author: OVERTON, Justice. BOYD, Justice

text:
    STATE of Florida, Petitioner, v. Johnnie Lee JONES, Respondent.
    No. 45802.
    Supreme Court of Florida.
    Jan. 14, 1976.
    Rehearing Denied March 9, 1976.

      Robert L. Shevin, Atty. Gen., and Linda Collins Hertz, Asst. Atty. Gen., for petitioner.
    Phillip A. Hubbart, Public Defender, and Kathleen Gallagher, Asst. Public Defender, for respondent.
   OVERTON, Justice.

This is a petition for writ of certiorari to review the decision of the Third District Court of Appeal reported at 296 So.2d 519 (Fla.App.3d 1974), upon its certified question. The question involves probation which is preceded by a specified period of jail time and requires a construction of Sections 948.01(4), 948.03, and 948.06, Florida Statutes (1973). This is a subject upon which there have been varying constructions and interpretations by the four District Courts of Appeal. We have jurisdiction.

The certified question from the Third District is as follows:

“WHERE ONE WHO COULD BE SENTENCED TO IMPRISONMENT IN THE STATE PENITENTIARY FOR A PERIOD OF YEARS IS SENTENCED TO IMPRISONMENT IN THE COUNTY JAIL (FOR A PERIOD AS PERMITTED BY § 922.051 FLA.STAT., F.S.A.), WITH DIRECTION THAT HE BE PLACED ON PROBATION UPON COMPLETION OF A SPECIFIED PERIOD OF SUCH SENTENCE WITH THE REMAINDER OF THE JAIL SENTENCE STAYED AND WITHHELD (AS PERMITTED BY § 948.01(4), FLA.STAT., F.S.A.), UPON REVOCATION OF THE PROBATION CAN THE COURT IMPOSE, ON THE ALREADY SENTENCED DEFENDANT, A NEW SENTENCE OF IMPRISONMENT IN THE STATE PENITENTIARY FOR A PERIOD OF YEARS, SUCH AS THE COURT COULD HAVE ORIGINALLY IMPOSED (AS PERMITTED BY § 948.06' FLA.STAT., F.S.A. WHEN SENTENCE HAS BEEN WITHHELD AND PROBATION HAS BEEN GRANTED UNDER § 948.01 (l)-(3), FLA.STAT., F. S.A.), OR IS THE TIME TO BE SERVED, FOLLOWING REVOCATION OF PROBATION WHICH HAS BEEN GRANTED PURSUANT TO § 948.01(4), FLA.STAT., F.S.A., LIMITED TO THE UNSERVED PORTION OF THE PREVIOUSLY IMPOSED JAIL SENTENCE WHICH WAS STAYED AND WITHHELD UPON PLACING THE DEFENDANT ON PROBATION?”

For the reasons stated herein, we answ.er the question by holding that a defendant placed on probation pursuant to Section 948.01(4), Florida Statutes (1973), who subsequently violates that probation may be sentenced to imprisonment by the trial judge for the same period of years as the court could have originally imposed in accordance with Section 948.06, Florida Statutes (1973), without the necessity of establishing a term of sentence and withholding a part of it at the initial sentencing proceedings.

In the instant case the respondent-defendant pleaded guilty to (1) possession of heroin, (2) uttering a worthless check, arid (3) uttering a forged instrument. The trial judge imposed separate sentences for each of these offenses, prescribing confinement in the Dade County jail for a period of one year to be followed by probation for five years, the sentences to be served concurrently. The trial court reconsidered the sentences in each case and reduced the period to be spent in the Dade County jail to the 85 days then served, retaining the five-year probation period. ' The defendant-respondent violated the probation within the designated five-year period by committing other felonies. His probation was revoked and the trial judge imposed three concurrent sentences of two years each in the state penitentiary with credit for 135 days served in the Dade County jail. The Third District Court affirmed the judgment but reversed the trial court’s sentence, holding that “the revocation of the probation operates to subject the defendant to the penalty of serving no more than the portion of the jail sentence which was withheld incident to placing him on probation.” The District Court decision restricted the maximum punishment for violating the probation to the previously imposed concurrent one-year county jail sentences which were withheld, less credit for the time served. This holding requires the trial judge to impose the total sentence and then withhold a portion of the sentence for use in the event violation of probation occurs. The decision also assumed the reconsideration did not disturb the balance of the one-year sentence but merely withheld its imposition. We do not agree with the District Court’s construction of the statute or the result reached in the instant case.

The sole purpose of Chapter 948 is to authorize probation. The manner of imprisonment is considered elsewhere and its consideration in Chapter 948 is only as an incident to probation or violation thereof. The chapter must be read as a whole. Section 948.01, Florida Statutes (1973), principally in issue in these proceedings, reads in its entirety as follows:

“948.01. When courts may place defendant on probation.—
“(1) Any court of the state having original jurisdiction of criminal actions, where the defendant in a criminal case has been found guilty by the verdict of a jury or has entered a plea of guilty or a plea of nolo contendere or has been found guilty by the court trying the case without a jury, except for an offense punishable by death, may at a time to be determined by the court, either with or without an adjudication of the guilt of the defendant, hear and determine the question of the probation of such defendant.
“(2) Prior to such hearing the court may refer the case to the parole and probation commission for investigation and recommendation. The court, upon such reference, shall direct the commission to make an investigation and report in writing at a specified time to the court upon the circumstances of the offense, the criminal record, the social history, and the present condition of defendant together with its recommendation.
“(3) If it appears to the court upon a hearing of the matter that the defendant is not likely again to engage in a criminal course of conduct and that the ends of justice and the welfare of society do not require that the defendant shall presently suffer the penalty imposed by law, the court, in its discretion, may either adjudge the defendant to be guilty or stay and withhold the adjudication of guilt and in either case stay and withhold the imposition of sentence upon such defendant, and shall place him upon probation under the supervision and control of the commission for the duration of such probation. And the said commission shall thereupon and thereafter, during the continuance of such probation, have the supervision and control of the defendant.
“(4) Whenever punishment by imprisonment in the county, jail is prescribed, the court, in its discretion, may at the time of sentencing direct the defendant to be placed on probation upon completion of any specified period of such sentence. In such case, the court shall stay and withhold the imposition of the remainder of sentence imposed upon the defendant, and direct that the defendant be placed upon probation after serving such period as may be imposed by the court.
“(5) In no case shall the imposition of sentence be suspended and the defendant thereupon placed on probation unless such defendant be placed under the custody of said commission.”

The Legislature in 1974 attempted to correct the confusion arising from varying District Court decisions by amending Section 948.01(4), Florida Statutes (1974), effective July 1, 1974, as follows:

“Whenever punishment by imprisonment for a misdemeanor or a felony, except for a capital felony, is prescribed, the court, in its discretion, may, at the time of sentencing, direct the defendant to be placed on probation upon completion of any specified period of such sentence. In such case, the court shall stay and withhold the imposition of the remainder of sentence imposed upon the defendant, and direct that the defendant be placed upon probation after serving such period as may be imposed by the court.”
[emphasis added]

Irrespective of this amendment, the issue raised by the prior law is still one of public interest because of defendants now on probation pursuant to its prior provisions.

Section 948.03, Florida Statutes (1973), prescribes the terms and conditions of probation and specifically authorizes the trial court to add such other conditions as it considers proper. It further grants to the trial judge the authority to rescind or modify at any time the terms and conditions of probation imposed by the court upon the probationer.

Section 948.06, Florida Statutes (1973), allows the trial judge upon revocation of probation to impose any sentence which might have been originally imposed before placing the defendant on probation.

There are three primary sentencing alternatives available to the trial judge. In order of their severity, they are as follows :

(1) Imprisonment. Sentencing of a defendant to the county jail or state prison.
(2) Probation and Imprisonment. A prescribed period of probation which is preceded by a period of incarceration, known generally as the split sentence alternative.
(3) Probation. A prescribed period of probation.

The use of probation which is preceded by a specific period of incarceration as an alternative means of punishment has been imposed by various methods in the trial courts. The District Courts have both approved and restricted these orders to the extent that it is difficult for the trial court to determine the proper procedure to use.

The Third District, in Williams v. State, 280 So.2d 518 (Fla.App.3d 1973), had before it a defendant who had pleaded guilty to a felony and had been sentenced to one year in the county jail followed by two years probation. During the probationary period, subsequent to serving the one year in the county jail, the defendant violated the conditions of probation. The trial judge revoked the probation and sentenced the defendant to two years in the state prison. The Third District held that there was no power in the trial judge to impose probation upon this defendant subsequent to the completion of serving his term in the county jail, and found the probationary portion of the sentence a nullity. It construed Section 948.01(4), Florida Statutes, to mean that the trial court must withhold a portion of the county jail,sentence in order to impose any punishment for a violation of the probation. This Williams decision was followed by the Third District in Reynolds v. State, 293 So.2d 743 (Fla. App.3d 1974); Bryant v. State, 290 So.2d 122 (Fla.App.3d 1974); Kohn v. State, 289 So.2d 48 (Fla.App.3d 1974); Harris v. State, 288 So.2d 552 (Fla.App.3d 1974); McNeill v. State, 287 So.2d 745 (Fla.App. 3d 1974); Cleveland v. State, 287 So.2d 347 (Fla.App.3d 1973); Metchik v. State, 286 So.2d 269 (Fla.App.3d 1973); Hutchins v. State, 286 So.2d 244 (Fla. App.3d 1973), and Mylks v. State, 285 So. 2d 434 (Fla.App.3d 1973). See also Green v. State, 310 So.2d 373 (Fla.App.3d 1975), and Durham v. State, 304 So.2d 146 (Fla.App.3d 1974).

In Hutchins v. State, supra, the Third District further interpreted Section 948.-01(4), Florida Statutes (1973), by saying:

“. . . Thus, where a court in sentencing a defendant to imprisonment for a designated period in the county jail provides that after serving a stated portion thereof the defendant should be on probation for some period, the penalty for a violation of probation would call for return of the defendant to the county jail for the unserved balance of the jail sentence, or such part thereof as the court should determine. . . . ” 286 So.2d at 246-47.

The other District Courts of Appeal have not been as restrictive and have attempted to distinguish that Williams decision.

The Second District, in Washington v. State, 284 So.2d 236 (Fla.App.2d 1973), had before it a defendant who had pleaded guilty to a felony and was placed on four years probation, conditioned on his spending one year in jail. The defendant left the jail without permission, which resulted in the trial court’s revoking his probation and sentencing him to three years in the state prison pursuant to Section 948.06, Florida Statutes. The Second District affirmed. Previously, in State v. Williams, 237 So.2d 69 (Fla.App.2d 1970), the Second District had held that Section 948.03, Florida Statutes, was sufficiently broad to allow a condition which required the defendant to spend sixty days in jail each year of a twenty-year probation. That court cited as additional authority United States ex rel. Spellman v. Murphy, 217 F. 2d 247 (7th Cir. 1954); State v. Bassett, 86 Idaho 277, 385 P.2d 246 (1963); State v. Brown, 253 N.C. 195, 116 S.E.2d 349 (1960); Judicial Review of Probation Conditions, 67 Colum.L.Rev. 181, 184 (1967). In Hults v. State, 307 So.2d 489 (Fla.App.2d 1975), the Second District held illegal and void a sentence of 18 months imprisonment followed by three years probation because the trial judge failed to stay any portion of the sentence at the initial sentencing proceeding. A similar result was reached.in Woodruff v. State, 309 So.2d 55 (Fla.App.2d 1975), and Harrell v. State, 308 So.2d 51 (Fla.App.2d 1975). In Ivey v. State, 308 So.2d 565 (Fla.App.2d 1975), the Second District, citing Section 948.06(2), Florida Statutes, held the time spent in jail pursuant to a split sentence alternative was a valid condition of probation and the defendant was not entitled to credit for the jail time served upon revocation of that probation.

The Fourth District, in Lewis v. State, 298 So.2d 540 (Fla.App.4th 1974), had before it a defendant who had pleaded guilty to a felony for which he could be sentenced to five years in the state prison. The trial judge withheld adjudication of guilt and placed the defendant on five years probation subject to the condition that the defendant “spend ten months in the Orange County Correction Facility, with credit for time served . . . .” The defendant escaped while serving the ten-month sentence. The trial judge revoked the probation and sentenced the defendant to five years in the state prison. The Fourth District affirmed and distinguished the Third District’s decision in Williams v. State, supra, by the fact that there had been an adjudication of guilt by the trial judge in the Williams case, which was not the situation with the defendant Lewis. We do not agree that this is a controlling distinguishing characteristic. The Fourth District in Lewis adopted with approval the Second District’s decision in State v. Williams, supra, upholding jail time as a condition of probation, citing as additional authority Ex parte Hazlett, 137 Cal.App. 734, 31 P.2d 448 (1934); People v. Fisher, 237 Mich. 504, 212 N.W. 70 (1927); 24 C.J.S. Criminal Law § 1618(8) (1961), and a subsequent decision by the Second District in Sanders v. State, 268 So.2d 553 (Fla.App.2d 1972). The Fourth District, in Lennard v. State, 308 So.2d 579 (Fla.App.4th 1975), and Brown v. State, 302 So.2d 430 (Fla.App.4th 1974), held the sentencing court, in imposing the split sentence probation alternative, must stay and withhold the imposition of part of the sentence.

The First District, in Waters v. State, 290 So.2d 503 (Fla.App.1st 1974), had before it a defendant convicted of aggravated assault, for which he could be sentenced to five years in the state penitentiary. The trial judge sentenced the defendant to be imprisoned in the county jail for five years but provided that upon completion of three months of the sentence, imposition of the remainder would be withheld and the defendant placed on probation for a period of four years and nine months subject to the conditions of a separate probation order. The conditions in the probation order included three months jail time before commencing the probation period. The defendant did not violate his probation but contended the. sentence imposed was in excess of the maximum limits because of the provision of Section 922.051, Florida Statutes, which prescribed that a court might impose a sentence of imprisonment in the county jail if the total of the prisoner’s cumulative sentences is not more than one year. The defendant claimed the sentence was void to the extent that it exceeded one year in the county jail. The District Court rejected this contention. It distinguished the Third District’s decision in Williams v. State, supra, on the grounds that the Williams trial court did not withhold imposition of any portion of the sentence during the term of probation. We disagree that this is a controlling distinguishing characteristic. The proper result was achieved, but the imposition of the total sentence prior to the commencement of probation and imposition of a sentence of more than one year in the county jail were improper. The five-year sentence was authorized but only after revocation of probation, and it must be in the state prison.

These cases illustrate the several ways trial judges have attempted to impose split sentence probation and the various interpretations by the respective District Courts of Appeal.

To clarify and establish this area of the law, we hold trial courts have both general and specific authority for the imposition of the split sentence probation alternative.

We hold that the trial courts of this state have the general authority to require incarceration as a condition of probation for felony and misdemeanor offenses pursuant to the general condition provisions of Section 948.03, Florida Statutes, and the reasoning and authorities contained in Washington v. State, supra, and Lewis v. State, supra.

We hold that prior to July 1, 1974, the provisions of Section 948.01(4), Florida Statutes (1973), granted specific authority to the trial judge to prescribe a period in the county jail followed by probation for those offenses punishable only by imprisonment in the county jail (misdemeanor offenses). It is our opinion that the term “whenever punishment by imprisonment in the county jail is prescribed” is descriptive of the offenses to which the subparagraph was applicable. The new amendment to Section 948.01(4), effective July 1, 1974, expands the trial judge’s specific statutory authority to include felonies as well as misdemeanors in the use of the split sentence probation alternative.

We reject the District Court’s interpretation of Section 948.01(4) which requires the trial judge at the initial sentencing proceeding to impose a total sentence immediately followed by the withholding of a part thereof for use in the event probation is violated. This interpretation is inconsistent with the procedure for straight probation as authorized by Section 948.-01(3), Florida Statutes, and in conflict with Section 948.06, Florida Statutes. The latter authorizes the trial judge, upon a finding that probation has been violated, to impose any sentence he might have originally imposed. Section 948.01(3), Florida Statutes, pertaining to placing a defendant on straight probation, requires the court to stay and withhold the imposition of sentence. The only difference in the wording of Section 948.01(4), Florida Statutes, is the addition of the qualifying word “remainder” in the phrase “withhold the imposition of the remainder of sentence.” We read this provision of the statute to mean that the time spent in jail must be within any maximum jail sentence which could be imposed. We find no legislative intent to require an initial imposition of the total sentence.

We further hold that a defendant must be given credit for the time spent in jail pursuant to the split sentence probation order whether it is imposed pursuant to Section 948.01(4), Florida Statutes, or as a condition of probation under Section 948.-03, Florida Statutes. We construe Section 948.06(2), Florida Statutes, to apply only to time spent under probation supervision without incarceration. To hold otherwise would result in a possible constitutional violation under the standards set down in North Carolina v. Pearce, 395 U.S. 711, 89 S.Ct. 2072, 23 L.Ed.2d 656 (1969).

In conclusion, we hold (1) the trial court may place a defendant on probation and include, as a condition, incarceration for a specific period of time within the maximum sentence allowed; (2) the trial court may revoke, revise, or modify for cause the probation and incarceration provision at any time during the period that said order is in force and impose any sentence which might have been originally imposed; (3) upon revocation, a defendant must be given credit for any period of time spent in jail pursuant to a split sentence probation order.

The decision of the Third District Court of Appeal is quashed, and this cause is remanded with directions to reinstate the sentences imposed by the trial court.

It is so ordered.

ADKINS, C. J., ROBERTS and ENGLAND, JJ., and LEE, Circuit Judge, concur.

BOYD, J., dissents with an opinion.

BOYD, Justice

(dissenting).

I respectfully dissent to the majority opinion and would adopt the decision of the Third District Court of Appeal reported at 296 So.2d 519 which is being quashed herein.

To reach the result attained by the majority it is necessary to give Section 948.-01, Florida Statutes, 1973, a strained interpretation never contemplated by the Legislature in its consideration of the matter of probation. Section 948.01(1), (2) and (3), Florida Statutes, 1973, regulates procedures for release of defendants on probation prior to being sentenced. Subsection (5) simply requires probationers to be under supervision of the Parole and Probation Commission. The only relevant portion of the statute dealing with the situation being reviewed here is subsection (4) which provides as follows:

“(4) Whenever punishment by imprisonment in the county jail is prescribed, the court, in its discretion, may at the time of sentencing direct the defendant to be placed on probation upon completion of any specified period of such sentence. In such case, the court shall stay and withhold the imposition of the remainder of sentence imposed upon the defendant, and direct that the defendant be placed upon probation after serving such period as may be imposed by the court.” (emphasis supplied)

A careful reading of subsection (4) reveals it provides simply that, whenever a prisoner is sentenced to a term in county jail, the court may require service of a portion of the specified sentence and release the prisoner on probation.

In this case, the prisoner was given three concurrent one-year sentences in the Dade County jail to be followed by five years on probation. Later the court reconsidered and reduced the sentences to the eighty-five days already served in jail, retaining the five year probation period.

Upon breach of probation within the specified time period, the court revoked his probation and imposed three two-year concurrent sentences of confinement in the state penitentiary. In my view, the court exceeded its statutory authority by imposing a new and different sentence from the one-year jail sentence previously imposed. I believe the District Court of Appeal, Third District, correctly held that the trial court exceeded its statutory authority by imposing two-year penitentiary sentences on defendant after previously fixing definite one-year sentences in county jail for the very same offenses.

The language of Section 948.01(4), Florida Statutes. 1973, specifies “the remainder of the sentence imposed.” It makes no reference to new sentences to be imposed nor to the extension or enlargement of the sentence imposed. In this case, the only “remainder of the sentence imposed” is the one-year county jail sentence, less the eighty-five days already served.

Perhaps true justice could be attained by permitting a court to call back and resen-tence an erring probationer released from county jail during his specified term of incarceration, but I find no Florida statute which permits such action as is approved by the majority opinion. The deprivation of personal liberty by courts for violating criminal statutes must never exceed the punishment authorized by the Legislature. If more harsh sentences are needed the Legislature, not the courts, should change the law.

Here, the courts admittedly have disagreed upon the construction of Section 948.01, Florida Statutes, 1973. This statute well may be ambiguous and need legislative clarification. This premise is supported by the Third District Court of Appeal’s referral of the question to this Court. It is a well recognized principle of law that ambiguities in criminal statutes are to be resolved in favor of accused persons.

The trial court could have sentenced Respondent to county jail or the penitentiary but not to both. It chose the county jail; it now cannot use hindsight to correct the judgment by substituting a sentence in state prison simply because it appears that imprisonment in the county jail was too lenient a form of punishment. If the offenses committed during release from county jail authorized punishment, the court might have timely punished Respondent for them upon separate and independent convictions. Regardless of the trial court’s high motives to deter crimes, I respectfully submit that the methods used were never approved by the Florida Statutes and should not be approved by this Court. Respondent should serve one year in jail less eighty-five days and no more.

I do not find that the 1974 amendment to Section 948.01(4), Florida Statutes, alters my view.

I therefore respectfully dissent.

      . Art. V, § 3(b) (1), (3), Fla.Const.

      . See Chapters 921 and 922, Florida Statutes.

      . Our interpretation herein is consistent with the provisions of RCrP 3.790.

      . The order is governed by Sections 948.03 and 948.06, Florida Statutes (1973), and the trial judge is not restricted by the sixty-day provision of RCrP 3.800.

      . Negron v. State, 306 So.2d 104 (Fla.1975) ; Snowden v. Brown, 60 Fla. 212, 53 So. 548 (1940).


source: Caselaw Access Project

author: OVERTON, Justice.

license: Public Domain

text:
    STATE of Florida, Petitioner, v. Lee BAKER, Respondent.
    No. 46701.
    Supreme Court of Florida.
    Jan. 14, 1976.
    Robert L. Shevin, Atty. Gen., and Lance R. Stelzer, Asst. Atty. Gen., for petitioner.
    Phillip A. Hubbart, Public Defender, and Steven M. Rappaport, Asst. Public Defender, for respondent.
   OVERTON, Justice.

This cause is before us on a petition for writ of certiorari to review a decision of the Third District Court of Appeal, Case No. 74-688, Opinion filed December . 17, 1974. That decision held illegal a probation order which placed defendant on probation for five years conditioned upon his serving eleven months in a training and treatment center and attending regular vocational guidance and educational tutoring classes.

The District Court decision is in conflict with our recent decision in State v. Jones, 327 So.2d 18 (Fla.1975).

The petition for writ of certiorari is granted. We dispense with oral argument and the filing of briefs on the merits. The decision of the District Court is quashed, and this cause is remanded with directions to reinstate the split sentence probation imposed by the trial judge in accordance with our opinion in State v. Jones, supra.

It is so ordered.

ADKINS, C. J., and ROBERTS and ENGLAND, JJ., concur.

BOYD, J., dissents.

      . We have jurisdiction. Art. V, § 3(b)(3), Fla.Const.


text:
    STATE of Florida, Petitioner, v. Guillermo LOPEZ, Respondent.
    No. 46831.
    Supreme Court of Florida.
    Jan. 14, 1976.
    Robert L. Shevin, Atty. Gen., and Joel D. Rosenblatt, Asst. Atty. Gen., for petitioner.
    Phillip A. Hubbart, Public Defender, and Kurt Marmar, Asst. Public Defender, for respondent.
   OVERTON, Justice.

This is a petition for writ of certiorari to review a decision of the Third District Court of Appeal reported at 305 So.2d 268 (Fla.App.3d 1974). The District Court found improper a two-year probation order which included a condition that the defendant be incarcerated in the Dade County jail for a period of eleven months.

The decision of the District Court is in conflict with our recent decision in State v. Jones, 327 So.2d 18 (Fla. 1975).

The petition for certiorari is granted. We dispense with oral argument and the filing of briefs on the merits. The decision of the District Court is quashed, and this cause is remanded with directions to reinstate the split sentence probation order in accordance with our opinion in State v. Jones, supra.

It is so ordered.

ADKINS, C. J., and ROBERTS and ENGLAND, JJ., concur.

BOYD, J., dissents.

      . We have jurisdiction. Art. V, § 3(b)(3), Fla.Const.


text:
    STATE of Florida, Petitioner, v. Tommy CUMMINGS, Respondent.
    No. 47197.
    Supreme Court of Florida.
    Jan. 14, 1976.
    Robert L. Shevin, Atty. Gen., and Joel D. Rosenblatt and Elliot H. Scherker, Asst. Attys. Gen., for petitioner.
    Phillip A. Hubbart, Public Defender, and Steven Rappaport, Asst. Public Defender, for respondent.
   OVERTON, Justice.

This is a petition for writ of certiorari to review a decision of the Third District Court of Appeal reported at 310 So.2d 374 (Fla.App.3d 1975). The District Court’s decision held illegal a probation order which placed the defendant on probation for three years conditioned upon the defendant serving one year in the county jail. The decision is in conflict with our recent decision in State v. Jones, 327 So.2d 18 (Fla. 1975).

The petition for certiorari is granted. We dispense with oral argument and the filing of briefs on the merits. The decision of the District Court is quashed, and the cause is remanded with directions to reinstate the split sentence probation order in accordance with our opinion in State v. Jones, supra.

It is so ordered.

ADKINS, C. J., and ROBERTS and ENGLAND, JJ., concur.

BOYD, J., dissents.

      . We have jurisdiction. Art. V, § 3(b)(3), Fla.Const.


text:
    STATE of Florida, Petitioner, v. Johnny Lee GREEN, Respondent.
    No. 47302.
    Supreme Court of Florida.
    Jan. 14, 1976.
    Robert L. Shevin, Atty. Gen., and Margarita Esquiroz, Asst. Atty. Gen., for petitioner.

      Phillip A. Hubbart, Public Defender, and Gerald D. Hubbart, Asst. Public Defender, for respondent.
   OVERTON, Justice.

This cause is before this Court on petition for writ of certiorari to review a decision of the Third District Court of Appeal reported at 310 So.2d 373 (Fla.App. 3d 1975). The Third District held illegal a one-year term in the county jail as a condition of a five-year probation for the felony offense of escape. The District Court decision .conflicts with our decision in State v. Jones, 327 So.2d 18 (Fla.1975).

The petition for certiorari is granted. We dispense with oral argument and the filing of briefs on the merits. The decision of the District Court is quashed, and this cause is remanded with directions to reinstate the split sentence probation imposed by the trial court in accordance with our opinion in State v. Jones, supra.

It is so ordered.

ADKINS, C. J., and ROBERTS and ENGLAND, JJ., concur.

BOYD, J., dissents.

      . We have jurisdiction. Art. V, § 3(b)(3), Fla.Const.


author: PER CURIAM.

text:
    THE FLORIDA BAR, Complainant, v. David M. PINCUS, Respondent.
    No. 47992.
    Supreme Court of Florida.
    Dec. 10, 1975.
    Rehearing Denied Feb. 16, 1976.
    Joseph Michael Fitzgerald, Miami, for complainant.
   PER CURIAM.

The referee, in a disciplinary action, found Mr. Pincus, a member of The Florida Bar, guilty of unethical conduct on three occasions, violating at various times Disciplinary Rules 6-101 (A) (1)—(3), 7-101 (A) and 9-102(B)(4). Specifically, the referee found that Mr. Pincus neglected the interests of certain clients seeking discharge in bankruptcy; that as a result the referee in bankruptcy entered an order to show cause why the clients should not be deemed to have waived discharge; that Mr. Pincus failed to appear at the hearing set in the order to show cause, or otherwise respond to the order; and that the bankruptcy referee in fact entered an order disallowing Mr. Pincus’ clients’ discharge in bankruptcy.

In a separate case, Mr. Pincus undertook to represent a defendant in a civil suit, the referee found, with the result that a default judgment was taken against Mr. Pincus’ client, on account of his attorney’s neglect. Finally, the referee found that the holder of a promissory note in default engaged Mr. Pincus to collect on the note; and when, after four years elapsed without Mr. Pincus’ filing suit, the holder of the note asked Mr. Pincus to return the note and other papers, Mr. Pincus refused to do so.

As disciplinary measures, the referee recommended “that the Respondent be suspended for a period of one year [during which] ... he shall prove his rehabilitation and ... be required to take a course in legal ethics . . .” and that costs be taxed against Mr. Pincus. Costs amount to $881.18. Pursuant to Rule 11.-09(3) (f), Art. XI, Integration Rule, no review having been sought of the referee’s report, the respondent is suspended from the practice of law, on the terms recommended by the referee, and costs of these proceedings are taxed against him.

It is so ordered.

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

BOYD, J., dissents.


author: McNULTY, Chief Judge.

text:
    John A. LOMBARDI and Lois Lombardi, Appellants, v. The FLAMING FOUNTAIN, INC., Appellee.
    No. 75-226.
    District Court of Appeal of Florida, Second District.
    Feb. 13, 1976.
    Charles R. Holley, Naples, for appellants.
    James A. Franklin, Jr., of Henderson, Franklin, Starnes & Holt, Fort Myers, for appellee.
   McNULTY, Chief Judge.

Appellants appeal from a directed verdict in favor of appellee in this slander action. The action arose out of an incident in appellee’s restaurant shortly after appellants and six companions had finished eating dinner therein. Allegedly, upon finding a salt shaker and cream pitcher missing, restaurant employees accused appellants and their companions of “thievery" or called them “thieves” in such loud voices as to be heard by other diners.

The two points argued before us relate to the requirement in an action for slander of “publication" of the slanderous epithet. At trial the court refused to allow the complainants to testify to the fact that each of them had been told by third persons that they, the third persons, had heard from still others that complainants had been accused of theft. The court ruled that such testimony was hearsay and could not be admitted. In a related ruling, the court also ruled that the essential element of “publication” could not be shown solely by means of circumstantial evidence. The directed verdict followed.

Concerning the hearsay evidence, we agree with the trial court that the excluded testimony was inadmissible. The classic example of inadmissible hearsay evidence, of course, is in-court evidence of a statement made by another out of court, when the statement is being offered as an assertion to show the truth of the matters asserted therein, and thus resting for its value upon the credibility of the out-of-court asserter. On the other hand, if the point in issue is whether a statement was in fact made it is proper for a third party to testify himself as to what he overheard since his testimony would tend to prove only that what he heard was indeed said and not that what was said was true.

But here, the complainants’ proffered testimony was not that they heard the statements but rather that other persons had told them they had heard the statements. Such would tend to prove that the statements were made all right, but the truth of whether it was in fact “published” to one other than the slandered party would depend upon the credibility of the out-of-court declarant. The testimony is therefore another example of clearly inadmissible hearsay.

Nevertheless, despite the proper exclusion of the aforesaid hearsay, the trial court improperly granted appellee’s motion for a directed verdict since there was sufficient circumstantial evidence upon which a jury could infer the required publication. We find no support for the court’s ruling that publication in a slander suit must be exclusively shown by direct evidence and not by circumstantial evidence. Florida courts have consistently held that circumstantial evidence is admissible generally in civil actions and, in fact, may often be more probative than direct evidence. Slander actions are no less amenable to that rule. We hold, therefore, that in a slander action it is not necessary to produce witnesses who heard the slanderous words spoken. The jury may well infer publication if it is shown that the words were uttered in a loud voice in the presence of others and under conditions and circumstances in which a loud voice would likely be heard.

Since the testimony before the jury in this case indicated that in addition to the plaintiffs and their party there were six or eight other diners present when the alleged slander occurred, that the tone of voices was loud enough to be heard 40 or 50 feet away and that a normal dining atmosphere prevailed, there was sufficient circumstantial evidence we think from which a jury may well have inferred “publication.” Accordingly, it was error to direct a verdict for the stated reason that there was no direct evidence of “publication.”

In view whereof, the judgment appealed from should be, and it is hereby reversed; and the cause is remanded for a new trial.

GRIMES and SCHEB, JJ, concur.

      . See Campbell v. Jacksonville Kennel Club (Fla.1953), 66 So.2d 495; Fiore v. Rogero (Fla.App. 2nd, 1962), 144 So.2d 99.

      . See McCormick, Evidence § 246 (2d Ed. 1972).

      . See Bonkowski v. Arlan’s Dept. Store (1970), 383 Mich. 90, 174 N.W.2d 765; Southwest Drug Stores of Mississippi, Inc. v. Garner (Miss.1967), 195 So.2d 837; Little Stores v. Isenberg (1943), 26 Tenn.App. 357, 172 S.W.2d 13; 50 Am.Jur.2d Libel and Slander § 446 (1970).


text:
    John A. LOMBARDI and Lois Lombardi, Appellants, v. The FLAMING FOUNTAIN, INC., Appellee.
    No. 75-538.
    District Court of Appeal of Florida, Second District.
    Feb. 13, 1976.
    Charles R. Holley, Naples, for appellants.
    James A. Franklin, Jr, of Henderson, Franklin, Starnes & Holt, Fort Myers, for appellee.
   PER CURIAM.

This is a companion appeal to Lombardi v. Flaming Fountain, Inc., 327 So.2d 39, decided this day and consolidated herewith for argument. In view of our disposition in that case the appeal in this one must be disposed of in like manner.

Accordingly, the judgment assessing costs appealed from herein is reversed and the cause is remanded to abide the result of the new trial awarded in the companion case aforesaid.

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


author: GRIMES, Judge.

text:
    PUBLIC EMPLOYEES RELATIONS COMMISSION, Appellant, v. The CITY OF NAPLES, Florida, Appellee.
    No. 75-1186.
    District Court of Appeal of Florida, Second District.
    Jan. 28, 1976.
    Rehearing Denied Feb. 20, 1976.

      Jack L. McLean, Jr., Acting General Counsel, Tallahassee, for appellant.
    John-Edward Alley and Robert A. Hanudel, Miami, Charles K. Allan, Naples; and Alley, Alley & Blue, Miami, for ap-pellee The City of Naples.
   GRIMES, Judge.

This case involves an interpretation of when the local option provisions of Fla. Stat. § 447.603 (1974) come into play.

On December 23, 1974, the Fraternal Order of Police, Local No. 38, filed with the Public Employees Relations Commission (PERC) a petition for certification as the bargaining agent of the policemen of the City of Naples. The Professional Firefighters of Naples, No. 2174, filed with PERC a certification petition with respect to the Naples firemen on April 11, 1975. On May 7, 1975, the City of Naples passed a local option ordinance under Fla.Stat. § 447.603 (1974) which established its own provisions and procedures for a public employees relations commission. The ordinance specified May 13, 1975, as its effective date. On May 13, 1975, the city filed with PERC an application for review and approval of the ordinance.

The city then took the position that jurisdiction over the public employees bargaining process had been transferred to the city upon the passage of the ordinance and the filing with PERC of the application for review. Thereupon, PERC sought to enjoin the city from enforcing or implementing its ordinance until its terms had been approved by PERC. The court ultimately entered an order denying PERC’s application for injunction, and PERC has appealed this order.

The 1968 Constitution included a provision which gave public employees the right to engage in collective bargaining. This right was implemented by the legislature in the passage of the Tucker Act (Part II of Chapter 447) in 1974. This act established a Public Employees Relations Commission to supervise the collective bargaining process. However, Fla.Stat. § 447.603 (1974) provided:

“447.603 Local option. — Any district school board or political subdivision, other than the state or a state public authority, may elect to adopt, by ordinance, resolution, or charter amendment its own provisions and procedures in lieu of the requirement of this part, provided such provisions and procedures effectively secure to public employees substantially equivalent rights and procedures as set forth in this part. Prior to [such provisions and procedures] becoming law, the public employer shall apply to the commission for review and approval as to whether local provisions or procedures, or both, are substantially equivalent to the provisions and procedures set forth in this part. All public employee agreements now in existence shall remain in effect until their expiration.”

Thus, the issue boils down to whether PERC’s approval of the provisions and procedures established by the city’s ordinance is required before the city is entitled to assume jurisdiction of the public employees bargaining procedure.

The city argues that the statute doesn’t specifically say that PERC’s approval is a condition precedent to the effectiveness of the ordinance. The city suggests that the legislature simply intended that PERC would act as a watchdog whereby it would have the right to attack in the courts any local ordinance deemed to be insufficient. On the other hand, PERC points to the fact that the statute requires the public employer to apply to “the commission for review and approval” of its provisions and procedures. PERC suggests that to adopt the city’s position would permit a local entity to pass an ordinance establishing any kind of provisions or procedures and to place the burden upon PERC to seek to have it set aside.

On balance, we are persuaded that PERC’s position must prevail. It is obvious that the Tucker Act represents the result of a comprehensive effort to establish an orderly process for the administration of collective bargaining with public employees. There are detailed provisions for determining the employee organization which is entitled to act as bargaining agent for each bargaining unit, and there is a method provided to handle charges of unfair labor practices. Many of the procedures appear to be similar to those followed in labor matters on the federal level. In this complex area of the law, it is important to have reasonably consistent interpretations. Therefore, if public employee relations are in some instances to 'be supervised on the local level, logic dictates that from the outset the procedures to be followed should be substantially similar to those employed by PERC.

The city contends that its position is consistent with the decentralization philosophy expressed by the constitutional and legislative “Home Rule” provisions. However, Article VIII, Section 2(b) of the Florida Constitution establishes a grant of powers to municipalities “except as otherwise provided by law,” and Fla.Stat. § 166.021(3) (c) (1973) provides that municipalities may enact legislation upon any subject matter except those “expressly preempted to state . . . government . by general law.” We believe that by the passage of the Tucker Act the legislature has seen fit to preempt to the state the subject of public employee bargaining to the extent that a municipality can have no jurisdiction unless the provisions and procedures of its ordinance have been approved by PERC. The Circuit Court of the Fourteenth Judicial Circuit recently reached a similar conclusion in Police Benevolent Association v. The Municipality of Panama City, Florida, Case No. 74-1363, Order entered September 5, 1975.

We note the city’s contention that PERC’s interpretation of the statute would result in an unconstitutional infringement upon the power of the judicial branch of government by permitting PERC, an administrative body, to pass upon the propriety of the city’s legislative enactment. The delegation of the responsibility for determining whether local standards are equivalent to those enacted by the legislature does not appear to us as such an infringement, especially in light of the availability of judicial review of the administrative determination. However, we do not reach the constitutionality of the statute, itself, a question not passed upon by the lower court.

Reversed and remanded.

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


text:
    The PUBLIC EMPLOYEES RELATIONS COMMISSION, Appellant, v. FRATERNAL ORDER OF POLICE, LOCAL LODGE NO. 38 and the City of Naples, Florida, Appellees.
    No. 75-1035.
    District Court of Appeal of Florida, Second District.
    Jan. 28, 1976.
    Rehearing Denied Feb. 20, 1976.

      Thomas W. Brooks, Staff Atty., Tallahassee, and Jack L. McLean, Jr., Acting Gen. Counsel, Tallahassee, for appellant.
    John-Edward Alley and Robert A. Hanudel, Miami, Charles K. Allan, Naples, and Alley, Alley & Blue, Miami, for ap-pellee, The City of Naples.
   GRIMES, Judge.

One of the issues in this interlocutory appeal has been determined in Public Employees Relations Commission v. City of Naples, Florida, Fla.App.2d 1975, 327 So.2d 41 (1976), in which this court held that the City of Naples could not assume jurisdiction over public employees bargaining matters pursuant to Fla.Stat. § 447.603 (1974) until the provisions and procedures of its ordinance were approved by the Public Employees Relations Commission (PERC).

The other issue in this case is whether the City is entitled to a circuit court determination of whether it would be an unfair labor practice to give a pay raise to the Naples Police Department at a time when there is pending before PERC a petition for certification filed on behalf of certain members of that department. We hold that the circuit court had no jurisdiction to hear this issue.

Even though the City is seeking a declaration with respect to action which has not yet been taken, the making of such a determination would be equivalent to passing on the question of whether the particular activity constituted an unfair labor practice. Fla.Stat. § 447.503 (1974) vests PERC with jurisdiction to determine unfair labor practices. PERC’s orders are subject to review in the appropriate district court of appeal. While the Tucker Act (Chapter 447, Part II) does vest authority in the circuit court to determine certain issues concerning public employees labor matters, there is nothing in the Act which would give the circuit court jurisdiction to consider the question which the City wishes to have answered.

On the federal level, it has been held that the courts do not have concurrent jurisdiction with the National Labor Relations Board to determine matters which are arguably within the scope of the unfair labor practice provisions of the National Labor Relations Act. The justification for pre-empting to the NLRB jurisdiction over unfair labor practices was more recently discussed in Amalgamated Ass’n of St. Elec. Ry. and Motor Coach Employees v. Lockridge, 1971, 403 U.S. 274, 91 S.Ct. 1909, 29 L.Ed.2d 473, where the U.S. Supreme Court said:

“The rationale for pre-emption, then, rests in large measure upon our determination that when it set down a federal labor policy Congress plainly meant to do more than simply to alter the then-prevailing substantive law. It sought as well to restructure fundamentally the processes for effectuating that policy, deliberately placing the responsibility for applying and developing this comprehensive legal system in the hands of an expert administrative body rather than the federalized judicial system. Thus, that á local court, while adjudicating a labor dispute also within the jurisdiction of the NLRB, may purport to apply legal rules identical to those prescribed in the federal Act or may eschew the authority to define or apply principles specifically developed to regulate labor relations does not mean that all relevant potential for debilitating conflict is absent.”

While the Tucker Act differs from the National Labor Relations Act in many particulars, the philosophy expressed by those provisions relating to administrative jurisdiction over unfair labor practices seems to be the same. It appears to us that the legislature intended for PERC to have exclusive jurisdiction over unfair labor practice questions of the type posed by the City in this case.

The order on appeal is reversed, and the case is remanded with directions that the complaint and the counterclaim be dismissed.

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

      . Coincidentally, the Fraternal Order of Police has pending before PERC an unfair labor practice charge against the City predicated upon the withholding of wage increases from police department personnel.

      . E. g., Fla.Stat. §§ 447.607 and 447.509 (1974).

      . E. g., San Diego Building Trades Council v. Garmon, 1959, 359 U.S. 236, 79 S.Ct. 773, 3 L.Ed.2d 775.

      . Obviously, at such time as the City’s local option ordinance is approved by PERC, jurisdiction over unfair labor practices will then fall under the comparable public employees relations commission established by the ordinance.


text:
    Darris L. HASELY, Appellant, v. STATE of Florida, Appellee.
    No. 75-1117.
    District Court of Appeal of Florida, Second District.
    Feb. 25, 1976.
    Jack O. Johnson, Public Defender, and Stephen O. Rushing, Asst. Public Defender, Bartow, for appellant.
    Robert L. Shevin, Atty. Gen., Tallahassee, and Richard G. Pippinger and Charles Corees, Asst. Attys. Gen., Tampa, for ap-pellee.
   PER CURIAM.

Affirmed. See State v. Jones, Fla.1967, 204 So.2d 515.

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


author: . SMITH, Judge.

text:
    The STATE of Florida on the relation of Richard Cade GENTRY, Relator, v. The Honorable Warren L. FITZPATRICK, as Judge of the Circuit Court of the Fourteenth Judicial Circuit in and for Bay County, Florida, Respondent.
    No. AA-295.
    District Court of Appeal of Florida, First District.
    Feb. 20, 1976.
    J. Robert Hughes, of Barron, Redding, Boggs & Hughes, Panama City, for relator.
    Robert L. Shevin, Atty. Gen., and Donald K. Rudser, Asst. Atty. Gen., Tallahassee, for respondent.
   . SMITH, Judge.

Invoking Rule 3.191, R.Cr.P., and our decision in State ex rel. Wright v. Yawn, 320 So.2d 880 (Fla.App.1st, 1975), relator Gentry filed with us a suggestion for writ of prohibition to prevent his Bay County trial on charges of manslaughter in the motor vehicle deaths of three persons. We issued a rule nisi and have now considered respondent’s return, the briefs and oral argument.

Gentry was arrested and charged on June 12, 1975, the night he allegedly killed three persons while driving a truck with culpable negligence and while intoxicated. Secs. 782.07, 860.01, F.S.1973. The State did not file an information until October 31 and did. not arraign Gentry until November 10. The trial was set to begin December 3. December 9 is 180 days from June 12.

The complexities of the case and the scattering of documentary evidence and witnesses made it apparent to Gentry’s counsel that prodigious efforts to complete discovery before trial on December 3 would be unavailing. On November 14, Gentry filed a motion to discharge for denial of a speedy trial, citing the State’s 141-day delay in bringing formal charges and the accused’s resulting dilemma in choosing between a speedy trial, and adequate discovery. The trial coutft took the motion under advisement until a day nearer the scheduled trial. On November 26, with the motion to discharge still not ruled on, Gentry’s counsel applied to the trial court for a stay of all proceedings and for leave to abandon his rigorous schedule of depositions and investigation, that Gentry might apply here for a writ of prohibition. The trial court granted the requested stay without prejudice to Gentry’s right to speedy trial under Rule 3.191 and constitutional guarantees.

We intervened by writ of prohibition in Wright to prevent a criminal trial scheduled to begin beyond the Rule’s 180-day period without sanction of a timely order extending the period under subsections (d)(2) and (f). Mullin v. State, 307 So.2d 829 (Fla.App.3d, 1975), cert. den. 317 So. 2d 761 (Fla.1975). After the period of the Rule had run, the trial court found that Wright had been unready for trial within 180 days because of his counsel’s continuing discovery efforts, and so denied a motion for discharge. We held that the State’s failure to try Wright within 180 days could not thus be retrospectively excused on grounds of unreadiness, when that unreadiness was itself a result of the State’s 142-day delay in bringing formal charges.

Our Wright decision recognized that the accused’s constitutional rights to a speedy trial and to the effective assistance of counsel are “co-equal” and that he cannot be coerced to sacrifice one in order to enjoy the other. 320 So.2d at 882. Duress always results, the Supreme Court said in another context, “where the choice is ‘between the rock and the whirlpool.’ ” Garrity v. New Jersey, 385 U.S. 493, 498, 87 S. Ct. 616, 619, 17 L.Ed.2d 562, 566 (1967).

The value of effective preparation by counsel is inestimable. Preparation for trial is simple only to the lazy or uninformed. It is complex to lawyers for whom no fact exists if it cannot be proven, who doubt the easy assumption and the merely plausible witness, who exhaust all hypotheses and themselves in tracking the evidence. Such craftsmanship in advocacy is the pride of our judicial system. Thus in any criminal case the accused has potentially conflicting interests in a speedy trial and in adequate investigation. That conflict is exacerbated when, as here, the State consumes most of the Rule’s 180-day period before filing an indictment or information. But it does not follow, as the present suggestion assumes, that such a conflict may be relieved only by sacrificing one or the other of the accused’s interests. His right to a speedy trial derives from the Florida and United States Constitutions, not from the Rule, and the Rule’s 180-day prescription neither excuses a shorter but unconstitutional delay nor establishes an absolute deadline for trial in all events. Barker v. Wingo, 407 U.S. 514, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972); State ex rel. Butler v. Cullen, 253 So.2d 861 (Fla.1971). Subsections (d)(2) and (f) permit a reasonable extention of the 180-day period by timely order entered in exceptional circumstances. Those circumstances may include an exceptional burden of preparation, noticed on the court’s own motion if not on motion of a party. Rubiera v. Dade County, 305 So.2d 161, 163 (Fla. 1974).

The trial court acted within its power in delaying a ruling on the motion for discharge until the facts could be better known, just before the December 3 trial. If we were now to prohibit the trial on grounds that the trial judge could not constitutionally have denied Gentry a discharge, we would deprive the trial judge of the alternative that was still available to him under Rule 3.191(d)(2) and (f) when the proceedings below were stayed. That we cannot do.

In holding that the Rule did not require Gentry’s discharge before the scheduled December 3 trial, we do not pass on the latent constitutional issue of whether, under the standards of Barker v. Wingo, supra, 407 U.S. at 530-33, 92 S.Ct. at 2192-93, 33 L.Ed.2d at 117-18, Gentry was denied the speedy trial assured him by the Constitution. If an attack based on those standards is made, the trial judge would of course consider the reasons for and the reasonableness of the State’s 141-day delay in filing formal charges.

The prayer of the suggestion for writ of prohibition is denied and the rule nisi is discharged.

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


author: DOWNEY, Judge.

text:
    Arthur C. HOFFMAN, Individually, and as Administrator of the Estate of Marion A. Hoffman, Petitioner (Appellant), v. JACKSON’S MINIT MARKETS, INC., et al., Respondents (Appellees).
    Nos. 74-386, 74-347.
    District Court of Appeal of Florida, Fourth District.
    Feb. 20, 1976.
    Larry Klein, Howell, Kirby, Montgomery, D’Aiuto, Dean & Hallowes, P. A., and Cone, Wagner, Nugent, Johnson & Mc-Keown, P. A., West Palm Beach, for petitioner.
    Marjorie D. Gadarian, of Jones, Paine & Foster, P. A., West Palm Beach, for respondents.
   DOWNEY, Judge.

This appeal involves a dram shop action against a market that allegedly sold intoxicants to a minor.

Marion Hoffman was killed in an automobile accident which allegedly resulted from the intoxicated condition of the driver of her car, Ernie Joe Bohannon. During the trial of the wrongful death action arising from the accident, the appellee sought to impeach Bohannon’s testimony by means of a prior inconsistent statement Bohannon had given to the police during the homicide investigation after the accident. Appellant objected to the admissibility of the statement on the ground that it was privileged by virtue of § 316.066(4), F.S.1973. The court sustained the objection and excluded the statement. After the jury returned a verdict for appellant the appellees moved for a new trial, contending among other things, that the court erred in refusing to allow the statement into evidence. The court granted the ap-pellees a new trial because it had erred in holding the statement was privileged under § 316.066(4).

Both parties agree that the statement in question was not privileged since it was not given as part of the accident report required by § 316.066(4), F.S.1973. However, in appealing from the order granting a new trial appellant contends that the trial court was correct in refusing to admit the statement but for the wrong reason. Conceding that the statement was not inadmissible because not privileged, appellant asserts that it was inadmissible nonetheless because appellees failed to lay a proper predicate for its admissibility as required by § 90.10, F.S.1973. As authority for that position appellant points to Hancock v. McDonald, Fla.App.1963, 148 So.2d 56, in which the trial court was affirmed for excluding a statement offered for impeachment because no predicate was laid, although the only objection made in the trial court was that the statement was privileged under the predecessor of § 316.-066(4), F.S.1973.

While we find the Hancock case persuasive, it is silent as to a point which we believe to be decisive of this case.

Because Bohannon was in prison while these proceedings were taking place, his deposition was taken on two occasions prior to trial and used by appellant to bolster his case. As previously indicated, ap-pellees attempted to impeach Bohannon’s deposition testimony by a prior statement Bohannon made to the police, but the trial court sustained appellant’s objection that it was privileged. Recognizing now that the specific ground for the objection was without merit, appellant contends there was a good ground for the objection, viz., appel-lees had not laid the predicate required by § 90.10, F.S.1973. But the fallacy in this argument is that had appellant specified that objection, appellees were in a position to rectify the deficiency and lay the proper predicate to facilitate the admissibility of the statement. Only parts of the Bohan-non depositions were read into evidence. But our examination of the remainder of the deposition of March 3, 1972, demonstrates that it contained an adequate foundation to comply with the statute and make the statement admissible. The keynote of trial procedure should be fair play. It would be antithetical to allow appellant to prevail upon an unannounced ground for objection when, if it had been made it could have been readily cured. In Nat Harrison Associates, Inc. v. Byrd, Fla. App.1971, 256 So.2d 50, 53, this court stated :

“Where one desires to make an objection to a question propounded to a witness, the ground of the objection should be stated with specificity, unless the ground for the objection is clearly apparent. Caldwell v. People’s Bank of Sanford, 1917, 73 Fla. 1165, 75 So. 848, 852; Atlantic Coast Line R. Co. v. Shouse, 1922, 83 Fla. 156, 91 So. 90, 95. This rule is supported by the notion that the ultimate aim of trial procedure is the development of the truth rather than the obfuscation of it. A specific objection provides the trial judge with a clearcut issue upon which to rule and the adverse party with an opportunity to meet the objection by restating his question or by any other appropriate method. (Emphasis is added.)”

In view of the foregoing the order granting a new trial on all issues is affirmed.

OWEN, J., and LEE J. CAIL, Associate Judge, concur.


author: BOARDMAN, Acting Chief Judge.

text:
    George KILLINGSWORTH, Individually, et al., Appellants, v. MONTGOMERY WARD & COMPANY, and Ryder Truck Rental, Appellees.
    No. 75-447.
    District Court of Appeal of Florida, Second District.
    Feb. 18, 1976.
    Lex M. Taylor, Jr. of Taylor & Laurent, Lakeland, for appellants.
    A. H. Lane of Langston, Lane, Massey, Trohn, Clarke & Bertrand, Bartow, for ap-pellees.
   BOARDMAN, Acting Chief Judge.

Appellants/plaintiffs, all members of the George Killingsworth family, residents of Polk County, Florida, were vacationing in the State of New Mexico when the automobile in which they were riding was involved in a collision with a Ford two-ton truck operated by an employee of appellee, Montgomery Ward & Company. Appellee, Ryder Truck Rental, leased said vehicle to Montgomery Ward & Company. The appellants filed suit in Polk County for damages in this personal injury action arising out of the collision. The appellees were foreign corporations authorized to do business in Florida. No action was filed in New Mexico. Appellees filed a motion to transfer, abate or dismiss the action on the ground of forum non conveniens. After hearing, the trial court entered its order abating the action, leaving appellants to seek redress of their claimed injury in the courts of the State of New Mexico. This timely appeal from that order followed.

There was no question as to jurisdiction of the circuit court in Polk County to proceed, service of process having been accomplished upon appellees here in Florida in accordance with Section 48.081(5), Florida Statutes, which authorizes service on any corporation having a business office in the state and engaged in transaction of business therefrom. This statute provides that the cause of action does not have to arise from business within the state. See Crown Colony Club Ltd. v. Honecker, Fla. App.3d, 1974, 307 So.2d 889.

The sole issue, therefore, concerns the question of whether Florida or New Mexico is the proper venue. Section 47.051, Florida Statutes, provides in essential part:

. Actions against foreign corporations doing business in this state shall be brought in a county where such corporation has an agent or other representative, where the cause of action accrued, or where the property in litigation is located. [Emphasis added].

The trial court, as stated previously herein, abated the action and in doing so applied the doctrine of forum non conveniens. While principles of this doctrine may have merit under certain peculiar factual circumstances, we find no such circumstances are present here. We are, however, persuaded by the decision of our sister court in the case of Adams v. Seaboard Coast Line R.R. Co., Fla.App.1st, 1969, 224 So.2d 797, which decided that the doctrine of forum non conveniens applies only where both parties are nonresidents and the cause of action accrued outside the state. We adopt the rationale of Adams, supra. We hold that appellants should not be denied access to their own state courts in suing corporate entities whose interests, although nationwide, are also firmly established and entrenched in their state. Further, we believe that the convenience of the parties and the ends of justice will best be served by. this action being litigated in the courts of Florida. In light of the applicable statutory provision and the rationale of Adams, supra, it is clear to us that the trial court did not have authority to abate this action. We hold that the doctrine of forum non conveniens is not applicable and, consequently, the courts of this state are the proper forum.

Accordingly, we reverse and remand to the trial court for further proceedings consistent with this opinion.

Reversed and remanded.

GRIMES and SCHEB, JJ., concur.


author: BOYER, Chief Judge.

text:
    The STATE of Florida upon the relation of David Lee WILLIAMS and James H. Williams, Petitioners, v. J. Donald BRUCE, as Judge of the Circuit Court of the Fourth Judicial Circuit, in and for Duval County, Florida, Respondent.
    Nos. AA-366 and AA-417.
    District Court of Appeal of Florida, First District.
    Jan. 21, 1976.
    Rehearing Denied March 11, 1976.
    Louis O. Frost, Jr., Public Defender, Craig Williams, Asst. Public Defender, for petitioners.

      Robert L. Shevin, Atty. Gen., and George Georgieff, Asst. Atty. Gen., for respondent.
   BOYER, Chief Judge.

Relator, David Lee Williams, filed in this Court a Suggestion for Writ of Prohibition in which he contended that he could not be tried for the offense for which he was charged in the Circuit Court of Duval County, alleging that his right to speedy trial had been violated. We issued Rule Nisi. Thereafter, Relator, James H. Williams, Jr., filed an identical suggestion resulting in his case being consolidated with that of Relator David Lee Williams, all parties having consented to the consolidation. The sole issue for our determination is whether or not Rule 3.040, RCrP is applicable in computing the time period under the “Speedy Trial Rule”, Rule 3.191, RCrP. That query does not appear to have been explicitly answered by any reported decision.

Rule 3.191(a)(1), RCrP provides in material part as follows:

“The time periods established by this section shall commence when such person is taken into custody as a result of the conduct or criminal episode giving rise to the crime charged.”

The Supreme Court of Florida has clearly and explicitly held that the above cited portion of the rule means what it says and that when the crime involved is a felony the 180 day time period provided in the rule commences to run “from the date the Petitioner was taken into custody”. (Allen v. State, Sup.Ct.Fla.1973, 275 So.2d 238) The issue is, however, whether, in the computation of said 180 day period, the day that the person charged with the crime is taken into custody shall be included or whether the time period shall commence to run on the date following the date such person is taken into custody. Rule 3.040, RCrP appears to us to answer that question as explicitly as the English language will permit. That rule provides in material part as follows:

“In computing any period of time prescribed or allowed by these rules, except Rule 3.130, by order of court, or by any applicable statute, the day of the act or event from which the designated period of time begins to run is not to be included. The last day of the period so computed shall be counted, unless it is Saturday, Sunday or legal holiday, in which event the period shall run until the end of a next day which is neither a Saturday, Sunday nor a legal holiday.” (Emphasis added)

We therefore hold that in computing the “speedy trial period” provided by Rule 3.-191; RCrP, the date that the person charged is taken into custody as a result of the conduct or criminal episode giving rise to the crime charged shall not be included.

As Rule 3.040, RCrP specifically provides, the last date of the period so computed shall be counted, unless it is Saturday, Sunday or a legal holiday, in which event the period shall run until the end of the next day which is neither a Saturday, Sunday or a legal holiday. (Allen v. State, supra and Griffith v. State, Fla. App.2d 1974, 299 So.2d 618)

Petitioners have cited to us several of our own decisions and decisions of other appellate courts wherein the computations therein recited lead to the conclusion that the day the persons there charged were taken into custody was included in the periods computed in those cases. We have examined each of those cases and find that there the date of commencement of computation of the periods involved was not an issue, therefore those cases are not controlling. Insofar as those cases might be construed as being in conflict herewith, we recede therefrom.

It having been made to appear that upon application of Rule 3.040, RCrP, the “180 Rule” was not violated in either of the cases here before us, we determine that Rule Nisi was improvidently issued: The same are therefore hereby discharged and petitioners’ Suggestions for Writ of Prohibition are denied.

RAWLS and McCORD, JJ., concur.


author: PER CURIAM. RAWLS, Acting Chief Judge

text:
    Don Campbell SMITH, Appellant, v. Ann Frownie Smith KILGORE, Appellee.
    No. X-96.
    District Court of Appeal of Florida, First District.
    Feb. 3, 1976.
    Rehearing Denied March 9, 1976.
    James L. Nipper, Jacksonville, for appellant.
    Lyman T. Fletcher, Jacksonville, for ap-pellee.
   PER CURIAM.

Affirmed. See Dinkel v. Dinkel, 322 So.2d 22 (Fla.1975).

McCORD, J., and COBB, WARREN H., Associate Judge, concur.

RAWLS, Acting C. J., dissents.

RAWLS, Acting Chief Judge

(dissenting).

This appeal involves a battle over the custody of two small children. Appellant father challenges the trial court’s order granting custody to the mother.

Late in 1970, the parties were married and living in Marion County, Tennessee. The wife initiated a divorce action which culminated in a final decree of divorce entered by the Tennessee court on February 3, 1971. The final decree states in pertinent part:

“. . . custody of the two minor children, Greggory Carter, age 3, and Kelly Ann age 9 months, be temporarily vested in the parents of the defendant, Don C. Smith, JOE & WILLIE MAY SMITH, and shall be removed to their home in Florida for a period of eight months, subject to further orders of this Honorable Court.”

The final decree further provided that a ne exeat bond be posted by the paternal grandparents in the sum of $5,000.00, which they failed to do.

Immediately after the final decree was entered, the children were moved to the grandparents’ home in Duval County, Florida, and the husband immediately moved from Tennessee to his parents’ home to live with his children. Approximately a month after her divorce, the mother married a neighbor, Mr. Carlos Kilgore, who had two children living at home. The minor children lived with their paternal grandparents and father for approximately one and a half years. In March of 1971, the father met his present wife and they dated for more than a year, during which time they jointly spent a great deal of time with the children. The father and his present wife were married on June 9, 1972. The children have lived continuously with the father and stepmother since their marriage. They call their stepmother “mommy” and recognize her as their natural mother.

The manifest weight of the evidence in this case is that appellee, the children’s natural mother, was involved in a relationship with her neighbor which culminated in a divorce between he and his wife in January, 1971, and a divorce between the natural mother and father in February, 1971; with the natural mother agreeing to a temporary award of custody of her two infant children to the father’s parents and for their removal to Florida, and the marriage of the natural mother and her neighbor in March of 1971. The uncontradicted evidence is that these two infant children were suffering from malnutrition at the time they came to Florida to live with their paternal grandparents. And the record is further uncontradicted that these infant children have been well cared for and afforded an excellent home, and material and spiritual environment since they have resided in Florida with their paternal grandparents and father.

Likewise, the manifest weight of the evidence in this cause is that the paternal grandparents ignored the mandates of the Tennessee court as to the custody of the two minor children. The trial court was justifiably upset about the refusal on the part of the paternal grandparents to comply with orders of the Tennessee court, and such apparently influenced his ultimate decision of awarding custody to the mother. I do not condone the disobedience of the Tennessee court’s order by the paternal grandparents; however, such is not the question in the instant cause. As the trial court correctly found, the Florida court had jurisdiction of these children, and thus the cardinal canon applies that the welfare of the child is the sole pole star to be viewed.

I am fully in accord with Justice Adkins’ statement in Dinkel v. Dinkel that: “It is the function of the trial judge in a child custody proceeding to determine what is in the best interests of the child.”, and that an appellate court should not disturb the trial judge’s findings absent a showing of abuse of discretion. However, I do not construe Dinkel as eliminating the question of “abuse of discretion of a trial judge” by an appellate court on appeal where, as I view this record, the overwhelming weight of the evidence is that these children of tender years are being uprooted from a healthy family environment, primarily, to give their natural mother a second chance to be a good and wholesome mother to them. If this record does not demand an appellate review, then I would say that appeals of child custody orders have been, for all practical purposes, eliminated. Viewing the crowded docket of this Court, it is tempting to “wash our hands” and affirm upon the concept that the trial court is positioned to determine much more advantageously what is in the best interests of the minor children due to its opportunity to observe the demeanor and personalities of the parties and their witnesses, and to personally evaluate these individuals’ feelings, their sensitivities, powers and other influences. But this record speaks loud and clear. At the outset the mother exerted minimal efforts to fulfill a mother’s responsibility to these children when they were 9 months and 3 years of age. During the ensuing three-year period, the mother exerted little effort to communicate with them or provide for their welfare. The father quit his employment in Tennessee, moved to Florida to be with his children, and did provide for them.

This record overwhelmingly reflects, in my opinion, that the welfare of these young children will be best provided by leaving them in the environment in which they have lived successfully for almost five years.

      . The trial court observed : “In this instance, the Smiths have done everything from beginning to end in violation of a Tennessee court order. It’s true enough that Mrs. Kolgore agreed the grandparents could have custody. She also agreed, and apparently the grandparents agreed, to pose a five thousand dollar bond. There is no question that that bond was not posted as required. Mrs. Smith, and I am going to say senior, because really don’t remember names. Mr. Smith’s mother did receive copies of these petitions. And apparently did refuse to accept additional communication from the court up there. They have not complied with the order of the court, certainly. The court gave her custody and— her and her husband, and they immediately turned custody over to someone else who did not have the right to custody. What you are seeking now is a reward for ignoring the orders of the court. I think the children are probably happy here. I don’t think there is any doubt about it, really.”

      . Dinkel v. Dinkel, Supreme Court, 322 So. 2d 22, 24, opinion filed August 14, 1975.


author: PER CURIAM. MILLS, Judge

text:
    James M. AVERY, Appellant, v. Frances M. AVERY, Appellee.
    No. V-418.
    District Court of Appeal of Florida, First District.
    Feb. 18, 1976.
    Paul L. Cummings, Pensacola, for appellant.
    Alan H. Rosenbloum and Robert J. Mayes, of Levin, Warfield, Graff, Mabie & Rosenbloum, Pensacola, for appellee.
   PER CURIAM.

Oral argument in this case was initially heard by a panel of this Court consisting of Judges Rawls, Johnson and Mills. An opinion authored by Judge Johnson was filed on June 16, 1975. In that opinion Judge Mills concurred and Judge Rawls concurred in part and dissented in part. Appellant thereafter filed a petition for rehearing.

Effective July 1, 1975 Judge Johnson retired as a Judge of this Court.

Judge Johnson having retired, as aforesaid, Judge Boyer was substituted in his place and stead as a member of the three-judge panel (see Sec. 4(a), Art. V, Constitution of the State of Florida) for consideration of the petition for rehearing. Upon consideration of that petition Judges Rawls and Boyer determined that it was well founded, Judge Mills being of the view that the petition should be denied. Rehearing was granted and this case was orally argued for a second time before Judges Rawls, Boyer and Mills on October 1, 1975.

The facts and issues of this case have been sufficiently recited in our opinion which, because of our improvidently issued mandate, has already been published and reported. (Avery v. Avery, Fla.App. 1st 1975, 314 So.2d 198) No useful purpose will be served by repetition here. Upon reconsideration we recede from that portion of the opinion wherein we stated:

“We do not deem these circumstances sufficient to justify a modification of the custody provisions of the final judgment.” (314 So.2d 200)

and determine instead that the facts recited demonstrate a material and substantial change in conditions and circumstances such as to have justified the modification order of the trial judge awarding custody of the two minor children to the appellant-father. In any child custody proceeding, the welfare of the child is the prime consideration. (Dinkel v. Dinkel, Sup.Ct. Fla.1975, 322 So.2d 22) It is the function of the trial judge in a child custody proceeding to determine what is in the best interests of the child and an appellate court should not reverse the trial judge’s findings absent a showing of abuse of discretion. (Dinkel v. Dinkel, supra)

As to the issue regarding the award of the mobile home to the appellee-mother, we adhere to our prior opinion.

That portion of the order here appealed awarding the custody of the two minor children to the appellant-father is affirmed. That portion of said order awarding the mobile home to the appellee-mother is reversed. Our prior opinion reported at 314 So.2d 198 and our mandate dated July 2, 1975 are modified and amended in accordance herewith.

It is so ordered.

BOYER, C. J., and RAWLS, J., concur.

MILLS, J., dissents.

MILLS, Judge

(dissenting) :

I dissent. I adhere to the majority opinion reported in Avery v. Avery, 314 So.2d 198 (Fla.App. 1st, 1975).


author: SMITH, Judge.

text:
    Maurice FOX, Petitioner, v. The SOUTH FLORIDA REGIONAL PLANNING COUNCIL and the Florida Land and Water Adjudicatory Commission, Respondents. Maurice FOX, Appellant, v. The FLORIDA LAND AND WATER ADJUDICATORY COMMISSION et al., Appellees.
    Nos. X-487, X-495.
    District Court of Appeal of Florida, First District.
    Feb. 3, 1976.
    Rehearing Denied March 11, 1976.

      Raymond W. Royce, of Scott, Burk & Royce, Palm Beach, and Morris M. Schnitzer, of Schnitzer & Schnitzer, Newark, N. J., for appellant and petitioner.
    Robert L. Shevin, Atty. Gen., James D. Whisenand and John P. Ingle, III, Asst. Attys. Gen., Allan Milledge, of Milledge, Horne & Hermelee, Miami, Louis F. Hu-bener, Tallahassee, for appellees and respondents.
   SMITH, Judge.

At issue in these consolidated cases is the timeliness of an appeal filed by the Division of State Planning, Department of Administration, with the Florida Land and Water Adjudicatory Commission from an order of the Palm Beach County Board of County Commissioners approving with conditions a development of regional impact proposed by appellant/petitioner Fox. Sec. 380.07(2), F.S.1973. In parallel actions, the Commission denied Fox’s motion to dismiss the appeal as untimely and the Circuit Court of Leon County dismissed Fox’s independent suit to enjoin the Commission’s consideration of the administrative appeal. Fox thereupon petitioned this Court for interlocutory review of the Commission’s action [§ 120.68(1), (2), F.S.1973 (1974 Supp.)] and appealed from the adverse judgment of the circuit court.

The Palm Beach County Board of County Commissioners met regularly on September 3, 1974, and adopted a resolution, reduced to writing and filed in the public records on that day, approving with conditions the development of regional impact proposed by Fox according to the procedures prescribed by The Florida Environmental Land and Water Management Act of 1972, as amended. Ch. 380, F.S.1973 (1974 Supp.). Section 380.07 of the Act created the Florida Land and Water Adjudicatory Commission, consisting of the Governor and cabinet, and provides in part:

“(2) Whenever any local government issues any development order ... in regard to any development of regional impact, a copy of such order shall be transmitted to the state land planning agency [the Divison of State Planning, Department of Administration] and the owner or developer of the property affected by such order. Within thirty days after the order is rendered, either the owner, developer, an appropriate regional planning agency [here, the South Florida Regional Planning Council], or the state land planning agency may appeal the order to the Florida land and water adjudicatory commission by filing a notice of appeal with the commission. .” (emphases added.)

Although the Board of County Commissioners entered its development order on September 3 and issued it on that day by reducing it to writing and filing it among public records, the Board did not transmit a copy of the order to the Division of State Planning or to Fox until September 10, when, as the Court below found, copies were mailed to them. On September 12 and 13, respectively, Fox and the Division of State Planning received their copies of the order so transmitted. On October 10 the Division of State Planning filed its notice of appeal with the Adjudicatory Commission.

The question, of course, is whether the development order was “rendered” when it was adopted, written and publicly filed on September 3 — if so, the October 10 appeal was untimely — or whether rendition required transmittal of copies of the order to or receipt of them by the specified recipients. The lawyers in this case have given us resourceful arguments concerning the purposes of the Act, the significance of various time limitations thereby imposed and the desirability of interpreting § 380.-07(2) in such a way as to promote uniformity and predictability of the period in which appeals may be taken to the Adjudicatory Commission. We conceive, however, that we have no license to wrench the words of the statute to make them more appropriately serve our notion of the legislative purpose; nor is there any need to burden them with the encrustment of years of interpretation of “rendered” as applied to judicial judgments. See American Bankers Life Assur. Co. of Fla. v. Williams, 212 So.2d 777 (Fla.App.1st, 1968). The choice and sequence of the verbs employed in § 380.07(2) implicitly but, we think, clearly defines rendition as issuance and transmittal of the development order. The legislature apparently meant to allow for delays between the issuance of an order and its mailing or delivery to the Division of State Planning and the affected owner or developer. It therefore made transmittal the event which completes the rendition of the order and commences the thirty-day period for appeal. The Division of State Planning having appealed on October 10, exactly thirty days after the rendition of the development order, its appeal was timely.

It would be inappropriate to consider the time for appeal as extended by three days under the service by mail provisions of Rule 3.4, b(3), F.A.R., applied in Dubin v. Department of Business Reg., 252 So.2d 290 (Fla.App.1st, 1971). The Rule and the Dubin case pertain to the calculation of the period for appeals to or other applications in the appellate courts of Florida, and they cannot be applied to influence the time for appeal within the administrative process. Henry MacAllister House Mover v. Johnson, 281 So.2d 306 (Fla.1973). Contrast Martorano v. Florida Ind. Comm’n, 160 So.2d 744 (Fla.App.3d, 1963), in which the statutory period for review began with “notice” to the party affected, and three days were judicially added to the mailing date to allow for receipt.

If our view of the statute has the unfortunate effect of subjecting parties in local government proceedings to “the vagaries of clerical happenstance and postal miscarriage,” as Fox’s lawyer aptly puts it, we can at least suggest, and we do, that local governments minimize the uncertainty of the rendition dates of their order by appending to them appropriate certificates of the transmittal dates.

The judgment of the circuit court is affirmed and the prayer of the petition for review is denied.

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


text:
    Wendell P. HOLMES, Appellant (Defendant), v. Joseph R. McDANIEL, Appellee (Plaintiff).
    No. AA-51.
    District Court of Appeal of Florida, First District.
    Feb. 3, 1976.
    Rehearing Denied March 11, 1976.
    William H. Maness, Jacksonville, for appellant.
    Lacy Mahon, Jr., of Mahon, Farley & Vickers, Jacksonville, for appellee.
   PER CURIAM.

Upon considering the briefs, the record, and oral argument, we find no reversible error.

Accordingly, the interlocutory appeal is dismissed.

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


text:
    Max Lowell AKINS, Appellant, v. Raymond HAMLIN, Sheriff, Leon County, Florida, Appellee.
    No. Y—181.
    District Court of Appeal of Florida, First District.
    Feb. 3, 1976.
    Rehearing Denied March 9, 1976.

      O. Earl Black, Jr., of James C. Conner, Jr., Law Offices, Tallahassee, for appellant.
    Robert L. Shevin, Atty. Gen., and Wallace E. Allbritton, Asst. Atty. Gen., for ap-pellee.
   SMITH, Judge.

Pursuing Florida officers arrested appellant Akins in Bainbridge, Georgia, for resisting arrest with violence in the course of his two-state attempt to escape apprehension for a Tallahassee traffic offense. Sec. 843.01, F.S.1973. Without the benefit of extradition proceedings in Georgia, the arresting officers brought him back to Florida to face charges and trial. On his appeal from an order of the Circuit Court denying Akins a writ of habeas corpus, he asserts that his arrest and forcible return to Florida were illegal and that the State, having illegally secured his presence within the jurisdiction of a Florida court, may not try him.

It was held in Ker v. Illinois, 119 U.S. 436, 7 S.Ct. 225, 30 L.Ed. 421 (1886) and Frisbie v. Collins, 342 U.S. 519, 72 S. Ct. 509, 96 L.Ed. 541 (1952), that the manner in which an accused is brought into the jurisdiction of the prosecuting authority and court does not, on due process grounds, affect the court’s power to proceed. The trial court found that doctrine still viable in Florida and controlling in these circumstances. Jolly v. Wainwright, 175 So.2d 245 (Fla.App.2d, 1965); Hunter v. State, 174 So.2d 415 (Fla.App.3d, 1965). We agree. In Georgia the pursuing officers had outrun the reach of Florida statutes empowering them as officers to arrest Akins. Secs. 321.05, 901.25, F.S.1973. Georgia has no fresh pursuit statute comparable to § 941.31, F.S.1973. But the officers as private persons had power under Georgia law to effect the arrest. Sec. 27-211 Ga.Code. This is not a case in which the police were foreclosed from invoking arrest privileges of private persons because they asserted and the accused acquiesced in the power of their official positions. Contrast Collins v. State, 143 So. 2d 700 (Fla.App.2d, 1962).

The State does not question that the terms of the Uniform Interstate Extradition Act, § 941.01 et seq., F.S.1973, and its counterpart Georgia statutes, §§ 44 — 401 to 44-429 Ga.Code Ann., apply. But, as the State argues, an accused has no constitutionally protected interest in extradition proceedings. Due process of law is satisfied when one present in court is convicted after being fairly apprised of the charges and after a fair trial in accordance with constitutional safeguards. Frisbie, 342 U. S. at 522, 72 S.Ct. at 512, 96 L.Ed. at 545-46. The limitations justifiably placed on the doctrine when the government was privy to abduction, torture and kidnapping [United States v. Toscanino, 500 F.2d 267 (2d Cir. 1974)] do not require the complete abrogation of the rule. United States ex rel. Lujan v. Gengler, 510 F.2d 62 (2d Cir. 1975); United States v. Lovato, 520 F.2d 1270 (9th Cir. 1975); Jolly v. Wainwright, 175 So.2d 245 (Fla.App.2d, 1965). Neighboring states are not sanctuaries.

Affirmed.

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

      . “A private person may arrest an offender, if the offense is committed in his presence or within his immediate knowledge; and if the offense is a felony, and the offender is escaping, or attempting to escape, a private person may arrest him upon reasonable and probable grounds of suspicion.”


author: PER CURIAM. BOYER, Chief Judge

text:
    Cecil Edward HOLMES, Appellant, v. Ruth Dorsey HOLMES, Appellee.
    No. X-155.
    District Court of Appeal of Florida, First District.
    Feb. 5, 1976.
    Rehearing Denied March. 9, 1976.
    Louis Glick, Pensacola, for appellant.
    Joe G. Hosner, of Hosner & Taylor, Pensacola, for appellee.
   PER CURIAM.

Affirmed.

BOYER, C. J., concurs specially.

McCORD and MILLS, JJ., concur.

BOYER, Chief Judge

(specially concurring).

While I entirely concur in affirmance, there is one aspect of this case which in my view merits discussion.

In his challenge to the final judgment of dissolution entered by the trial court, appellant argues that the child support award was . excessive, primarily attacking the award on the basis of his alleged inability to pay. He testified that although in good health and able to work full time, he had a gross income from his sign-making business in 1971 of approximately $3,800, $3,900 in 1972, and $4,500 in 1973. The taxable income in those years was $1,100, $300 and $400, respectively. While we take judicial notice of our current recession, we also take judicial notice of the minimum wage requirements and the difficulty which employers have obtaining competent employees. Common laborers are scarce but, when available, they draw a greater salary than appellant has drawn in recent years. Though mentally competent and physically able to work, appellant has made no effort to obtain employment from which he could derive a reasonable livelihood. I do not mean to imply that a person should be required to work unusually long hours in order to earn an exorbitant annual income to support familial obligations. However, a mentally and physically fit adult does have an obligation to make reasonable efforts to earn a reasonable livelihood so that he may discharge his responsibilities. If his chosen profession or avocation does not furnish the vehicle he should resort to some other occupation if available. He should at least try!


text:
    The HARTFORD ACCIDENT AND INDEMNITY CO., a corporation, Appellant, v. Deborah MURPHY, Appellee.
    No. Y-391.
    District Court of Appeal of Florida, First District.
    Feb. 5, 1976.
    Rehearing Denied March 11, 1976.
    Richard T. Jones, Jones & Ritch, Gainesville, for appellant.
    William C. Gentry, Bedell, Bedell, Ditt-mar & Zehmer, Jacksonville, and Milton H. Baxley, II, Gainesville, for appellee.
   PER CURIAM.

In its briefs and oral argument appellant raises numerous important procedural problems inherent in determining equitable distribution of “PIP benefits” which were not presented nor reached in White v. Reserve Insurance Company, Fla.App. 1st, 1974, 299 So.2d 661; Unigard Insurance Company v. Davis, Fla.App. 1st, 1974, 299 So.2d 667. Reyes v. Banks, Fla. App. 4th, 1974, 292 So.2d 39 and other related cases. Unfortunately, none of the points here so presented were raised nor preserved at the trial court level and may not therefore be here resolved by us. We do, however, feel constrained to observe that there may well be a distinction between the evaluation of a “claim” and “loss”. Further, we would observe, that such an evaluation may not be accomplished in a vacuum and that such things as an injured person’s preexisting condition, questionable liability, venue (as related to prior experience as to size of jury verdicts) and the traditional concept of unpredictability of the outcome of a jury trial would all logically, together with numerous other considerations not necessary to be detailed here, be considered in making such an evaluation.

The only point properly preserved for our consideration on this appeal relates to the award of attorney’s fees, which award we find to have been proper under the circumstances of this case.

The order here appealed is therefore

Affirmed.

Appellee has also moved for attorneys’ fees incident to this appeal. That motion is granted and the trial court is directed, after appropriate proceedings, to fix and award same.

It is so ordered.

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


author: SMITH, Judge. BOYER, Chief Judge

text:
    Leon THOMAS and Randolph Wilbur Scott, Appellants, v. STATE of Florida, Appellee.
    No. Z-194.
    District Court of Appeal of Florida, First District.
    Feb. 5, 1976.
    Rehearing Denied March 11, 1976.
    Richard W. Ervin, III, Public Defender, and Louis G. Carres, Asst. Public Defender, for appellants.
    Robert L. Shevin, Atty. Gen., and Raymond L. Marky, Asst. Atty. Gen., for ap-pellee.
   SMITH, Judge.

The trial court sentenced appellants to imprisonment for one year and three years respectively on charges that they had in their possession a boat motor and gas tank which they knew or had reason to believe had been stolen. Sec. 814.03(2), F.S.1973. The trial judge imposed the sentences without first advising appellants that he intended not to grant them probation, as the State had recommended on their pleas of guilty pursuant to plea bargaining. The State takes the position that the plea bargain required only that the State recommend probation and that, the prosecutor having done so, the trial court was licensed to imprison appellants without notice and without explicitly affording appellants an opportunity to withdraw their pleas of guilty.

The trial court notified appellants at the time of their pleas, as he was obliged to do by Rule 3.171(c), R.Cr.P., that he was not bound by the plea bargain and that the court “will rescind its approval of such agreement” if the court found that “the ends of justice require a disposition other than that agreed on.” The trial judge promised that, in that event, “the defendants will have the opportunity to withdraw their plea of guilty, without prejudice.”

To say in these circumstances that all which was bargained for and agreed to was fulfilled by the prosecutor’s mere act of recommending probation would reduce the bargain to a trap or, at best, a formality. There could be no purpose in the court intending to agree only that the prosecutor might recommend probation. When the trial judge reached the conclusion that confinement terms were appropriate, appellants should have been affirmatively offered an opportunity to withdraw their pleas prior to imposition of sentence. Taylor v. State, 275 So.2d 307 (Fla.App. 4th, 1973); Bloom v. State, 290 So.2d 128 (Fla.App.3d, 1974); Barker v. State, 259 So.2d 200, 205 (Fla.App.2d, 1972). We note that the trial court entertained and expressed some question concerning his duty in these circumstances and, unfortunately, that the response of appellants’ trial counsel tended to reassure the judge concerning his power to imprison without further notice. It is regrettable that the trial judge was thus permitted to err, but appointed counsel’s misreading of Rule 3.-171(c) does not alter or waive its terms.

Reversed.

MILLS, J., concurs.

BOYER, C. J., dissents.

BOYER, Chief Judge

(dissents).

I respectfully dissent. I have no quarrel with the holdings in the cases cited in the majority opinion. Indeed, this Court has carefully chronicled the steps to be observed incident to plea bargaining. (See Kurlin v. State, Fla.App.1st 1974, 302 So. 2d 147; Brown v. State, Fla.App.1st 1974, 303 So.2d 89) However, neither our own prior opinions, nor those of our sister courts cited in the majority opinion, nor Rule 3.171, RCrP, require reversal in the case sub judice. A reading of the record in this case reveals that on no less than five occasions prior to imposition of sentence the learned trial judge carefully informed appellants and their counsel that the court was not bound and would not be bound by the state’s- recommended sentence. He said clearly and distinctly “I can sentence you to five years, I can put you on probation, but all this is in my discretion, and I am not bound by the plea bargaining of counsel: Do you understand that?” To which each of the defendants responded in the affirmative. Appellants entered their plea fully informed and with their eyes wide open. In my view they should not now be heard to complain.

I am not unmindful of the concluding sentence of Rule 3.171(c), RCrP, which provides that:

“ . . . Should such other factors make ultimate judicial concurrence impossible, any plea of guilty or nolo contendere entered based upon such agreement may thereafter be withdrawn.”

However, in my view there must be some motion, objection or proceeding to trigger application of that provision of the rule. A meticulous examination of the record in this case reveals not one word of objection on the part of appellants nor their counsel nor does the record reveal any motion, oral or written, that appellants’ pleas of guilty be withdrawn. It is therefore apparent that the learned trial judge, who the record reveals proceeded meticulously and cau-

tiously, is now being reversed by the majority notwithstanding that his actions complained of (which in my view were not in error) have never been called to his attention nor has he ever been afforded an opportunity to review nor reconsider.

I would affirm.