress.

In U. S. v. Rizzo, 492 F.2d 443 (CA 2nd 1974), cert. denied 417 U.S. 944, 94 S.Ct. 3069, 41 L.Ed.2d 665 (1974), the court affirmed the admission of wiretap evidence where actual prejudice was not claimed to have resulted from delayed service of inventory, stating:

“We believe that the touchstone to the determination whether to suppress wiretap evidence on a claim of failure of notice should be prejudice to the defendant . ”

Further, we note that the grounds stated by the State in its motions for extensions of time constitute “good cause” under § 934.09(7)(e). As stated in U. S. v. Curreri, 363 F.Supp. 430, 436 (DC Md.1973):

“It would be ridiculous to notify certain defendants of a wiretap when successive wiretaps were continuing in the investigation they were a part of. Thus, the court can readily perceive good cause would exist to delay the filing of an inventory until all the wiretaps were finally terminated, so that all inventories could be served at the same time. And even if the 90-day period were not met exactly, the remedy would not necessarily be suppression. The notice requirements of Title III are designed to prevent the secret search. When notice is in fact, albeit tardily, given of a previously clandestine search, Title Ill’s intent has been satisfied and absent a showing of unreasonable or prejudicial delay, suppression is not required.”

To like effect is the case of U. S. v. John, 508 F.2d 1134 (CA 8th 1975).

We hold that the trial court in the instant case properly granted extensions of time for serving the inventories based on good cause shown and did not abuse its discretion in denying the motion to suppress for delay in service of the post-interception inventory. Other matters raised by appellant have been considered and found to be without merit.

The judgment below is AFFIRMED.

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

        .Florida Statute § 934.09(7)(e): “Within a reasonable time but not later than ninety days after the termination of the period of an order or extension thereof, the issuing or denying judge shall cause to be served on the persons named in the order or the application, and such other parties to intercepted communications as the judge may determine in his discretion that is in the interest of justice, an inventory which shall include notice of:
      1. The fact of the entry of the order or the application;
      2. The date of the entry and the period of authorized, approved, or disapproved interception, or the denial of the application; and
      3.The fact that during the period wire pr oral communications were or were not intercepted.
      The judge, upon the filing of a motion, may make available to such person or his counsel for inspection such portions of the intercepted communications, applications, and orders as the judge determines to be in the interest of justice. On an ex parte showing of good cause to a judge of competent jurisdiction, the serving of the inventory required by this paragraph may be postponed.”

      . See Epps v. State, 354 So.2d 441 (1st DCA 1978) affirming a conviction of one count of conspiracy in a related case.

      . State v. Berjah, 266 So.2d 696 (3d DCA 1972). The trial court granted an extension for the service of inventory which was unlimited as to time, and subsequently, in exercise of its discretion, suppressed the evidence. The district court affirmed, holding that the trial court’s suppression of the evidence did not constitute an abuse of discretion.

      . 18 U.S.C. § 2518(8)(d).


text:
    The STATE of Florida, Appellant, v. Stephen Marco MORRIS, Appellee.
    No. GG-498.
    District Court of Appeal of Florida, First District.
    May 4, 1978.
    Rehearing Denied June 8, 1978.

      Robert L. Shevin, Atty. Gen., Patti Eng-lander, Asst. Atty. Gen., Stephen L. Boyles, State’s Atty., and John V. Doyle, Asst. State’s Atty., for appellant.
    Dan R. Warren of Judge & Warren, Day-tona Beach, for appellee.
   BOOTH, Judge.

This cause is before us on appeal from the order of the Circuit Court, Volusia County, granting appellee a new trial. The question presented is whether the trial court, after denial of a motion for new trial, has jurisdiction to consider any further motions in the nature of rehearing of motion for new trial in the absence of allegations of fraud or clerical error.

Appellee, defendant below, was tried and convicted by jury on June 17, 1976 of unlawful possession of a controlled substance and unlawful sale or delivery of a controlled substance. On June 24, 1976, appel-lee timely filed a motion for new trial. The court heard argument on the merits and, on December 2,1976, entered its order denying motion for new trial. Thereafter, on December 14, 1976 appellee filed a “Petition for Rehearing” seeking to have the court rehear defendant’s motion for a new trial. That motion was denied by order of the court on March 15, 1977.

On April 18, 1977 appellee filed a “Renewal of Motion for Judgment of Acquittal” in which appellee sought to have the court enter a judgment of acquittal or, in the alternative, grant the previously prayed for motion for new trial. After hearing, the court entered an order granting appel-lee a new trial on July 26, 1977.

On appeal to this Court, the' State contends that in the absence of allegations of fraud or clerical error, the court was without jurisdiction to entertain the motions for rehearing of the previously denied motion for new trial. We agree.

The jurisdiction of the trial court terminates with the denial of a motion for new trial, and the court may not entertain a petition for rehearing of a motion for new trial, in the absence of certain critical allegations such as fraud or clerical error. State v. Burton, 314 So.2d 136 (Fla.1975).

In the instant case the order of the court granting a new trial is expressly based on the court’s discovery of a new decision of the United States Supreme Court. A similar basis for reconsideration of a motion for new trial, after its previous denial, was held improper in Fiber Crete Homes, Inc. v. Division of Administration, 315 So.2d 492 (4th DCA 1975). In the Fiber Crete case, as here, the grant of new trial was based on the court’s discovery of a new case, after the court had denied a previously filed motion for new trial. The trial court in Fiber Crete purported to act under Rule 1.540, Florida Rules of Civil Procedure, which allows the court to vacate judgment on the grounds of, inter alia, “mistake, inadvertence, surprise or excusable neglect.” The District Court in that case correctly held that:

“Rule 1.540 was intended to provide relief from judgments, decrees or orders under a limited set of circumstances; it was neither intended to serve as a substitute for the new trial mechanism prescribed by Rule 1.530 nor as a substitute for appellate review of judicial error . As was observed in Weymer, supra, a decision is inadvertent if it is the result of oversight, neglect or accident as distinguished from judicial error’.
It appears that the trial court’s sua sponte order (after its denial of rehearing) was an effort on its part to grant relief from a final judgment because of what the trial court perceived to be a judicial error as distinguished from ‘mistake, inadvertence, surprise or excusable neglect’. To sanction such a modification of Rule 1.540(b) would not only be contrary to the purpose of that rule, but, additionally, would adversely affect the concept of ‘finality’ of any judgment or order.”

To like effect are decisions in Volumes in Value, Inc. v. Buy Mail International, Inc., 177 So.2d 511 (Fla.3d DCA 1965) and DePadro v. Moore, 215 So.2d 27 (4th DCA 1968). In the DePadro case the court stated the rule as follows:

“When the trial court has considered on its merits a timely motion for new trial, and thereafter enters its order denying such motion, the court has no authority to entertain or consider a subsequently filed motion or petition for rehearing which merely asks the court to reconsider the same matter . . ”

Appellant argues, however, that the rule in civil cases should not be applied in criminal cases. That argument goes against the Supreme Court decision in Burton, supra, which cites and relies on civil cases in stating the rule, and Schaffer v. State, 296 So.2d 569 (3d DCA 1974), cert. denied 303 So.2d 25 (Fla.1974). In Schaffer, a defendant’s timely motion for new trial was granted. Subsequently, the State filed a motion for rehearing which the trial court entertained and granted, vacating the order granting a new trial. On appeal the District Court reversed and reinstated the new trial order holding that the court was without jurisdiction to vacate the order for new trial.

Judicial error or “mistake” is a matter for appeal, in criminal as well as civil cases. The trial court’s jurisdiction must and does terminate with denial of motion for new trial.

Accordingly, the order of the trial court granting a new trial in this case is REVERSED and the cause REMANDED with directions to enter judgment in accordance with the jury verdict.

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


author: MILLS, Judge. MILLS, Judge.

text:
    UNITED STATES FIDELITY & GUARANTY COMPANY, Appellant, v. Dock GORDON, Appellee.
    No. EE-8.
    District Court of Appeal of Florida, First District.
    May 8, 1978.
    Rehearing Denied June 16, 1978.

      Mary Jane S. Trimble of Dell, Graham, Willcox, Barber, Ryals & Henderson, Gainesville, for appellant.
    Craig F. Hall of Barton & Cox, Gaines-ville, for appellee.
   MILLS, Judge.

Gordon was injured in an automobile accident in December 1973 when the vehicle he was driving was rear-ended by a vehicle driven by James Stephens. Stephens’ liability police limits were $10,000 per individual per occurrence. In September 1974, Gordon accepted $9,600 from Allstate, Stephens’ liability insurance carrier, in settlement and release of his claim against Stephens and Allstate.

At the time of the accident, Gordon was insured by United States Fidelity and Guaranty Company (USF&G) and his policy provided uninsured motorist coverage of $10,-000 each on two vehicles or, when stacked, $20,000. On 1 March 1976, Gordon made a claim to USF&G for underinsured motorist benefits, and on 13 April 1976, filed a claim in arbitration against USF&G. USF&G then filed its complaint for declaratory judgment to determine its obligation, if any, to Gordon under its uninsured motorist coverage. In its complaint for declaratory judgment, USF&G asserted that by reason of Gordon’s settlement with Stephens and Allstate and the release of those parties, Gordon had waived any right to underin-sured motorist benefits under his policy and the Uninsured Motorist Statute, Section 627.727, Florida Statutes (1975). Gordon asserted by way of affirmative defense that USF&G was not prejudiced by the settlement and was precluded from raising the issue of waiver by the terms of the policy. Gordon also counterclaimed for underin-sured motorist benefits and attorney’s fees. Final declaratory judgment and partial summary judgment was entered in favor of Gordon and USF&G appeals.

The trial court found that Gordon’s settlement with Stephens and Allstate for an amount less than the full amount of liability insurance carried by Stephens did not represent the amount which Gordon had determined to be the full extent of his damages and did not constitute a waiver of any right to uninsured motorist benefits to which Gordon might be entitled under the terms and conditions of his insurance contract with USF&G. We agree.

Section 627.727 pertains to uninsured vehicle coverage. Section 627.727(1) states that uninsured motor vehicle coverage is for “. . . the protection of persons insured thereunder who are legally entitled to recover damages from owners or operators of uninsured motor vehicles because of bodily injury, sickness, or disease . . . .” The Section further provides that such coverage . shall be excess over, but shall not duplicate the benefits available to an insured . . . under any automobile liability or automobile medical expense coverages; or from the owner or operator of the uninsured motor vehicle . . .” Section 627.727(2)(b) defines “uninsured motor vehicle” as including an insured motor vehicle when the insurer thereof:

“Has provided limits of bodily injury liability for its insured which are less than the limits applicable to the injured person provided under [his] uninsured motorist’s coverage.”

There is nothing in Section 627.727 that indicates that the insured must exhaust all benefits available from other sources before being eligible to recover under his uninsured vehicle coverage. The Section merely states that uninsured vehicle coverage shall be excess over and not duplicate other available benefits.

In this case, there was available to Gordon $10,000 from Stephens’ liability insurance. If Gordon’s damages are $10,000 or less then Gordon cannot collect from USF&G, since such recovery would duplicate available benefits, however, if Gordon sustained damages of over $10,000 he can recover the amount over $10,000 which is within the limits of his coverage.

USF&G contends that Gordon is precluded from claiming damages of over $10,000 since he settled with Allstate for $9,600. The fact that Gordon settled for an amount less than the full amount of liability insurance carried by Stephens is not determinative of the amount of damages actually sustained by Gordon. See Brooker v. Nationwide Mutual Insurance Co., 207 So.2d 486 (Fla. 1st DCA 1968). Settlements are often made for reasons which have little to do with the amount of damages sustained by the injured party. In this case, Gordon decided to settle for $400 less than the policy limits because he was advised that the cost of continuing litigation would probably exceed the additional $400 he might receive. Further, there were no assets available to which a judgment in excess of the Allstate policy limits could attach.

The judgment appealed is affirmed.

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

ON PETITION FOR REHEARING DENIED

MILLS, Judge.

United States Fidelity & Guaranty Company (USF&G) contends it should be granted a rehearing because the Court overlooked the argument it made in its briefs and in oral argument to the Court that the release Gordon gave the third party and his liability carrier extinguished Gordon’s uninsured motorist claim against it. We did not overlook this argument.

Gordon moved for partial summary judgment on paragraph 11 of USF&G’s amended complaint which alleged:

“Plaintiff [USF&G] contends that Defendant [Gordon] is not entitled to Uninsured Motorist benefits on the grounds that settlement with the third party for an amount less than the full amount of liability insurance carried by said party represents an amount which Defendant has determined to be the full extent of the damages and a waiver of any right to any Uninsured Motorist benefits to which Defendant would have been entitled.”

This was the only issue before the trial court and was the only issue on which the trial court granted partial summary judgment for Gordon. It was the only issue raised, and the only issue that could be raised on this appeal. It is the only issue we addressed in our opinion.

For clarification, and to precisely paraphrase the allegations of. USF&G’s complaint, we delete the fourth sentence from the top of page 2 of the opinion and substitute the following sentence:

In its complaint for declaratory judgment, USF&G asserted that Gordon’s settlement with Stephens and Allstate for an amount less than the full amount of liability insurance carried by Stephens represented the amount which Gordon determined to be the full extent of his damages and constituted a waiver of any right he had to uninsured motorist benefits under his policy and the Uninsured Motorist Statute, Section 627.727, Florida Statutes (1975).

Sena v. State Farm Mutual Automobile Insurance Company, 305 So.2d 243 (Fla.3d DCA 1974), which USF&G cited to the Court by way of notice of supplemental authority eleven days ater the release of our opinion, is not applicable to this case because USF&G did not plead the release given by Gordon to Allstate and Stephens as a bar to his uninsured motorist claim against it.

Petition for rehearing denied.

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


text:
    BOARD OF COUNTY COMMISSIONERS, PALM BEACH COUNTY and Nationwide Mutual Insurance Company, Petitioners, v. Michael Joseph RICKLI, a minor, Edith Rickli and Dana M. Rickli, Respondents.
    No. 77-1797.
    District Court of Appeal of Florida, Fourth District.
    May 9, 1978.
    Rehearing Denied June 28, 1978.
    José G. Rodriguez of Montgomery, Lytal, Reiter, Denney & Search, P.A., West Palm Beach, for petitioners.
    Cone, Owen, Wagner, Nugent, Johnson & McKeown, P.A., and Larry Klein, West Palm Beach, for respondents.
   PER CURIAM.

Petition for Writ of Certiorari is DENIED.

CROSS, DAUKSCH and MOORE, JJ., concur.


text:
    STATE of Florida, Petitioner, v. Thomas Allen DONOHOE, Respondent.
    No. 77-2470.
    District Court of Appeal of Florida, Fourth District.
    May 9, 1978.
    Rehearing Denied June 28, 1978.
    Robert L. Shevin, Atty. Gen., Tallahassee, and Basil S. Diamond, Asst. Atty. Gen., West Palm Beach, for petitioner.
    Ned N. Julian, Jr. of Stenstrom, Davis & McIntosh, Sanford, for respondent.
   PER CURIAM.

Petition for Writ of Common Law Certio-rari is hereby DENIED.

CROSS, LETTS and MOORE, JJ., concur.


author: BOYER, Acting Chief Judge. ERVIN, Judge,

text:
    AMERICAN BASEBALL CAP, INC., Appellant, v. Andrew Thomas DUZINSKI, Henry T. Duzinski and Irene Duzinski, Appellees.
    No. HH-148.
    District Court of Appeal of Florida, First District.
    May 9, 1978.
    Rehearing Denied June 14, 1978.

      Alan Thompson of Sale, Bryant, Daniel & Thompson, Panama City, for appellant.
    W. A. Swann, Jr., Pensacola, George A. Cox, for appellees.
   BOYER, Acting Chief Judge.

By this appeal, American Baseball Cap, Inc. (hereinafter defendant) appeals from an order denying its motion to dismiss.

This is the second time this case has been in this court. In a prior appeal from an order denying defendant’s motion to dismiss, this court held that plaintiffs failed to meet their burden of proof of supporting the allegations of their complaint and showing facts sufficient to sustain the propriety of substituted service of process but the plaintiffs were afforded another opportunity to attempt service. (American Baseball Cap, Inc. v. Duzinski, 308 So.2d 639 (Fla. 1st DCA 1975))

The Duzinskis (hereinafter plaintiffs) brought suit against defendant alleging that Andrew Duzinski was injured in 1969 while wearing a baseball helmet manufactured by defendant. The jurisdictional allegations in the complaint were that the defendant “sells, consigns, or leases tangible personal property through brokers, jobbers, wholesalers, or distributors to persons, firms, and corporations in this state . . that although defendant is not licensed to do business in the state of Florida, it “has been doing business in this state”; and that defendant “manufactured the said helmet and sold the same either directly or through jobbers, to the defendant, Northwest Florida Office of School Supply, Inc., of Fort Walton Beach, Florida, who sold the said helmet to the City of Fort Walton Beach, Florida” who furnished it to Andrew Thomas Duzinski. Plaintiffs attempted to obtain substituted service of process on defendant under F.S. 48.161, F.S. 48.181 and F.S. 48.182. Defendant filed a motion to dismiss for lack of jurisdiction over the person, insufficiency of process, and insufficiency of service of process, stating that it was a foreign corporation not doing business in Florida at the time the injury occurred. It is the denial of that motion which is the subject of this interlocutory appeal.

Defendant is a Pennsylvania corporation with a home office in Media, Pennsylvania. At the time of the alleged injury and prior thereto, defendant did not own any property in Florida; did not maintain any office, telephone listing, bank account or business records in Florida; and did not have any salesmen, employees, representatives, dealers, franchises, jobbers, brokers nor agents of any nature in this state. At the time of Andrew Duzinski’s injury, 90% of defendant’s business consisted of sales of its helmets to major sporting goods companies, all of whom were located outside Florida. The remaining 10% of defendant’s business was done pursuant to purchase orders or telephone calls. Defendant contends those orders were shipped F.O.B. directly to the purchaser or as requested by the purchaser. Several of the purchase orders in the record provide that shipments be F.O.B. shipping point. It is the 10% of defendant’s business which is done pursuant to purchase orders that we will be concerned with in this appeal.

Defendant’s president visited Florida several times prior to 1969 and observed major league baseball spring training games. Defendant contends those visits were family vacations and not business trips. However, defendant’s president was unable to produce any proof that it was he and not the corporation who paid his expenses for the trips.

After this court’s decision in the prior appeal, plaintiffs made additional discovery at defendant’s home office in Media, Pennsylvania and found: (1) direct sales to retail sporting goods stores in Florida; (2) direct sales to major league baseball teams in Florida; and (3) direct sales to major sporting goods manufacturers in which shipment was made directly from defendant to retail sporting goods stores in Florida. The records examined represented only the portion of the alphabet from A to G: Those records revealed that defendant shipped in excess of 1,250 helmets to 88 different buyers in Florida who were located in 30 different Florida cities.

F.S. 48.161 relates only to procedure and F.S. 48.182 was not enacted until after the occurrence of the accident giving rise to this controversy. Therefore, the only statute with which we are concerned here is F.S. 48.181, Florida Statutes 1969, which provides:

“48.181 Service on nonresident engaging in business in state.
“(1) The acceptance by any person or persons, individually, or associated together as a copartnership or any other form or type of association, who are residents of any other state or country, and all foreign corporations, and any person who is a resident of the state and who subsequently becomes a nonresident of the state or conceals his whereabouts, of the privilege extended by law to nonresidents and others to operate, conduct, engage in, or carry on a business or business venture in the state, or to have an office or agency in the state, constitutes an appointment by the persons and foreign corporations of the secretary of state of the state as their agent on whom all process in any action of proceeding against them, or any of them, arising out of any transaction or operation connected with or incidental to the business or business venture may be served. The acceptance of the privilege is signification of the agreement of the persons and foreign corporations that the process against them which is so served is of the same validity as if served personally on the persons or foreign corporations.
“(2) If a foreign corporation has a resident agent or officer in the state, process shall be served on the resident agent or officer.
“(3) Any person, firm or corporation which sells, consigns, or leases by any means whatsoever tangible or intangible personal property, through brokers, jobbers, wholesalers or distributors to any person, firm or corporation in this state shall be conclusively presumed to be operating, conducting, engaging in or carrying on a business venture in this state.”

We will consider the three subsections of F.S. 48.181 in reverse order:

Subsection (3) becomes applicable only when the nonresident person, firm, or corporation sells, consigns, or leases tangible or intangible personal property through brokers, jobbers, wholesalers or distributors. A single sale is sufficient. (Dinsmore v. Martin Blumenthal Associates, Inc., 314 So.2d 561 (Fla.1975)) However, in order to invoke subsection (3) for the acquisition of jurisdiction over a nonresident defendant it is necessary that the party attempting to effect service must demonstrate either (1) that the nonresident defendant has some degree of control over the personal property referred to in said subsection (3) of the statute in the hands of the brokers, jobbers, wholesalers or distributors selling or distributing the property in this state, or (2) that the nonresident defendant has some degree of control over the brokers, jobbers, wholesalers or distributors selling or distributing the said personal property in this state. (Fawcett Publications, Inc. v. Rand, 144 So.2d 512 (Fla. 3rd DCA 1962); Dinsmore v. Martin Blumenthal Associates, Inc., supra)

Sub judice, the record does not support any business by defendant “through brokers, jobbers, wholesalers or distributors” in this state. However, even were the retailers to whom direct sales were made or the major sporting goods manufacturers which directed that shipment be to their retail outlets in Florida be construed as either brokers, jobbers, wholesalers or distributors in this state, nevertheless there is no evidence of the requisite control, therefore the plaintiffs may not rely for service upon F.S. 48.181(3).

Plaintiff’s reliance upon Dublin Company v. Peninsular Supply Company, 309 So.2d 207 (Fla. 4th DCA 1975) as authority for the proposition that the trips of defendant’s president to see the major league baseball spring training games constituted acts of control over defendant’s product is misplaced. In that case the company president came to Florida to confer with the plaintiff therein about the product which had been purchased by that plaintiff and to negotiate regarding replacement of the defective product. Under those circumstances the court there found that the company’s interest in its product extended through the distributor to the ultimate purchaser. There is no evidence sub judice that the defendant’s president came to Florida to check up on the performance of the company’s helmets nor to otherwise discuss the product. Instead, the evidence clearly reveals that defendant’s president was an ardent baseball fan and took a spring vacation to Florida so that he might observe spring training games. Even if the company paid for his trip, there is no evidence that any business was transacted nor that his presence in Florida related to any control over any distributors of the product nor the product itself.

Plaintiffs further argue that because the face of some of the purchase orders contain an indemnity clause concerning damage resulting from defects that the defendant’s association with the product did not end when the product was shipped to Florida. However, those purchase orders were made out to the distributors of the helmets and are not evidence that defendant’s interest in its product extended through the distributor to the ultimate purchaser.

We agree with the defendant that as to the requirement of control, this case is more analogous to decisions in Cooke-Waite Laboratories, Inc. v. Napier, 166 So.2d 675 (Fla. 2d DCA 1964) and AB CTC v. Morejon, 324 So.2d 625 (Fla.1975) in which, as here, the defendant exercised no control over the product nor the distributors. The distribution of the defendant’s helmets is similar to the distribution of magazines, washing machines and needles in the cases of Fawcett Publications, Inc. v. Rand, supra, AB CTC v. Morejon, supra, and Cooke-Waite Laboratories, Inc. v. Napier, supra, respectively, since control was severed at the time of the initial sale and distribution. This situation is unlike that of giving a listing to a broker wherein the seller’s control over the listing agreement and the broker continues. (Dinsmore v. Martin Blumenthal Associates, Inc., supra)

Continuing in inverse order of consideration, it is not even contended that subsection (2) of F.S. 48.181 is here applicable.

We now turn our consideration to F.S. 48.181(1). Since the defendant had no office nor agency in the state of Florida said subsection (1) may be invoked sub judi-ce only if it operated, conducted, engaged in, or carried on a business or business venture in the state. As already observed, the defendant’s contacts with the state of Florida were minimal. Its president vacationed in the state as millions of nonresidents do each year and as the tourist industry hopes will continue. Those visits will not subject the defendant to substituted service of process. The sales to nonresident major sporting goods companies which were shipped in accordance with the purchaser’s directions to sales outlets in Florida could not constitute the doing of business in Florida because, as already noted, those companies were not “brokers, jobbers, wholesalers or distributors” in this state; and even if they were, neither they nor the product after it reached them were under the control of the defendant. (See Dinsmore v. Martin Blumenthal Associates, Inc., supra) The defendant did, however sell some helmets from its Pennsylvania headquarters directly to Florida retailers and a few helmets were sold directly to major league baseball teams training in Florida. Nevertheless, if we properly construe Fawcett Publications, Inc. v. Rand, supra, specifically cited, quoted from and approved by the Supreme Court of Florida in Dinsmore v. Martin Blumenthal Associates, Inc., supra, direct sales by a foreign corporation, not otherwise doing business in Florida, from a place of business not in this state, to retailers in Florida, when no control is retained by the foreign corporate seller, does not constitute operating, conducting, engaging in, or carrying on a business or business venture in Florida within the meaning and contemplation of F.S. 48.181(1). In the Fawcett case the foreign corporation sold its product (magazines) to “independent contractors” in Florida, which sold to newsstands, which in turn sold to the general public. That activity was held not sufficient to authorize substituted service pursuant to F.S. 48.181(1). We are unable to distinguish between sales to “independent contractors” in the state and retailers in the state: Neither do we denote a logical distinction between sales to an independent contractor or retailer on the one hand (over which the seller has no control) and a sale to an ultimate user on the other. In each instance, if the sale is made via interstate commerce from out-of-state the seller’s interest in the product ends when it is sold, delivered and paid for. If this reasoning is sound then the sales sub judice directly to retailers in Florida and to the major league baseball teams in Florida would not be sufficient to invoke the aid of F.S. 48.181(1). We have not overlooked the decisions of our sister court of the Third District in Sayet v. Interstate Blood Bank, Inc., 245 So.2d 142 (Fla. 3rd DCA 1971) and Eder Instrument Co. v. Allen, 253 So.2d 902 (Fla. 3rd DCA 1971). However, in each of those cases the court “admitted” that the decision was influenced by “a strong feeling of public policy” where human blood in the first instance and medical instruments in the latter were the products involved.

We find ourselves, though, in the same position sub judice as did our sister court of the Fourth District in Manus v. Manus, 193 So.2d 236 (Fla. 4th DCA 1966) wherein the author of that opinion stated:

“ * * * Since the alleged cause of action against this foreign corporation is not shown to have arisen out of an obligation or cause connected with the activities of this foreign corporation in this state, we cannot reach the question of whether or not this foreign corporation was doing business in this state.” (193 So.2d at page 238)

The same is true here: Although we have stated our views, it is not necessary sub judice that we determine whether the direct sales above mentioned constitute “doing business” in this state, or are sufficient to demonstrate the “minimal contacts sufficient to meet due process requirements” (Dinsmore v. Martin Blumenthal Associates, Inc., supra, and authorities therein cited) because there is no showing at all that the plaintiff’s cause of action against defendant arose out of an obligation or cause connected in any manner with defendant’s activities in this state. It has been repeatedly held that in order to invoke application of F.S. 48.181 it is necessary that the alleged cause of action arise out of a transaction or operation connected with or incidental to the activities of the nonresident in the state of Florida. See American Baseball Cap, Inc. v. Duzinski, supra, and the numerous cases therein cited; Holiday Inns, Inc., etc., et al. v. Jamison, 353 So.2d 1269 (Fla. 1st DCA 1978). See also Shaffer v. Heitner, 433 U.S. 186, 97 S.Ct. 2569, 53 L.Ed.2d 683 (1977) wherein the court held invalid the assertion by a state of personal jurisdiction over defendants on the basis of property owned by them located in that state, saying:

“ * * * Yet that property is not the subject matter of this litigation, nor is the underlying cause of action related to the property. * * * ” (433 U.S. at page 213, 97 S.Ct. at page 2585).

It has also been repeatedly held that statutes providing for substituted service must be strictly construed and that the party seeking to effect service thereunder has the burden of presenting facts which clearly justify the applicability of the statute. (American Baseball Cap, Inc. v. Duzinski, supra, and cases therein cited)

Plaintiffs having failed to demonstrate the applicability of either of the three subsections of F.S. 48.181 and this court having determined in the prior appeal hereinabove mentioned the inapplicability of F.S. 48.182, the order of the learned trial judge denying appellant’s motion to dismiss for lack of jurisdiction is reversed.

In order to facilitate review by the Supreme Court of Florida we hereby, pursuant to Rule 9.030(a)(2)(A)(ii) Fla.R.App.P., certify this decision as passing upon a question of great public interest.

REVERSED.

MILLS, J., concurs.

ERVIN, J., specially concurs.

ERVIN, Judge,

specially concurring.

I reluctantly concur in the conclusion of this ease because it appears to be governed by the opinions of the Florida Supreme Court in Dinsmore v. Martin Blumenthal Associates, Inc., 314 So.2d 561 (Fla.1975) and AB CTC v. Morejon, 324 So.2d 625 (Fla.1976), requiring control by the nonresident defendant over the distributor before the nonresident can be held to be doing business within the state pursuant to Section 48.181(1) or (2). Nevertheless the facts as recited in Dinsmore and Morejon are vastly different from those involved here. In Dinsmore there was no showing that the nonresident defendant established minimal contacts so as to subject it to personal service within the forum state. The facts in Dinsmore showed only one isolated exchange of stock outside the State of Florida. Clearly, as the Supreme Court stated, the provisions of Section 48.181(1) were not met by plaintiff since there was no showing that the defendant was conducting a general course of business activity within the State of Florida. The facts recited in Mo-rejon were the same. There the plaintiff filed a complaint in Florida against AB CTC, a Swedish corporation, and Bermil Industries, a Swedish independent contractor. The facts did not recite the sale in Florida of any washing machine other than the washing machine which caused plaintiff’s injuries.

The facts here are entirely different. The record is replete with numerous direct sales from the manufacturer in Pennsylvania to retail sporting goods stores in Florida. Clearly, on constitutional principles alone, there would be no violation of due process if the defendant were held subject to personal service. “[D]ue process requires only that in order to subject a defendant to a judgment in personam, if he be not present within the territory of the forum, he have certain minimum contacts with it such that the maintenance of the suit does not offend ‘traditional notions of fair play and substantial justice.’ ” International Shoe Company v. Washington, 326 U.S. 310, 316, 66 S.Ct. 154, 158, 90 L.Ed. 95 (1945). To determine whether the contacts of the nonresident defendant are sufficient to subject it to personal service, the presence of such defendant “has never been doubted when the activities of the [defendant] corporation . . . have not only been continuous and systematic, but also give rise to the liabilities sued on, . ” Id. at 317, 66 S.Ct. at 159. Additionally, once minimal contacts are established, even though there may be inconvenience to the nonresident defendant if it were held amenable to suit in the forum state, such inconvenience does not amount to a denial of due process. McGee v. International Life Ins. Co., 355 U.S. 220, 78 S.Ct. 199, 2 L.Ed.2d 223 (1957). Two recent cases from our court, construing the effect of a different statute, Section 48.193, Florida Statutes (1975), invalidated attempts at personal service because the requisite contacts by the nonresident were not made. Dunn v. Upjohn Co., 350 So.2d 127 (Fla. 1st DCA 1977); Jack Pickard Dodge, Inc. v. Yarbrough, 352 So.2d 130 (Fla. 1st DCA 1977).

In addition to establishing minimal contacts in Florida, American Baseball Cap’s business activities were in compliance with the Dinsmore court’s construction of subsection (1), that the nonresident carry on a general course of business activity within the forum state. Yet Dinsmore continues, although subsection (1) does not expressly require control, “ . . . we hold that the requisite control, as explained herein, is also applicable to § 48.181(1), where the nonresident is doing business through brokers, jobbers, wholesalers or distributors.” Id. at 566. Obviously there was no control by American Baseball Cap over retail distributors in Florida. Nor was there control by Fawcett Publications, a Delaware Corporation (Fawcett Publications, Inc. v. Rand, 144 So.2d 512 (Fla. 3d DCA 1962), which Dinsmore and Morejon cite with approval) over magazine distributors in Florida. Nevertheless no violence would be done to any constitutional principle if American Baseball Cap were held amenable to suit in Florida, yet because of the limited construction placed upon Section 48.181(1), a resident who alleges serious injury caused by a defectively manufactured baseball helmet, placed into interstate commerce by a national manufacturer, has no access to the courts within the state where he resides. Surely, Florida, as did the state of California in McGee v. International Life Ins. Co., supra, has a “manifest interest” in providing redress to its residents whose injuries are caused by defectively manufactured products and who otherwise would be at a severe disadvantage if forced to go to a distant state to hold the nonresident legally accountable.

Additionally I find myself in disagreement with the court’s conclusion that there was no showing that the plaintiff’s cause of action arose out of an obligation or cause connected in any manner with defendant’s activities in this state. The plaintiffs complaint specifically alleged that the defendant manufactured the helmet and sold the same either directly or through jobbers to the defendant, Northwest Florida Office of School Supply, Inc. of Ft. Walton Beach, Florida, who sold the said helmet to the City of Ft. Walton Beach, Florida. I suggest that this is a sufficient allegation of nexus to the injury which was alleged.

I concur that the question is one of great public importance.

      . Indeed, when subsection (1) was first enacted by Ch. 57-747, Laws of Florida, the legislative intent was expressed in the preamble to the act as follows:
      AN ACT to amend Section 47.16, Florida Statutes, [the predecessor statute to 48.181] to include foreign manufacturers doing business in Florida through brokers, jobbers, wholesalers or distributors.
      WHEREAS, persons, firms and corporations in other jurisdictions are directly or indirectly furnishing millions of dollars worth of tangible and intangible personal property to persons, firms and corporations in this state each year; and
      WHEREAS, litigation in both tort and contract frequently arises out of the purchase, lease, consignment, use and consumption of such property each year; and
      WHEREAS, the cost and expense of going to other jurisdictions, both national and international, frequently has the practical effect of denying all rights and remedies regarding such purchase, lease, consignment, use and consumption; and
      WHEREAS, it is just and fair that such litigation be conducted in this state rather than in a foreign jurisdiction, NOW THEREFORE.