author: PEARSON, Judge.

text:
    Lawrence BUCCI, Appellant, v. Anna D. BUCCI, Appellee.
    Nos. 76-1607 and 76-2132.
    District Court of Appeal of Florida, Third District.
    Sept. 13, 1977.
    Rehearing Denied Nov. 1, 1977.

      Martin D. Kahn, North Miami, for appellant.
    Snyder, Young, Stern, Barrett & Tan-nenbaum and Paul R. Lipton, North Miami Beach, for appellee.
    Before HENDRY, C. J., and PEARSON and BARKDULL, JJ.
   PEARSON, Judge.

These appeals are from a final judgment of dissolution of marriage and a post-judgment order awarding the wife attorney’s fees. The husband, Lawrence Bucci, urges error upon two of the provisions of the final judgment dissolving his marriage to Anna D. Bucci. He urges that the court erred in granting the wife periodic alimony in the amount of $750 per month and in granting the wife the marital home as lump sum alimony. On this appeal from the post-judgment order, he urges error in the allowance of an attorney’s fee of $7,500 to the wife. The husband has also presented two other points, the first of which is procedural in nature, the other urging the application of rehabilitative alimony. As neither point presents error, no discussion is called for.

The parties to this marriage are both members of endangered species. The husband is a small businessman who operates on a cash basis, owes no one, has no credit history, and has accumulated some thousands of dollars in property, all of which is free of encumbrances. The wife is a housewife and nothing more. She helped her husband for some six months when he was first starting his business, then raised a family and since then has not been employed and has no training. At fifty-two years of age, she has little prospect of earning a living unless she is willing to return to school to learn a trade. The marriage itself was unusually durable, having survived thirty-two years of hard work and the troubles incident to raising a family.

The properties owned by the parties consist of the following: (1) the marital residence, for which the record gives an approximate value of $70,000; (2) the real property upon which the husband operates his business, estimated by the parties at a value of $75,000; (3) real property in Port St. Lucie, Florida, valued by the parties at $20,000; (4) real property in Delray Beach, Florida, valued by the parties at $20,000; and (5) a parcel of land sold by the parties during the pendency of the dissolution action for $49,161.60. This amount was held in escrow pending the final judgment. All of these properties were held in an estate by the entirety.

The trial judge correctly held that the parties became tenants in common of all these properties upon the dissolution of marriage except the marital residence property, with regard to which he held as follows:

“B. The Respondent, LAWRENCE H. BUCCI, is ordered to pay to the Petitioner, ANNA D. BUCCI, as and for periodic alimony, the sum of Seven Hundred Fifty Dollars ($750.00) each month commencing on the first day of each month and continuing thereafter on the first day of each and every month until her remarriage or her death, whichever occurs first. In addition to the foregoing periodic alimony payments, the Petitioner, ANNA D. BUCCI, is awarded as and for lump sum alimony all right, title and interest in the home of the parties located at 830 N.E. 115th Street, Miami, Florida, together with all of the furnishings, fixtures and equipment located therein . . . ”
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The trial judge made extensive findings of fact:

“3. The parties were married to each other on September 1, 1944 and cohabi-tated as Husband and Wife until a few years preceding the final hearing in this cause.
“4. There were two children born of this marriage, LAURA and ADELE, both of whom have reached their majority and are living separate and apart from their parents and are fully emancipated.
“5. That this is a marriage of approximately thirty-two (32) years duration, during which time the Wife maintained the marital home faithfully and raised two healthy responsible children who have now reached majority.
“6. The Wife is fifty-two years old and the Husband is fifty years old. The Wife is a graduate of high school. The Wife has never worked, except for approximately six (6) months during 1952 when the parties first moved to Florida and they purchased a Shell Service Station. During that six (6) month period of time the Wife, not only maintained the marital home and raised the children, but pumped gas, serviced cars and assisted the Husband in the service station without receiving any salary. As a result of this joint effort, the business began to flourish and today the Husband owns his own paint and body shop.
“7. During the later years of the marriage, irreconcilable differences arose causing the parties to live separate and apart for approximately two (2) years prior to the final hearing in this cause.
“8. That during the course of the marriage, the Husband worked on a regular basis and has been the sole means of support to the Wife. The Husband always furnished the Wife with a ear and all expenses to her daily needs and maintenance. The Husband’s business has largely been one based on cash and during the years of the marriage the parties purchased and now own extensive parcels of real property as tenants by the entirety. All the property is owned free and clear and totally unencumbered from any mortgage or debt. The unencumbered parcels owned are: Four lots in Port St. Lucie, Florida; Eight lots in Delray Beach, Florida (as testified to by the parties and offered into evidence); Business property located at 1501 N.E. 130th Street, North Miami, Florida; Marital home located at 830 N.E. 115th Sreet, Miami, Florida.
“9. The parties sold a parcel of land to Southern Bell Telephone and Telegraph Company and received $49,161.60. Said amount is being held in a savings account at First Federal Savings and Loan Association of Miami.
“10. During the course of the marriage the Husband maintained a good standard of living for his family without becoming indebted to anyone.
“11. The Court has reviewed the financial affidavits submitted by the respective parties. The Wife does not have the capacity or ability to support herself in the standard of living maintained by the Husband, while a review of the Husband’s financial affidavit and testimony as to the standard he maintained for his family and the lack of indebtedness to anyone, supports the finding that the Husband has the capacity and ability to provide for his own financial needs and that of the Wife.”

Turning first to appellant’s point urging error as to the amount of the periodic alimony, we find no error. The appellant has not been able to point out where any of the findings of fact made by the trial judge were not supported by the evidence. It is true that the parties’ joint income tax returns for the past several years do not reflect an income from the paint and body shop sufficient to justify a monthly award of $750. However, there is evidence in the record, which the trial judge obviously believed, that the husband has available other resources. This evidence is reasonable because of the relatively high standard of living that the parties have enjoyed in the last few years. We have previously had occasion to point out that where a husband has set a standard of living different from his ledger sheets and has maintained that standard over some period of time, the court is justified in holding that he has funds which are not visible. See Klein v. Klein, 122 So.2d 205 (Fla. 3 DCA 1960); Farbman v. Farbman, 208 So.2d 648 (Fla. 3d DCA 1968). The Supreme Court of Florida has approved the proposition that the amount of alimony need not always be measured by the present earnings of the husband. See Keller v. Keller, 308 So.2d 106 (Fla.1974).

Appellant’s point directed to that portion of the judgment awarding the marital home to the wife as lump sum alimony points out that there are no minor children or dependents to use the home except the wife. Appellant urges that where the wife has received substantial property as a result of the dissolution of the marriage, that she ought not be awarded the home merely because it is a convenient place for her to live. The court clearly has the authority to order the husband to convey to the wife his undivided interest in property they own as tenants in common as lump sum alimony. See Jones v. Jones, 330 So.2d 536 (Fla. 1st DCA 1976). However, as pointed out in that case, lump sum alimony should, be awarded only in those instances where some special equity requires it, and it is justified only where it serves a reasonable purpose such as rehabilitation or the protection of children, which is of advantage to both of the parties. This record is devoid of any proof or claim of a special equity in any of the various properties held by the entirety. The Supreme Court of Florida in the recent case of Ball v. Ball, 335 So.2d 5 (Fla.1976), held:

“The premise that record title bespeaks an equal division is, of course, only the starting point for a property division. Either spouse has the right to attempt to establish a ‘special equity’ in the realty by reason of his or her extraordinary contribution toward its acquisition, either financially or through personal industry and service to the other party. The other party, of course, can negate the attempted showing or affirmatively attempt to show that a gift was intended. We are not now called upon to determine the range of circumstances which might create a special equity. Consistent with pri- or decisional law, however, we hold that a special equity is created by an unrebutted showing, as was developed here, that all of the consideration for property held as tenants by the entireties was supplied by one spouse from a source clearly unconnected with the marital relationship. In these cases the property should be awarded to that spouse, as if the tenancy were created solely for survivorship purposes during coverture, in the absence of contradictory evidence that a gift was intended.”

As has been pointed out in Cann v. Cann, 334 So.2d 325 (Fla. 1st DCA 1976):

“The requirement that lump sum alimony be based upon special equities must not be confused with an award in a dissolution of marriage action to a spouse who has acquired a special equity in property accumulated during the marriage.”

We have searched the record for any basis for the trial judge’s finding that the wife is entitled to lump sum alimony. The home and all of its improvements were simply the result of the joint effort of the marriage partners. As a result of the dissolution of marriage, the wife is in as good a financial position as the husband. In fact, she owns a one-half interest in the property on which the husband’s business is conducted. As was pointed out in Steinhauer v. Steinhauer, 252 So.2d 825 (Fla. 4th DCA 1971), a wife does not become entitled to the marital home by the fact that she is a good wife. In that case, it was held that a jointly held domicile ought to be divided equally between the partners with the wife’s and the husband’s financial contribution to acquisition of the property to be considered as gifts to each other. Also cf. Hanzelik v. Hanzelik, 294 So.2d 116 (Fla. 4th DCA 1974). Our holding is that in the present case the record does not support the award of the marital residence to the wife either because of a special equity or because of a need for lump sum alimony.

Following the final judgment, the trial court awarded to the wife’s attorney the sum of $7,500 as attorney’s fees. The husband has appealed the order. He urges that the order requiring him to pay the wife’s attorney is not supported by the final judgment which shows that the wife has approximately the same resources that he does and that she is the owner of substantial property including the liquid assets from the sale of the property sold during litigation. We agree and reverse the order assessing attorney’s fees. In Patterson v. Patterson, 348 So.2d 592 (Fla. 1st DCA 1977), opinion filed June 30, 1977, the court reversed an order allowing attorney’s fees for a post-judgment proceeding relative to child support. We recognize that the fee allowed in the present instance was not for a post-judgment proceeding but for the dissolution proceeding. Nevertheless, we think that the principles set forth in the Patterson opinion are the ones applicable for an award of an attorney’s fee in a dissolution proceeding. The court stated:

“To support an award of attorney’s fees, the prevailing party must establish that the fee is reasonable, that the requesting party is unable to pay the fee, and that the opposing party is able to pay. 10A Fla.Jur., ‘Dissolution of Marriage, etc.’, Sections 225, 229. See also Johnson v. Johnson, 346 So.2d 591 (Fla. 1st DCA 1977). It is not, of course, necessary that the requesting party, in order to establish inability to pay, be proven destitute. But, as the statute recites, the financial resources of both parties must be considered and when the requesting party has been shown to have the ability to pay for the services of his or her attorney then it is improper to require payment by the other party even though he or she may have the ability.”
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In the cause now before us, it is apparent that the wife has extensive financial resources and that although the visible property is equally divided, the husband is burdened with the payment of periodic alimony. We hold, therefore, that the need of the wife for attorney’s fees has not been established and that the award must be reversed. See the rule in McKennon v. McKennon, 312 So.2d 804 (Fla. 1st DCA 1975); and cf. Ross v. Ross, 341 So.2d 833 (Fla. 3d DCA 1977).

Accordingly, the final judgment is affirmed in part and reversed as to the award of the marital residence which shall remain as an estate in common. The order awarding attorney’s fees is also reversed.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    CITY GAS COMPANY OF FLORIDA, Appellant, v. RO-MONT SOUTH GREEN CONDOMINIUM “R”, INC., etc., et al., Appellees.
    No. 77-1274.
    District Court of Appeal of Florida, Third District.
    Sept. 13, 1977.
    Rehearing Denied Nov. 2, 1977.

      Dubbin, Schiff, Berkman & Dubbin and Evan Langbein, Miami, for appellant.
    Smith, Mandler, Smith, Werner & Jaco-bowitz and Patricia Silver, Miami Beach, Robert Bakerman and Ira B. Price, Miami, for appellees.
    Before BARKDULL, NATHAN and HUBBART, JJ.
   PER CURIAM.

By this appeal, the appellant seeks review of an order denying a motion to dissolve an injunction. The injunction required the ap-pellees to deposit money periodically in the registry of the court and the clerk to turn the monies over to the appellant for gas services, when it was required to resume serving a 644-unit condominium.

At the time the order under review was entered, the appellant had been made a party-defendant by court order; had been served with process and a complaint. The principal grounds urged for reversal are alleged defects in the procedures utilized by the chancellor at the time of the entry of the temporary injunction.

We determine this appeal not on the record as was before the chancellor at the time of the entry of the temporary injunction, but as the record was at the time the motion to dissolve came on for hearing. In this connection, see: Belk’s Department Store, Miami, Inc. v. Scherman, 117 So.2d 845 (Fla. 3d DCA 1960); DeCarlucci v. Granulite, Incorporated, 171 So.2d 587 (Fla. 2d DCA 1965).

From an examination of all the pleadings and the statements of respective counsel, we cannot say that the trial court abused any discretion in denying the motion to dissolve and, therefore, the order under review be and the same is hereby affirmed. This, of course, is without prejudice to the appellant seeking appropriate relief in the trial court as to the adequacy of the amount to be posted periodically in the registry of the court by the appellees, and' to seek such other relief as may be necessary to require compliance with the temporary injunction.

Affirmed.


text:
    George RALSTON, Appellant, v. The STATE of Florida, Appellee.
    No. 76-1133.
    District Court of Appeal of Florida, Third District.
    Sept. 20, 1977.
    Rehearing Denied Nov. 2, 1977.

      Bennett H. Brummer, Public Defender and Paul Morris, Asst. Public Defender, for appellant.
    Robert L. Shevin, Atty. Gen., and Ira N. Loewy, Asst. Atty. Gen., for appellee.
    Before BARKDULL, HAVERFIELD and NATHAN, JJ.
   PER CURIAM.

The appellant was convicted of involuntary sexual battery after a jury trial. By this appeal, he contends that the trial court committed error in failing to respond to a question from the jury:

“Could there be such a thing as implied consent? Is implied consent a defense?”

He further contends that the trial court erred in failing to grant his motion for judgment of acquittal at the conclusion of all the evidence. We affirm.

As to the first point, the trial court correctly declined to respond to the question by the jury in regard to implied consent. Consent by the prosecutrix is a complete defense to the crime charged. The consent may be actual or implied. Whether or not the facts, as determined by the jury, support such a defense is for determination by the jury, and the trial court was not required to give a specific instruction on “implied consent”. Danford v. State, 53 Fla. 4, 43 So. 593 (1907); Lindberg v. State, 134 Fla. 786, 184 So. 662 (1938); Wester v. State, 141 Fla. 374, 193 So. 303 (1940); State v. Bryan, 287 So.2d 73 (Fla.1973).

As to the last point, the prosecutrix’ testimony alone (which was obviously believed by the jury) was sufficient to make out a prima facie case and, therefore, no error was made by the trial court in denying the motion for judgment of acquittal. State v. Smith, 249 So.2d 16 (Fla.1971); State v. Riggins, 314 So.2d 238 (Fla. 4th D.C.A. 1975); Berezovsky v. State, 335 So.2d 592 (Fla. 3rd D.C.A. 1976).

The conviction under review be and the same is hereby affirmed.


author: BARKDULL, Judge. PER CURIAM.

text:
    Gilberto HERNANDEZ, Jr., Juan Hernandez, Mercedes Hernandez, Hernandez Properties, Inc., previously known as Hernandez Office Machines Corporation, Custodian of the Records of Hernandez Properties, Inc., Petitioners, v. STATE of Florida and Richard Gerstein, State Attorney for the Eleventh Judicial Circuit, Respondents.
    No. 77-132.
    District Court of Appeal of Florida, Third District.
    Sept. 20, 1977.
    On Rehearing Oct. 17, 1977.

      Stephen L. Raskin, Miami, for petitioners.
    Richard E. Gerstein, State Atty., and Paul M. Rashkind, Asst. State Atty., for respondents.
    Before BARKDULL, HAVERFIELD and NATHAN, JJ.
   BARKDULL, Judge.

Petitioners seek to have this court overturn a trial court’s order denying their motions to quash.

During December of 1976, the respondent, Dade County State Attorney’s Office [in the course of investigation of possible crimes], issued subpoenas duces tecum to the “Custodian of Records of Hernandez Properties, Inc.”, directing the eleven specific types of records of the respondent corporation be produced, as follows:

* * * * * *
“1. All corporate books, including but not limited to, the General Ledger and Cash Disbursement Journals.
“2. All corporate memoranda submitted to members of the sales staff.
“3. Corporate financial statements of the said corporation.
“4. All corporate documents, including tax records, which identify the employees of the said corporation, the duration of their employment, and their earnings in 1973, 1974, 1975, and 1976.
“5. Corporate income tax reports of the said corporation for the years 1974 and 1975.
“6. All cancelled corporate checks, bank statements, invoices, and other supporting documents relating to these disbursements or copies thereof, reflecting the expenditures of the said corporation.
“7. Any corporate documents including contracts, receipts, bills, invoices, etc., for the purchase and sale of business machines in your inventory from January 1, 1976 to present.
“8. Corporate stock record books.
“9. Corporate minute books.
“10. Any and all corporate accounts, contracts, cancelled checks, or the like, which identify customers of the said corporation, and establish the nature of the transactions of the corporation.
“11. Any list or lists of customers of the said corporation.”

The petitioner filed motions to quash, asserting inter alia that the subpoenas violated the Fourth and Fifth Amendments to the United States Constitution and provisions of the Florida Constitution. The trial court denied the motions, stating that the subject subpoenas duces tecum were not overly broad and not violative of the Constitutions.

We find no departure from the essential requirements of the law as to the trial judge’s ruling on the documents required in Numbers 4, 5, 7, 8, and 9 listed above, but we do find that the requests contained in Numbers 1, 2, 3, 10, and 11 to be overly broad, are not definite as to subject matter, and are too expansive in not containing any time limitations. Vann v. State, 85 So.2d 133 (Fla.1956); Imparato v. Spicola, 238 So.2d 503 (Fla. 2nd D.C.A. 1970). In the latter cited case, the following is found at p. 511:

“A subpoena duces tecum may not lawfully require the production of a mass of books and papers, merely so that one may search through them to gather evidence; and an omnibus subpoena for all, or even a substantial part, of the books or records of the subpoenaed party is invalid. 97 C.J.S. Witnesses § 25h, p. 391. Such a subpoena which is unreasonable and oppressive violates the constitutional guaranty, as where it is of too broad and sweeping a character. Hence, the books and papers of which production is compelled must be specifically described so that they may be identified and the information sought indicated. 79 C.J.S. Searches and Seizures § 36, p. 802.”
* * * * * *

Therefore, we find that the trial judge departed from the essential requirements of law in requiring production in accordance with these requests, and quash so much of his order as relates to Numbers 1, 2, 3, 10, and 11 identified above.

Before BARKDULL, HAVERFIELD and NATHAN, JJ.

ON PETITION FOR REHEARING GRANTED

PER CURIAM.

Petitioner has pointed out to us that we failed to rule on category number 6. There being no time limitation as to the subject matter with respect to the documents enumerated in item 6, so much of the trial judge’s order under review that relates thereto be and the same is hereby quashed.


author: HUBBART, Judge.

text:
    Elaine AUGUST, Appellant, v. Fred AUGUST, Appellee.
    No. 77-732.
    District Court of Appeal of Florida, Third District.
    Sept. 20, 1977.
    Rehearing Denied Nov. 2, 1977.

      Shevin, Shapo & Shevin and David A. Freedman, Miami, for appellant.
    Fine, Jacobson, Black, Goldberg & Semet and Mitchell R. Bloomberg, Miami, for ap-pellee.
    Before BARKDULL, NATHAN and HUBBART, JJ.
   HUBBART, Judge.

By this interlocutory appeal, we are asked to review a trial court order dismissing one count of a post-judgment petition to set aside a final judgment of divorce. In such count, the appellant-wife (Elaine August) alleged that the final judgment should be set aside because of certain misconduct committed by the appellee-husband (Fred August) which led to a property settlement agreement later incorporated into the final judgment. The alleged misconduct consisted of undue influence, duress, and fraudulent concealment of assets. We affirm.

The law is clear that a post-judgment petition to set aside a final judgment on the grounds of fraud (intrinsic or extrinsic), misrepresentation, or other misconduct of an adverse party must be brought not more than one year after the final judgment is entered. Fla.R.Civ.P. 1.540(b). Since the instant petition was brought approximately eighteen months after the entry of the divorce judgment, the petition was untimely and the trial court properly dismissed it. See Wilder v. Wilder, 251 So.2d 311 (Fla. 4th DCA 1971).

Scales v. Scales, 237 So.2d 50 (Fla. 3d DCA 1970), does not compel a contrary result. In that case, this court held that the proper venue for an action to modify a divorce judgment was in the court which originally entered the judgment. In obiter dicta, the court quite properly rejected a contention made by one of the parties that an attack on the divorce decree was forever precluded because one year had elapsed from the date of the entry of the decree. Fla.R.Civ.P. 1.540(b) specifically provides that an independent action may be filed at any time to relieve a party from a judgment for fraud upon the court. No such independent action has been filed in this case, and, in any event, the alleged fraud herein does not constitute a fraud upon the court. Alexander v. First National Bank of Titusville, 275 So.2d 272 (Fla. 4th DCA 1973).

For the above reasons, the order appealed from is in all respects affirmed.

Affirmed.


author: SMITH, Judge. SMITH, Judge.

text:
    Richard Allen LeSUER, etc., Appellant, v. Joseph C. LeSUER et al., Appellees.
    No. DD-324.
    District Court of Appeal of Florida, First District.
    Sept. 23, 1977.
    Rehearing Denied Oct. 26, 1977.
    Marvin A. Urquhart, Jr., of Urquhart & Austin, Panama City, for appellant.
    Ernest W. Welch of Welch, Hilton, Bennett, Logue & Burke, P.A., and Stephen H. Kurvin of Sale, Bryant, Daniel & Thompson, Panama City, for appellees.
   SMITH, Judge.

Plaintiff Allen LeSuer, injured at work on January 31, 1971, appeals from a summary judgment entered for the allegedly negligent operator and the owners of a crane that was engaged in loading scrap for Allen’s employer, American Scrap Metal Company, Inc. At issue is whether defendants are immune from tort liability under Florida’s workmen’s compensation law as it then existed, Section 440.11, Florida Statutes (1971). We hold defendants are not immune and that the summary judgment should be reversed.

American, Allen’s employer, wished to load the scrap it recently purchased. Defendant Joseph LeSuer, who was not otherwise associated with American, was induced by a family relationship to lend and operate a crane owned by Joseph and his partner, defendant Herman Currie. Allen sustained an electrical injury when Joseph touched a high voltage wire with the crane’s boom.

The trial court held Joseph “was an employee or borrowed servant” of American and that, as such, Joseph individually and he and his partner, as owners of the crane, partake of American’s immunity as Allen’s employer. Section 440.10, Florida Statutes (1971), required an employer subject to the act to provide workmen’s compensation benefits for his employees and required a general contractor to provide benefits for his own and his subcontractors’ employees. Section 440.11 made their liability for benefits “exclusive and in place of all other liability.”

An exact classification of Joseph’s role on the job is unnecessary to the determination of his eligibility for immunity under the act. Whether considered as American’s general or special employee, a volunteer, or a direct and independent contractor engaged by American, Joseph is liable to Allen for negligence.

Joseph was assuredly not Allen’s employer. Nor was Joseph a subcontractor under American as contractor, for American had no general contract for the work at hand but was in effect the owner of the work. Smith v. Ussery, 261 So.2d 164 (Fla.1972). Joseph was no one’s general employee so he cannot be considered a lent or special employee of American for purposes of fixing American’s liability for workmen’s compensation benefits, and American’s tort claim immunity, on account of injury to Joseph; but that is irrelevant because Joseph was not injured and American’s liability is not in issue. A general employee remains liable to an injured fellow employee for negligence. Frantz v. McBee Co., 77 So.2d 796 (Fla.1955) retracted intimations to the contrary in Younger v. Giller Contr. Co., Inc., 143 Fla. 335, 341, 196 So. 690, 693 (1940). A lent or special employee is similarly liable. Berrier v. Associated Indem. Co., 142 Fla. 351, 196 So. 188 (1940) and Shelby Mut. Ins. Co. v. Aetna Ins. Co., 246 So.2d 98 (Fla.1971) are not to the contrary; they simply established the special employer’s liability for compensation benefits and his corresponding immunity from liability for the lent employee’s tortious injury to a fellow servant. Nor does Joseph acquire an employer’s immunity under the doctrine of Smith v. Ryder Truck Rentals, Inc., 182 So.2d 422 (Fla.1966); Zenchak v. Ryder Truck Rentals, Inc., 150 So.2d 727 (Fla.3d DCA 1963), and Smith v. Poston Equip. Rentals, Inc., 105 So.2d 578 (Fla.3d DCA 1958), which extended immunity to the lessor of a vehicle, supplied with or without an operator employee of the lessor, to the injured person’s employer. Here there was no lease, so the crane was not “equivalent” to one owned by American. Smith v. Ryder Truck Rentals, Inc., 182 So.2d at 424.

Neither Joseph individually nor Joseph and his partner, as owners of the crane, are immune from Allen’s suit by reason of Section 440.11. Any question of the owner partners’ vicarious liability for Joseph’s allegedly negligent operation of the crane, because of the dangerous instrumentality doctrine, was not passed on in the trial court, nor briefed here, and so not decided.

REVERSED.

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

ON PETITIONS FOR REHEARING

SMITH, Judge.

The petitions of appellees for rehearing suggest that our opinion, characterizing the relationships between the parties, gives the appearance of deciding certain factual issues favorably to plaintiff and appellant. If so, that was unintended. We necessarily characterized those relationships, based on evidence in the summary judgment record before us, when analyzing the issues. The central issue was whether summary judgment for appellees should have been entered. In deciding it should not have been entered on this record, we do not preclude renewed consideration of a motion for summary judgment based on controlling facts not before us. Nor should our decision be read as granting partial summary judgment for plaintiff, or as precluding proof that may ultimately sustain appellees’ position.

The prayer of the petition for rehearing is DENIED.

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

      . A 1974 amendment to § 440.10, not here pertinent, withholds immunity from a subcontractor whose employee negligently injures the employee of another subcontractor. Ch. 74-197, § 6, Fla.Laws; § 440.10(1), Fla.Stat. (1975).

      . “They [statutory fellow servants] were never to be considered inter se third parties as to each other . . . 143 Fla. 335, 341, 196 So. 690, 693 (1940) (dictum).


author: DOWNEY, Judge.

text:
    Richard C. LINDSEY, Appellant, v. Billy Ray SAVAGE, Appellee.
    No. 76-1242.
    District Court of Appeal of Florida, Fourth District.
    Sept. 27, 1977.
    Rehearing Denied Nov. 2, 1977.
    James F. Littman, Stuart, and Charles H. Damsel, Jr., of Jones, Paine & Foster, West Palm Beach, for appellant.
    Wallace B. McCall of Johnson, Ackerman & Bakst, West Palm Beach, for appellee.
   DOWNEY, Judge.

Appellant suffered an adverse judgment in a suit against him for malicious prosecution. He now contends the trial court erred in failing to direct a verdict for appellant because the plaintiff failed to prove two essential elements of malicious prosecution, the absence of probable cause and malice.

We have examined the briefs and record in this case in the light of appellant’s contentions and find them to be without merit. As to both issues we conclude that a jury question existed. Thus, denial of a motion for directed verdict was proper.

Accordingly, the judgment appealed from is affirmed.

ALDERMAN, C. J., and PARHAM, HARRY C., Associate Judge, concur.


author: PER CURIAM. ANSTEAD, Judge,

text:
    Andrew S. BIRDSALL, Appellant, v. STATE of Florida, Appellee.
    No. 76-2102.
    District Court of Appeal of Florida, Fourth District.
    Sept. 27, 1977.
    Rehearing Denied Nov. 1, 1977.
    Stuart A. Markus of Markus, Winter & Spitale, P.A., Miami, for appellant.

      Robert L. Shevin, Atty. Gen., Tallahassee, and Robert L. Bogen, Asst. Atty. Gen., West Palm Beach, for appellee.
   PER CURIAM.

AFFIRMED.

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

ANSTEAD, J., dissents, with opinion.

ANSTEAD, Judge,

dissenting:

The appellant, Andrew S. Birdsall, seeks to overturn his conviction and sentence and an opportunity to withdraw the plea of guilty upon which the conviction and sentence were based. On appeal he claims his plea of guilty was predicated upon an implied promise of leniency by the trial judge who accepted his plea, while his sentence to five years imprisonment was imposed by another judge.

In his brief counsel for the appellant has referred to negotiations between the court, the prosecution and the defendant which are not of record and cannot be considered by this court. A portion of the brief record we do have indicates the following exchange took place at the time the plea was entered:

THE COURT: Let’s see the Information, Mrs. Clerk — Miss Clerk, it is.
Are you ready, counselor?
MR. MARKUS: Yes, sir.
Your Honor, if it please the Court, I’m Stuart Markus. I represent Andrew Robert Birdsall, and we would like to change our plea as to Count Two of the Information filed.
THE COURT: All right. What plea is it you want entered, counselor?
MR. MARKUS: We’d enter a plea of guilty at this time.
THE COURT: All right. Mr. Birdsall, you heard what your counselor said. Come up here where I can talk at you. And you know that you were present when we had conversation in Court. You know that when you plead guilty, why, all that remains is that paying, which may be by probation or by prison term. You understand that?
MR. BIRDSALL: Yes, sir; I do.
THE COURT: Now, is there anything that’s been told to you that would lead you to believe that the Court would put you on probation?
MR. Birdsall: Uhm—
THE COURT: I tell you that I will study the pre-sentence report thoroughly, and that I usually, but not always, follow the recommendations of the probation officers and the officers involved
MR. BIRDSALL: Yes, sir.
THE COURT: —but I don’t want you to feel that anything’s been told to you that would keep the Court from fixing the penalty within the limits prescribed by law, which the Court, in its judicial decision, feels that’s necessary. I want you to fully understand that.
MR. BIRDSALL: Yes, sir.
MR. MARKUS: I told you you could go to prison, didn’t I?
MR. BIRDSALL: Yes, sir.
THE COURT: Now, has anyone forced you to plead guilty?
MR. BIRDSALL: No, sir.
THE COURT: Any promise or reward, other than what has been said in this courtroom to get you to plead guilty?
MR. BIRDSALL: No, sir.
THE COURT: Has — you fully understand the nature and the penalty of pleading guilty?
MR. BIRDSALL: Yes, sir; I do.
THE COURT: Now, you are entitled to a trial by jury, which means that a jury of six people would be summonsed, I take it, be sworn, try the case and listen to the testimony and make up their mind as to your guilt or innocence but, if you plead guilty, you waive that. You fully understand that?
MR. BIRDSALL: Yes, sir; I do.
THE COURT: I don’t want to leave anything out here because I want you to fully understand the consequence of pleading guilty.
MR. BIRDSALL: Yes, sir; I do.
THE COURT: You know you are entitled to face your accusers face-to-face—
MR. BIRDSALL: Yes, sir.
THE COURT: —but when you plead guilty, the State doesn’t have to prove anything.
MR. BIRDSALL: Yes, sir.
THE COURT: That’s the end. You fully understand that?
MR. BIRDSALL: Yes, sir; I do.
THE COURT: You are not laboring under any disability at this time, are you?
MR. BIRDSALL: No, sir; I’m not.
THE COURT: And you fully realize and understand what’s going on?
MR. BIRDSALL: Yes, sir; I do.
THE COURT: Is this of your own free will and accord?
MR. BIRDSALL: Yes, sir; it is.
THE COURT: I think that he fully understands. I’ll accept his plea of guilty. I’ll order a pre-sentence investigation and set a time sometime during the latter part of July. He’ll be notified.

The State does not dispute that there was a plea bargain including provisions that the State would drop two out of three charges pending against the appellant; that the State would recommend probation conditioned on six months jail time; and that the appellant would plead guilty to one charge, possession of marijuana in excess of five grams. Additionally, however, the appellant claims he entered his plea with the reasonable expectation that the same judge who accepted his plea would impose sentence and that the sentence would follow the recommendations of the state officials involved. This the State disputes and correctly points out that the record does not reflect any agreement to that effect.

Sentence was imposed by a different judge, at which time counsel for the appellant expressed some surprise:

MR. MARKUS: Your Honor, I would at this time, under 3.231, Rules of Civil (sic) Procedure, I would believe that Judge Rose had heard this case originally, heard testimony from the police officers and had heard — heard mitigating circumstances and all things concerned.
MR. MARKUS: This is the reason that I had suggested that under the Rule that Judge Rose — I didn’t know that you had been familiar with it, but that he would sentence, since he had heard all of these recommendations.

In addition to the recommendations of the State, the chief investigating police officer and the probation officer who did the pre-sentence report recommended probation. Thereafter the trial court announced it was not following any of the recommendations made and imposed a prison sentence of five years with the last two to be suspended and the appellant placed on probation.

Appellant’s reliance on Fla.R.Crim.P. 3.231 is misplaced as such rule, relating to the disability or death of a judge before whom a trial has commenced, is not applicable to this situation. There is no reason why one trial judge may not accept a plea and another judge pass sentence provided the provisions of Fla.R.Crim.P. 3.700(c) are complied with. Rule 3.700(c) provides that the sentencing judge be fully informed of the facts “including any plea discussions, concerning the plea and the offense.” The sentencing judge here actually had a transcript of the plea proceedings conducted before the prior judge as well as the recommendations set out above.

We are not faced in this case with a specific agreement by the trial court as to the sentence to be imposed. And there is no doubt that the appellant was advised by the court before his guilty plea was accepted:

. I don’t want you to feel that anything’s been told to you that would keep the Court from fixing the penalty within the limits prescribed by law, which the Court, in its judicial decision, feels that’s necessary.

And yet there are matters in the record, or which by their absence from the record, raise questions about the appellant’s understanding of the consequences of his plea of guilty.

The appellant relies on the case of Brown v. State, 245 So.2d 41 (Fla.1971) which held that a defendant should be allowed to withdraw a guilty plea which resulted from an honest misunderstanding and mutual mistake as to the expected sentence as a result of discussions between the court, the State and the defendant. In Brown the trial judge advised defendant’s counsel that he usually granted probation in certain cases, and the defendant’s attorney then advised his client to plead guilty on the basis that his case was similar to those cases to which the court had referred. It turned out that the trial judge did not consider Brown’s case to be one that usually merited probation. On appeal the Florida Supreme Court ruled that the circumstances indicated an honest misunderstanding of the trial court’s comments and authorized the defendant to withdraw his guilty plea. Other cases have authorized a change of plea if the defendant can show a reasonable basis in the record for an expectation of leniency upon a plea of guilty.

The question presented then is whether there is any reasonable basis in the record to support the appellant’s contention that his plea was the result of an honest misunderstanding and mutual mistake as to the expected sentence. As in Brown the appellant here had no prior criminal record. The investigating officer recommended probation. The State recommended probation conditioned upon a six month jail sentence. The presentence investigation recommended probation. The trial court told the appellant that he usually followed the recommendations of the probation officers and the officers involved. No unusual circumstances developed that would put the appellant on notice that the court would not do what it usually did. I believe these events formed the basis for an honest misunderstanding and mutual mistake as to the consequences of the appellant’s plea when in fact the judge who usually followed the recommendations of the probation authorities was not the same judge who sentenced the appellant. To the contrary, the sentencing judge announced he did not usually follow such recommendations and would not in this case. Under those circumstances, the appellant was entitled to an opportunity to withdraw his plea of guilty and proceed to trial.

      . Under Fla.R.Crim.P. 3.172(c)(vii), effective July 1, 1977, the complete terms of any plea agreement will be discussed by the trial judge with the defendant personally prior to the acceptance of a plea of guilty.

      . Whether this was a repetition of a remark previously made during unrecorded plea bargaining or a gratuitous remark of the trial judge cannot be exactly determined by the record.

      . For example, the emphasized portions of the judge’s remarks indicate the appellant was present “when we had conversation in Court” and of course the State concedes there was plea bargaining not of record. Hopefully, Rule 3.172(c)(vii) will eliminate any “misunderstandings” in the future.

      . Surace v. State, 351 So.2d 702 (Fla.1977); Costello v. State, 260 So.2d 198 (Fla.1972).


text:
    STATE of Florida, Appellant, v. Robert Louis KOVACH, Appellee.
    No. 76-1723.
    District Court of Appeal of Florida, Second District.
    Oct. 5, 1977.
    As Modified On Denial of Rehearing Nov. 2, 1977.

      Robert L. Shevin, Atty. Gen., Tallahassee, and Robert J. Landry, Asst. Atty. Gen., Tampa, for appellant.
    Jack 0. Johnson, Public Defender, and Robert H. Grizzard, II, Asst. Public Defender, Bartow, for appellee.
   PER CURIAM.

This is an appeal by the state from an order of discharge under the Speedy Trial Rule.

It is difficult to state the pertinent dates and facts with particularity because no witnesses testified at the hearing on the motion for discharge. The judge made his ruling based on proffers of what the witnesses would testify made by both attorneys. Suffice it to say, the record clearly reflects that the judge entered the order of discharge because he was of the view that after the appellee was located in Ohio the speedy trial time ran out when the state failed to follow through with extradition.

If the appellee failed to voluntarily waive extradition, this case would be governed by Fla.R.Crim.P. 3.191(e) which provides that an accused is not entitled to compute for speedy trial purposes the time which elapses when he voluntarily removes himself from the jurisdiction of the court or otherwise acts to make himself unavailable for trial. Cf. O’Bryan v. State, 326 So.2d 83 (Fla. 1st DCA 1976).

Since the record leaves so much doubt as to what really occurred, the order of discharge is hereby set aside, and the case is remanded with directions to have a further hearing at which time testimony can be taken toward developing whether the ap-pellee was be entitled to discharge for failure to provide him with a speedy trial.

McNULTY, Acting C. J., and GRIMES and OTT, JJ., concur.


author: HOBSON, Judge. BOARDMAN, Chief Judge, SCHEB, Judge,

text:
    SARASOTA COUNTY, Florida, etc., Petitioner, v. DEPARTMENT OF ADMINISTRATION, etc., Respondent.
    No. 77-159.
    District Court of Appeal of Florida, Second District.
    Oct. 5, 1977.
    Rehearing Denied Nov. 3, 1977.

      Richard L. Smith of Nelson, Hesse, Cyril & Weber, Sarasota, for petitioner, Sarasota County.
    David V. Kerns, Gen. Counsel, Dept, of Administration, and Louis F. Hubener, III, Division Atty., Division of State Planning, Tallahassee, for respondent.
    Judith Smith Kavanaugh, Bradenton, Member, Manatee Chapter Isaak Walton League of America, as amicus curiae.
   HOBSON, Judge.

In this petition for writ of certiorari the petitioner, Sarasota County, seeks judicial review of a declaratory statement issued by respondent, Department of Administration. In essence, petitioner sought, albeit unsuccessfully, to invoke the requirements of Chapter 380, otherwise known as the Florida Environmental Land and Water Management Act of 1972, so as to have a proposed crude oil splitter in neighboring Manatee County be considered a development of regional impact. Since we find petitioner lacks the requisite standing before this court, we decline to address this issue. The petition is denied.

On November 23, 1976, Sarasota County (County) filed a petition for declaratory statement with the Department of Administration (Department) pursuant to Section 120.565, Florida Statutes (Supp.1976), concerning the applicability of Section 380.-06(1), Florida Statutes (1975) and Section 380.11, Florida Statutes (1975), with regard to the construction of a crude oil splitter refining facility (the Project) in Manatee County by Manatee Energy Company, a subsidiary of Belcher Oil Company.

Thereafter the Department issued a declaratory statement dated December 27, 1976, stating that the definition of a development of regional impact (DRI) in Section 380.06(1), Florida Statutes (1975) is limited by and applicable only to those projects described in Fla.Admin.Code Rule 22F-2, pursuant to Section 380.06(2), Florida Statutes (Supp.1976). No hearing was requested or held on the petition prior to the rendition of the declaratory statement.

Following the negative response to its query regarding the DRI statute’s application to the Project, the County sought review of the Department’s declaratory statement in this court pursuant to Section 120.-68, Florida Statutes (Supp.1976). Some time after the County’s petition was filed in this court we granted the Manatee Chapter of the Isaac Walton League of America permission to appear in this cause as Ami-cus Curiae. The League’s position is identical to that of the County.

The threshold issue in this case, as it is in any cause before this and other judicial forums, is whether the County has standing to invoke the procedures of Chapter 380. The answer to this difficult question necessarily involves an analysis of the specific provisions of the Administrative Procedure Act involved sub judice, in conjunction with their relationship to the DRI process incorporated in the Environmental Land and Water Management Act, Chapter 380. The Department contends the County had no right to obtain an administrative declaratory statement pursuant to Section 120.565 since the County’s petition only presented an abstract question for determination. More specifically the Department asserts the County had no substantial interest which would be affected by such a ruling. In response to this contention we would note that any answer to this question would be moot at this juncture because the declaratory statement was issued and the record shows that no hearing or preliminary determination of interest was made prior to its issuance.

Although the Department correctly points out that there is no indication in the statute or in any judicial decision spelling out the extent to which an agency may decline to honor such requests, we submit that a preliminary test of substantial interest is proper at the initial stage when the request is made. In support of this view, Fla.Admin.Code Rule 28-4.05, promulgated by the Administration Commission, provides:

A declaratory statement is a means for determining the rights of parties when a controversy, or when doubt concerning the applicability of any statutory provision, rule or order has arisen before any wrong has actually been committed. The potential impact upon petitioner^ interests must be alleged in order for petitioner to show the existence of a controversy or doubt.

Thus an open-ended mechanism exists for examining the allegations of a petition for a declaratory statement, pursuant to Section 120.565, to ascertain the interest of a party. In fact an agency may hold a hearing to dispose of a petition submitted under this statute. Fla.Admin.Code Rule 28.4-07(1).

Assuming, as we have, the County’s right to the declaratory statement, the second facet of this procedural analysis concerns the interpretation of Section 120.68, Florida Statutes (Supp.1976) and the DRI provisions of Chapter 380 as they both relate to standing for purposes of judicial review. The last sentence of section 120.565, dealing with declaratory statements, states, “Agency disposition of petitions shall be final agency action.” In conjunction with this provision Section 120.68 provides in part, “A party who is adversely affected by final agency action is entitled to judicial review. . ” Simply stated, the County maintains that the negative response to the petition for a declaratory statement is the “adverse effect” sufficient to clothe this court with jurisdiction in this cause. The Department, in response, asserts the County has failed to demonstrate a sufficient interest for purposes of review. In addition, the Department asserts there is no justiciable controversy.

While the County has taken the position that it was adversely affected by issuance of the declaratory statement, we are not persuaded that the petitioner falls within the ambit of those entities given the authority to initiate the DRI process under Chapter 380. At the outset we reject any contention that mere issuance of an unfavorable declaratory statement confers standing on a petitioner for purposes of the Administrative Procedure Act. This is particularly true in situations where the posture of the case presents the standing issue for the first time in the reviewing court. Since it is axiomatic that jurisdiction may be questioned at any stage, we must turn to the applicable provisions of Chapter 380 to evaluate the County’s position.

Section 380.06 sets forth a comprehensive administrative scheme designed to insure that those entities affected by local, regional or even state-wide development will have some input into the planning, implementation and future of said developments. At the heart of this planning statute is the developer. Thus, if the type of development proposed is already classified as one of regional impact, as defined in Section 380.06(1) and (2), the developer must comply with the procedures delineated in Section 380.06(5)-(ll)- This process necessarily involves the interplay of (1) those local governments having zoning authority over the proposed development area; (2) regional planning agencies; and (3) the state planning agency. In fact, this statute contemplates the joinder of more than one local government where the proposed DRI falls within the jurisdiction of more than one local government. Section 380.06(7)(f).

The remaining question presented by this case is: What entities are involved in the DRI process if the proposed development is not one of those which is presumed to be a DRI under Fla.Admin.Code Rule 22F-2.01-12? Although the statute does not directly answer this question, some guidance is offered by subsections (3) and (4)(a) of Section 380.06. Subsection (3) provides:

Each regional planning agency may recommend to the state land planning agency from time to time types of development for designation as developments of regional impact under subsection (2). Each regional planning agency shall solicit from the local governments within its jurisdiction suggestions regarding developments to be recommended.

In a different manner subsection 4(a) explains the position of the developer who is uncertain about the status of his intended enterprise and whether it is a DRI or not. Subsection 4(a) states:

If any developer is in doubt whether his proposed development would be a development of regional impact, or whether his rights have vested pursuant to subsection (12), he may request a determination from the state land planning agency.
Within sixty days of the receipt of such request, the state land planning agency shall issue a binding letter of interpretation with respect to the proposed development. Binding letters of interpretation issued by the state land planning agency shall bind all state, regional, and local agencies, as well as the developer.

Given the latter statutory directives, we are unable to see how, if at all, the County falls within any of the categories denominated as regional planning agency, appropriate local government or state planning agency. Moreover, the County certainly cannot be considered a developer. Consequently, the County’s position that the DRI process applies to the Project is, in essence, an attempt to force the Department to make an ad hoc determination of the status of the Project where it has no authority to initiate such process. Furthermore, the record is devoid of any evidence showing that any of these proper entities have sought to invoke the DRI process.

At this stage we are unable to see how granting certiorari and deciding the case on the merits will be conclusive of all the rights involved in the proposed Project. This conclusion is particularly required where the Project is not presumed to be a DRI and, even more importantly, where the party seeking to initiate the DRI process is not one of those authorities designated in the statute to commence such proceedings. We note that this is not the first occasion in which Sarasota County has sought review of developmental questions under Chapter 380. See Sarasota County v. Beker Phosphate Corp., 322 So.2d 655 (Fla. 1st DCA 1975); Sarasota County v. General Development Corp., 325 So.2d 45 (Fla. 2d DCA 1976). Cf. Pinellas County v. Lake Padgett Pines, 333 So.2d 472 (Fla. 2d DCA 1976).

In summary, we are not blind to the laudable purposes of the County in seeking to provide a better quality of life for its citizenry. Yet we submit the County’s position in this cause would be better served if the County petitioned those entities charged by statute with responsibility in the DRI process. For example, input offered to the appropriate local government, the regional planning agency and/or the developer might bear directly on the interests sought to be protected.

Accordingly, other points having been duly considered and found without merit, the petition for writ of certiorari is denied.

BOARDMAN, C. J., concurs specially.

SCHEB, J., dissents.

HOBSON, J., concurs with BOARDMAN, J.

BOARDMAN, Chief Judge,

concurring specially.

Although I concur in the result reached by Judge Hobson I hasten to add that I do not construe the majority opinion as ultimately precluding relief to Sarasota County. The avenue the county has chosen to pursue is at best an abrogation of the scheme established by the legislature in Section 380.06, Florida Statutes, while there were and are two viable alternatives available to petitioner.

First, Sarasota County may proceed through its regional planning agency to effect the same result it sought to achieve by acting on its own behalf. See Section 380.-06(3), Florida Statutes. Second, petitioner may initiate legal proceedings under the Florida Environmental Protection Act of 1971 to require Manatee County to comply with the DRI process. See Section 403.412, Florida Statutes.

SCHEB, Judge,

dissenting.

Sarasota County here seeks a review of a declaratory statement issued by the respondent Department of Administration (DOA) holding the “guidelines and standards” administratively adopted pursuant to Section 380.06(2), Florida Statutes (1975), limit the application of the general definition of a development of regional impact (DRI) contained in Section 380.06(1). Translated into meaningful terms, DOA’s holding means that it has concluded that the state land planning agency (a subdivision of DOA) has no authority to determine if the proposed crude oil splitter to be built in Manatee County is a development of regional impact, since this type of development is not listed as a presumed DRI under the administrative regulations.

The majority does not reach the merits of this controversy, holding instead that Sarasota County is not entitled to judicial review of the declaratory statement. This court, I note, has previously denied the respondent’s motion to dismiss on jurisdictional grounds. I would hold the declaratory statement issued by the respondent constituted final agency action under Section 120.565, Florida Statutes (Supp.1976). This court has the duty to review such actions under Section 120.68, Florida Statutes (Supp.1976).

In my opinion the declaratory statement issued by the respondent is incorrect as a matter of law. Department of Administration said that Section 380.06(2), Florida Statutes (1975), requires the administration commission (governor and cabinet) to adopt specific guidelines and standards to be used by the state land planning agency to determine if a development should be determined to be of regional impact; that these guidelines and standards have been codified in Florida Administrative Code 22F-2; and that under these guidelines the proposed oil splitter is not a development presumed to be of regional impact. The crux of the Department’s declaratory statement seems to be that if a development is not presumed to be a DRI under 22F-2, the state land planning agency has no authority to find it to be one. In other words, the presumptions itemized in 22F-2 are all-inclusive with no discretion left in the state land planning agency to consider whether an unlisted project is or is not a DRI. With this I cannot agree.

Section 380.06(1), Florida Statutes (1975), defines a DRI to be, “[A]ny development which, because of its character, magnitude, or location, would have a substantial effect upon the health, safety, or welfare of citizens of more than one county.” Section 380.06(2) then gives the administration commission the right to formulate the standards to guide the state land planning agency in deciding what is a DRI. I do not find any language in Chapter 380 to indicate that the administration commission should be the final arbiter of what is or is not a DRI. The state land planning agency is the receptacle of this delegated legislative authority as is shown by its role in receiving recommendations from regional planning agencies and in issuing letters of interpretation to developers. See Sections 380.06(3) and (4)(a).

Chapter 380, known as the Florida Environmental Land & Water Management Act of 1972, is landmark legislation implementing Article II, Section 7, Florida Constitution (1968), which places great stress on well planned development and the quality of life of all the residents of this state. Section 380.06(1) quoted above is a legislative directive designed to implement these intentions. I think DOA, by its failure to recognize that it is authorized to consider the merits of whether a proposed development is one of regional impact, has unduly restricted that legislative intent.

Accordingly, I would grant the county’s petition for review and remand this cause to DOA with directions to reconsider and reformulate its declaratory statement consistent with the legislative intent of Section 380.06(1), rather than by limiting the statute’s applicability to the presumed DRI’s listed in Florida Administrative Code 22F-2.

      . § 380.06(1), Fla.Stat. (1975) defines a development of regional impact as:
      . [A]ny development which, because of its character, magnitude, or location, would have a substantial effect upon the health, safety, or welfare of citizens of more than one county.
      § 380.06(2), Fla.Stat. (Supp.1976), goes further to grant authority to the Administration Commission to adopt by rule guidelines and standards for use in determining whether particular developments shall be presumed to be of regional impact. These criteria are subject to legislative review and the state land planning agency is authorized to recommend specific guidelines and standards for adoption by the Commission.
      Within this statutory framework the Department of Administration, Administration Commission has promulgated guidelines identifying twelve areas presumed to be of regional impact. Fla.Admin.Code Rules 22F-2.01-12.

      . The Manatee Chapter of the Isaac Walton League of America filed a petition for declaratory statement on October 27, 1976 concerning the applicability of Section 380 to the same proposed Project. On December 28, 1976, one day after the County received its statement, the Department issued a declaratory statement which was essentially the same as that issued in response to the County’s petition. In its Motion to Appear as Amicus, the League asserts it was aware of the County’s intention to seek review of this question, but chose to fore-go an appearance as a party because of the potential expense involved.

      .§ 120.565, Fla.Stat. (Supp.1976) was, prior to 1975, incorporated as part of § 120.56, Fla.Stat. (1975). In 1975 the legislature amended § 120.-56 and deleted that portion of the statute pertaining to the issuance of declaratory statements. That deleted subsection became § 120.-565. However, prior to the amendment creating the separate section dealing with declaratory statements, the Administration Commission enacted Fla.Admin.Code Rule 28-4.05, which is denominated “Purpose and Use of Declaratory Statement.” That rule is, then, now applicable to § 120.565.
      Petitioner County mistakes the intended purpose of Rule 28-4.05. This administrative rule does not confer procedural or substantive rights on a party seeking a declaratory statement. Instead, the rule explains the meaning and utilization of this administrative device.

      .It is clear that petition for a declaratory statement under § 120.565 may take on a more formal nature if a hearing is held as authorized by Fla.Admin.Code Rule 28-4.07. The latter rule requires that if a hearing is held it shall be conducted according to the provisions of § 120.57(2), Fla.Stat. (Supp.1976), or as otherwise agreed upon by the agency and the parties. Suffice it to say that any informal proceedings conducted pursuant to § 120.57(2) will be much more formal than the proceedings which occurred herein. Thus, the Department’s contention that the County lacked standing to seek a declaratory statement is without merit since the Department essentially waived any preliminary check of the County’s interest by issuing the statement. The Department in the future might well be advised to hold hearings to dispose of petitions for declaratory statements where it appears that the petitioner might lack the requisite standing. Of course, the rule authorizes other, less formal methods that the parties might utilize which would have the same effect of testing the interest factor at an early stage in the proceedings.

      . Id.

      . See note 1, supra.

      . Where a developer chooses to proceed with a project, which the Administration Commission has designated as a DRI, and where such project falls within the zoning jurisdiction of a local government, the developer must make application to the local government stating his intention to undertake a development of regional impact. § 380.06(6), Fla.Stat. (Supp. 1976). Following said application the local government must give notice and hold a hearing. § 380.06(7). However, prior to such notice of public hearing being issued, the appropriate regional planning agency, if any, must submit a written notice that the application contains sufficient information for it to discharge its duties. Should the information be insufficient, the applicant is permitted to amend upon request by the agency. § 380.-06(7)(a), (b).
      Thereafter notice of public hearing is forwarded to the state planning agency, applicable regional planning agency and to other persons designated by the state planning agency to receive such notice. § 380.06(7)(d). Following receipt of such notice of public hearing by the regional planning agency, if one exists, the latter prepares a report and recommendation on the impact of such a project. § 380.06(8). Thereafter the local government issues a development order.
      For more extensive treatment of the Florida Environmental Land and Water Management Act see Comment, Environmental Land Use Control: Common Law and Statutory Approaches, 28 U.Miami L.Rev. 135 (1973).

      . Neither of these cases passed upon the precise procedural issue presented in this case. However, in both cases Sarasota County was found to be without standing to appeal developmental orders of local governments approving applications for developments of regional impact pursuant to § 380.07(2). See note 7, supra.


author: SCHEB, Acting Chief Judge.

text:
    Stephen JACKSON, Jr., Appellant, v. STATE of Florida, Appellee.
    No. 76-1892.
    District Court of Appeal of Florida, Second District.
    Oct. 7, 1977.
    As Modified On Denial of Rehearing Nov. 4, 1977.

      Jack 0. Johnson, Public Defender, Bar-tow, and Douglas A. Wallace, Asst. Public Defender, Bradenton, for appellant.
    Robert L. Shevin, Atty. Gen., Tallahassee, and Mary Jo M. Gallay, Asst. Atty. Gen., Tampa, for appellee.
   SCHEB, Acting Chief Judge.

The trial court, over appellant’s objection, instructed the jury that the state was not required to establish the specific date of the crime even though appellant pled an alibi defense. Appellant claims that in so doing the trial court committed reversible error. We agree and award appellant a new trial.

Appellant, Stephen Jackson, Jr., was charged by information with having committed robbery on October 25, 1975. During discovery procedures appellant provided the state with a notice of intent to claim alibi. See Fla.R.Crim.P. 3.200. However, appellant did not request that the state furnish him a statement of particulars as to the specific date of the offense. At trial the state’s proof showed that the robbery had occurred on October 25, 1975, and no evidence was introduced to show that the robbery took place on any other date. Appellant put on his alibi defense keyed to the October 25 date. Three witnesses testified in support of his statement as to his whereabouts at the time of the robbery. After both sides rested, the court instructed the jury, over defense objection, that it was not necessary for the state to prove that the robbery occurred on October 25. Appellant was convicted and the trial court sentenced him to ninety-nine years in prison.

Appellant contends the trial court committed reversible error in giving the previously mentioned instruction over his objection. We agree and reverse.

The First District Court of Appeal recently considered this same point in Mitchell v. State, 333 So.2d 89 (Fla.1st DCA 1976). After reviewing the relevant facts, which are parallel in all material aspects to those in the present case, Judge Smith said:

It follows that, in the circumstances of this ease, the trial court erred in charging the jury in effect that it might convict appellant if it found that she committed the offense charged on some date other than December 14,1974 [the date charged in the information]. That the evidence which was adduced gave the jury a hard choice was no justification for inviting the jury to indulge in speculation which disregarded all the evidence. 333 So.2d at 91.

We think that Judge Smith’s conclusion is sound. If a jury is allowed to speculate, an alibi defense will seldom be of any real value to a defendant.

We recognize that our holding is an exception to the well established rule of law upon which the judge’s instruction was based, that one date may be alleged in an information and another proved at trial if the proof shows the crime was committed before the information was filed and within the period of the statute of limitations. State v. Clein, 93 So.2d 876 (Fla.1957); Fla. Standard Jury Instruction 2.09. However, where an accused’s defense is keyed to the particular time when the offense was allegedly committed, the general rule is not applicable. Mitchell v. State, supra.

In view of our decision, we need not consider the other points which appellant raises.

Appellant’s conviction and sentence are vacated and the case is remanded to the trial court for a new trial.

OTT and RYDER, JJ., concur.


author: PER CURIAM. MILLER, ROBERT P., Associate Judge,

text:
    Steven Harris ALMOND, Appellant, v. STATE of Florida, Appellee.
    No. 75-1604.
    District Court of Appeal of Florida, Fourth District.
    Oct. 11, 1977.
    Richard L. Jorandby, Public Defender, Frank B. Kessler and Jerry L. Schwarz, Asst. Public Defenders, West Palm Beach, for appellant.
    Robert L. Shevin, Atty. Gen., Tallahassee, and Harry M. Hipler, Asst. Atty. Gen., West Palm Beach, for appellee.
   PER CURIAM.

Appellant appeals from a Judgment of guilty and Order of Probation after a trial by jury in which Appellant was convicted of aggravated assault.

The trial court ordered Appellant to serve seven years of probation and included in the terms thereof the following conditions:

“(9) You will serve fifty-one weeks in Orange County Jail with credit for time served.
(10)You will reside elsewhere other than Central Florida.
(II) You will not violate any State or Federal laws, County or Municipal Ordinances.
(12)You will not associate with any organized or unorganized motorcycle groups.”

The terms of probation exceeds the maximum allowed by two years. See Holmes v. State, 343 So.2d 632 (Fla. 4th DCA 1977), and Heatherly v. State, 343 So.2d 54 (Fla. 4th DCA 1977).

Additionally, Appellant contends and we agree that condition (10) is improper. The requirement that Appellant reside elsewhere than Central Florida is not sufficiently definite to advise Appellant of the limits of the restriction; also it is not clear what relationship this restriction has to Appellant’s probation. The trial court in the exercise of its discretion may as a condition of probation say where a probationer may reside. The condition, however, must be sufficiently definite to advise the probationer of the limits of the restriction, and the condition must also bear some reasonable relationship to the purposes of probation. Condition (10) does not meet these criteria and is hereby stricken from the Order of Probation. Upon remand, the trial court may amend the Order of Probation consistent with this opinion. In all other respects the Judgment is affirmed.

AFFIRMED as modified and remanded.

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

MILLER, ROBERT P., Associate Judge, concurs in part and dissents in part, with opinion.

MILLER, ROBERT P., Associate Judge,

concurring in part and dissenting in part, with opinion.

I disagree with that portion of this opinion which infers that the conditions as set forth in the Order of Probation must affirmatively show some relationship to the Appellant’s probation and I presume rehabilitation. I believe the better rule is that previously stated by this court in Heatherly v. State, 343 So.2d 54 (Fla. 4th DCA 1977), wherein Judge Dauksch pronounces the rule to be that where the record is silent as to the trial court’s reason for particular conditions this court cannot find that the court abused its discretion in that regard.

The record here is certainly silent as to why the court imposed such a geographical restriction and it should be presumed that the trial court had an appropriate reason for such restriction. Certainly the trial court had authority to restrict the Appellant’s movements entirely by placing him in confinement. It is only by the grace of the trial court that he is allowed any movement whatsoever and therefore he should not be heard to complain of such restriction.


text:
    Earl RUCKER, Appellant, v. STATE of Florida, Appellee.
    No. 75-2274.
    District Court of Appeal of Florida, Fourth District.
    Oct. 11, 1977.
    Richard L. Jorandby, Public Defender, and Frank B. Kessler and Tatjana Ostapoff, Asst. Public Defenders, West Palm Beach, for appellant.
    Robert L. Shevin, Atty. Gen., Tallahassee, and Harry M. Hipler, Asst. Atty. Gen., West Palm Beach, for appellee.
   PER CURIAM.

The conviction and sentence relating to aggravated assault are herewith affirmed.

The conviction and sentence relating to carrying a pistol without a permit is hereby reversed upon the authority of Jenkins v. State of Florida, opinion issued August 2, 1977 (4th DCA), 349 So.2d 1191, wherein the Court stated:

Jenkins was also charged with carrying a concealed weapon. He claims error by the trial court in instructing the jury that manual possession of a pistol without a license was a lesser included offense. We agree. Manual possession of a firearm without a license is not a necessarily included lesser offense of carrying a concealed weapon.

ANSTEAD and LETTS, JJ., concur.

CROSS, J., concurs only in conclusion.


author: LETTS, Judge.

text:
    C. Howard ZIMMERMAN, Appellant, v. CIVIL SERVICE BOARD OF the CITY OF BOCA RATON, Florida, Appellee.
    No. 76-1524.
    District Court of Appeal of Florida, Fourth District.
    Oct. 11, 1977.
    Roger H. Harper, Boca Raton, for appellant.
    M. A. Galbraith, Jr., City Atty., and Cor-mac C. Conahan, Senior Asst. City Atty., Boca Raton, for appellee.
   LETTS, Judge.

This appeal is taken from an order quashing appellant’s petition for certiorari for failure to join the City of Boca Raton as an indispensable party. We affirm.

Appellant’s employment as a plumbing inspector for the City of Boca Raton was terminated for cause by the City Manager. An appeal was taken to the Civil Service Board of Boca Raton for a review of the dismissal pursuant to the City’s Personnel Rules and Regulations which permit both employer and employee to present evidence and argue their positions. Upon a finding that the charges against appellant were deserved, the Board concluded that his termination was warranted, and affirmed the action of the City Manager. Appellant then sought review of this ruling by a petition for certiorari to the Circuit Court, naming the Civil Service Board as respondent. The City made a special appearance requesting that the petition be quashed, arguing that the City should have been joined as an indispensable party. The trial judge agreed and rendered an order quashing appellant’s petition for certiorari. This appeal followed.

The judge’s ruling relied upon the decision of Headley v. Lasseter, 147 So.2d 154 (Fla. 3rd DCA 1962). In this case the County Board of Rules and Appeals had reversed a decision by the City of Miami to deny a permit to install sewers. Review was sought in circuit court by way of certiorari without joining the city. Finding the city to be materially interested in the subject matter, the Third District reversed saying in part:

In a proceeding to review a decision or order of an administrative agency, the question of who may or must be joined as parties is, in the absence of statutory provision as to parties, governed by the rules applicable to parties in civil actions generally.
Thus, when a proceeding is filed in court to review the decision of an administrative board which ruled on the propriety of an administrative decision by a city, the city or its official who was involved is a necessary if not indispensable party to such court proceeding.

A contrary conclusion was reached in Board of Public Instruction of Duval County v. Sack, 212 So.2d 819 (Fla. 1st DCA 1968) upon facts similar to those under review. In this latter case, the court distinguished Headley on the basis that the civil service board conducted a trial de novo rather than functioning as an appellate body. It appears to us however that the boards in each case acted in their quasi-judicial capacity to determine the rights of the city and its adversary, whom we feel are the proper parties on appeal.

The Personnel Rules and Regulations of the City of Boca Raton provide for an appeal of the actions of the Civil Service Board by way of certiorari to the Circuit Court. As both employer and employee may seek this review, it stands to reason that each of these opponents is essential to a determination of the merits of the case. Moreover, the City of Boca Raton, rather than the Civil Service Board, is responsible for supplying a remedy in the event an employee is found to have been unjustly dismissed from his job. Since a judgment in favor of the appellant would clearly affect the City, it has a material interest in the outcome of the suit, and thus, is an indispensable party to it. This Court has acknowledged the necessity of joining the city in Buchanan v. City of Winter Park, 226 So.2d 860 (Fla. 4th DCA 1969), where an appeal of the civil service board’s decision to terminate the employment of a police chief was dismissed by the circuit court for failure to join the city.

Since a judgment in this action could not be properly rendered in the absence of the City, we find it to be an indispensable party which must be joined. Accordingly the order appealed is affirmed.

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

      . We note our decision in Weber v. Zoning Board of Appeals of City of West Palm Beach, 206 So.2d 258 (Fla. 4th DCA 1968), where we ruled that the city was not an indispensable party; however, in that case the required parties were governed by an applicable statute. No such statute was pertinent in Headley, nor in the case now before us.


author: CROSS, Judge.

text:
    Joseph Bernard McCABE, Jr., a minor, by and through his mother and next friend, Jayne Flanigan, and Jayne Flanigan, Individually, Appellants, v. WALT DISNEY WORLD CO., a Delaware Corporation authorized to do business in the State of Florida, Wed Enterprises, Inc., a Foreign Corporation, and Mapo Inc., a Foreign Corporation, Appellees.
    No. 76-1996.
    District Court of Appeal of Florida, Fourth District.
    Oct. 11, 1977.
    Perry S. Itkin, of Gibbs & Itkin, Fort Lauderdale, for appellants.
    John L. O’Donnell, Jr., of Helliwell, Mel-rose & DeWolf, Orlando, for appellees.
   CROSS, Judge.

Appellants, Joseph McCabe, Jr., and Jayne Flanigan, his mother, appeal entry of summary final judgment entered in favor of appellee, Walt Disney World, in an action to recover damages for personal injuries. We reverse.

Appellant, Joseph (Jobie) McCabe, Jr., a minor, by and through his mother, Jayne Flanigan, instituted suit to recover damages for personal injuries received when Jobie fell over a low railing while engaged in “horseplay” with several friends while inside an attraction at Walt Disney World known as the “Haunted Mansion.” The record discloses that Jobie, then aged 15, and several friends, all of whom were participants in an all-day excursion to Disney World sponsored by Plantation High School, voluntarily left the small cars used to transport passengers through the attraction despite a recorded warning not to do so, and were engaged in boisterous conduct along the route traveled by these small cars. In an area known as the “seance circle,” Jobie went over a low wall which separated the staged scene from the route traveled by the cars, fell fifteen feet to a concrete floor below and was severely injured. After lengthy pleadings and exhaustive discovery, the trial court, upon motion by the appellee, entered summary judgment on the ground that Jobie was the sole proximate cause of the injuries received. This appeal followed.

Summary judgment may properly be granted in negligence cases only where the moving party has successfully met his burden of proving the absence of a genuine issue of material fact. Holl v. Talcott, 191 So.2d 40 (Fla.1966); Grall v. Risden, 167 So.2d 610 (Fla. 2d DCA 1964), cert. denied 174 So.2d 736 (Fla.1965). However, the existence of negligence or contributory negligence is ordinarily a question for the jury, and courts should be cautious in granting summary judgment in negligence cases. Holl v. Talcott, supra. This is true even where there is no conflict in the evidence, provided that inferences reasonably deducible therefrom cast doubt upon material issues. Booth v. Mary Carter Paint Company, 182 So.2d 292 (Fla. 2d DCA 1966). Whenever questions of negligence or contributory negligence are close, any doubt should always be resolved in favor of a jury trial. Beikirch v. City of Jacksonville Beach, 159 So.2d 898 (Fla. 1st DCA 1964).

The record discloses that several material issues of fact exist in the case sub judice which should be decided by a jury after a full hearing on the merits. Of particular importance is the question of whether the appellant, McCabe, held the status of a “public invitee” or that of a “trespasser” at the moment of injury because the determination of the status defines the scope of the duty owed by the appellee. Such questions are particularly appropriate for a determination by the finder of fact. Heath v. First Baptist Church, 341 So.2d 265 (Fla. 2d DCA 1977). Moreover, the question of whether the alleged defective excursion car was the proximate cause of the injury sustained is inappropriate for a determination by summary judgment, since questions of proximate cause must generally be resolved by the trier of fact from all the facts and circumstances in a particular case. Leib v. City of Tampa, 326 So.2d 52 (Fla. 2d DCA 1976).

Material questions as to the propriety of the design of the “seance circle” setting in the Haunted Mansion attraction and the adequacy of the lighting have been placed into issue by the allegation of the existence of a hazardous condition which also precludes entry of summary judgment. Fletcher v. Petman Enterprises, Inc., 324 So.2d 135 (Fla. 3d DCA 1976). Further, the question of whether the alleged hazardous condition was so concealed or hidden as reasonably to require a warning or other protective measure, and whether that duty to warn has been fulfilled are proper questions for a jury determination. LeMay v. U. S. H. Properties, Inc., 338 So.2d 1143 (Fla. 2d DCA 1976); Heath v. First Baptist Church, supra.

Finally, the questions of whether the appellant himself was contributorily negligent or whether he had assumed the risk of injury through his conduct must be decided by a jury. Rea v. Leadership Housing, Inc., 312 So.2d 818 (Fla. 4th DCA 1975). Such issues, now categorized under the rubric of comparative negligence, are seldom appropriate for determination through the vehicle of summary judgment.

In short, the questions of the negligence of the appellee and the comparative negligence of the appellant are material issues of fact which exist so as to preclude entry of summary judgment. Goldberg v. McCabe, 313 So.2d 47 (Fla. 3d DCA 1975).

Accordingly, the summary final judgment is reversed and the cause remanded for further proceedings consistent with the views herein expressed.

Reversed and remanded.

ALDERMAN, C. J., and DAUKSCH, J., concur.


author: BOARDMAN, Chief Judge.

text:
    Rolfe D. DUGGAR, Appellant, v. QUALITY DEVELOPMENT CORPORATION of Florida, Quality Management Corp., Hilborn, Werner, Carter & Associates, Inc., Richard Joseph Werner, and Marilyn Pines Unit I Association, and Marilyn Pines Unit II, Appellees.
    No. 77-884.
    District Court of Appeal of Florida, Second District.
    Oct. 12, 1977.
    Rehearing Denied Nov. 7, 1977.
    James W. Hagan of Fowler, White, Gil-len, Boggs, Villareal & Banker, Clearwater, for appellant.
    John S. Wagstaff of Phillips, McFarland, Gould, Wilhelm & Wagstaff, Clearwater, for appellees Quality Development Corp. of Florida and Quality Management Corp.
    James D. Henry, St. Petersburg, for ap-pellees Hilborn, Werner, Carter & Associates, Inc. and Richard Joseph Werner.
   BOARDMAN, Chief Judge.

This is an interlocutory appeal of an order of the trial court denying a motion to dismiss for lack of prosecution filed by appellant, Rolfe D. Duggar (Duggar), under Fla.R.Civ.P. 1.420(e). We reverse.

In December 1974 suit was brought against appellee, Quality Development Corporation of Florida (Quality), by a condominium association, and as to those parties the action was settled by stipulation in December 1975. On October 29, 1975 Quality filed a third-party complaint against appellant and on October 30 a third-party complaint against appellee, Hilborn, Werner, Carter & Associates, Inc. (Hilborn). Various other counterclaims and cross-claims were filed by these parties. They included a cross-claim by Hilborn against Duggar and a counterclaim by Duggar against Hil-born. The last record activity among these parties was on March 10,1976 when Quality filed a response to Duggar’s affirmative defenses. More than one year later, on March 15, 1977, Duggar filed a motion to dismiss. Quality, within a short time thereafter, filed a response to the motion and a motion to set the case for trial. Hilborn failed to file either a response or a motion in opposition to appellant’s motion.

Appellees argue that allegations set out in Quality’s response to the motion to dismiss, that is that the attorney for Quality attempted to contact counsel for appellant by mail and telephone from time to time during the one-year period to ascertain from him the time necessary to set for trial, are sufficient to sustain the trial court’s ruling. Additionally, it is asserted that Quality’s attorney had prepared a motion to set the case for trial and left the time and date blank, although he did not mail or serve it upon appellant or file it in court until the motion to dismiss was filed. We think it pertinent to mention that when the motion to set the case for trial was filed the time estimated for trial was one-half a day.

Appellant contends the trial court erred and urges reversal of the court’s ruling on two alternative grounds. First, Fla. R.Civ.P. 1.420(e) as amended by the supreme court effective January 1, 1977 mandates dismissal because there was no record activity within a one-year period. We do not agree. The amended rule which requires that the activity appear on the face of the record to prevent dismissal is not applicable to cases involving nonrecord activity prior to the effective date of that amendment. We decided this issue contrary to the position of appellant in the recent case of Sainer Constructors, Inc. v. Pasco County School Board, 349 So.2d 1212 (Fla.2d DCA 1977). Second, the reasons stated in Quality’s response did not constitute good cause to deny the motion to dismiss for lack of prosecution under former Rule 1.420(e). We agree. The rule had previously allowed nonrecord activity to be considered as good cause to avoid dismissal for lack of prosecution. Musselman Steel Fabricators, Inc. v. Radziwon, 263 So.2d 221 (Fla.1972). The standard used by the courts to determine whether nonrecord activity was sufficient to avoid dismissal has been stated as follows:

[A]ny activity of record or non-record [sic] which results in contact by one party with the opposing party or the court and which moves the cause of action towards its ultimate resolution is sufficient prosecution under the hereinabove cited rule [Fla.R.Civ.P. 1.420(e)].

Rapport v. Weisberg, 316 So.2d 73, 74 (Fla.3d DCA 1975).

In our judgment the duty rested upon appellees to prosecute their respective actions and not upon appellant as is contended by appellees. Appellees’ nonrecord activity falls short of the standard. It cannot be said to hasten the action to judgment and does not demonstrate good cause to toll the running of the time period.

We reverse with directions to the trial court to vacate the order denying the motion to dismiss and to enter an order dismissing these actions.

REVERSED with directions.

McNULTY and GRIMES, JJ., concur.


text:
    HAFT-GAINES COMPANY, a Delaware Corporation, Relator, v. The Honorable Thomas J. REDDICK, Judge of the Seventeenth Judicial Circuit, in and for Broward County, Florida, Respondent.
    No. 77-844.
    District Court of Appeal of Florida, Fourth District.
    Oct. 12, 1977.
    Frank E. Maloney, Jr. of Fleming, O’Bryan & Fleming, Fort Lauderdale, for relator.
    Robert L. Shevin, Atty. Gen., Tallahassee, and Harry M. Hipler, Asst. Atty. Gen., West Palm Beach, for respondent.
    Howard I. Weiss of Levine & Fieldstone, P. A., Miami, for Steve Weil.
   LETTS, Judge.

The Writ of Prohibition is Granted.

The facts are that the plaintiff and the defendant entered into an out of court settlement of this cause confirmed by letter. In accordance with this settlement, attorneys for both sides executed and entered into a “Stipulation for Dismissal” filed with the court which read in toto:

COME NOW the parties Steve Weil and Haft-Gaines Company by and through their undersigned attorneys and stipulate that this action may be dismissed in accordance with Florida Rule of Civil Procedure 1.420 with prejudice to both parties.

The disputed letter of settlement is not, and never was, a part of the record below, nor will we permit it to become so on appeal. Pursuant to the stipulation set forth above, the court then entered a final order on the basis thereof which simply said, “This action is dismissed . . . with prejudice to both parties.”

No further pleadings were attempted until twenty-four days later when the plaintiff below filed a motion in the same cause to “compel return of property.” As grounds, this motion set forth that the defendant below had failed to give over certain property pursuant to the out of court letter of settlement already referred to. Surprisingly, the prayer, at the conclusion of this motion, sought compensatory and punitive damages, costs and attorneys fees.

Predictably, a motion to dismiss was filed in opposition and the trial court correctly granted the motion to dismiss noting that it was without jurisdiction but that its ruling was without prejudice to the plaintiff below “to file a new law suit.”

Four months after the original order of dismissal pursuant to the written stipulations therefor, the plaintiff below next filed in the same cause a “motion to enforce settlement agreement” which once again sought, in the prayer, compensatory and punitive damages, fees and costs. There then ensued a hearing relative to a further motion to dismiss whereat the court concluded that it had all along retained equity jurisdiction. An order was then entered setting the cause for jury trial.

We hold that the trial court’s jurisdiction terminated after the final order of dismissal, pursuant to the joint stipulation, both as to subject matter and person. Shelby Mutual Insurance Company v. Pearson, 236 So.2d 1 (Fla.1970). See also Cannon Sand and Rock Company v. Maule Industries, 203 So.2d 636 (Fla. 3rd DCA 1967).

The Writ of Prohibition is hereby granted. The trial court has no jurisdiction and the scheduled jury trial may not take place.

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

      . The terms and contents of this letter are disputed.