author: SCHEB, Judge.

text:
    Bert F. ERWIN, D.D.S., Petitioner, v. STATE of Florida, DEPARTMENT OF PROFESSIONAL AND OCCUPATIONAL REGULATION, DIVISION OF PROFESSIONS, FLORIDA STATE BOARD OF DENTISTRY, Respondent.
    No. 74-1494.
    District Court of Appeal of Florida, Second District.
    Oct. 8, 1975.
    Rehearings Denied Oct. 30, 1975.

      Lucius M. Dyal, Jr., of Shackleford, Farrior, Stallings & Evans, Tampa, for petitioner.
    Robert L. Shevin, Atty. Gen., Tallahassee, and James D. Whisenand and Donald D. Conn, Asst. Attys. Gen., Tallahassee, for respondent.
   SCHEB, Judge.

Petitioner, Bert F. Erwin, D.D.S., seeks a writ of certiorari to quash an order of the State Board of Dentistry revoking his license to practice.

On October 30, 1974, the Board served petitioner with six counts of alleged violations of Fla.Stat., Ch. 466, accompanied by a notice of a hearing scheduled for November 30, 1974. Upon hearing the petitioner was found guilty of charges 2(a) (habitually coming to his office in an intoxicated condition thus rendering him unfit for the practice of dentistry) and 2(b) (allowing a dental auxiliary to practice dentistry without supervision). The remaining four accusations were dismissed. The Board issued a final order on December 9, 1974, revoking petitioner’s license.

On appeal petitioner raises three points:

(1) Whether the alleged vagueness of charges and inadequate time to prepare his defense constituted a denial of due process of law ;■
(2) Whether there was substantial competent evidence to support the Board’s findings on charges 2(a) and 2(b); and,
(3) Whether, under the circumstances, the penalty of revocation constituted a gross abuse of the Board’s discretion.

We hold the petitioner was afforded due process of law and there was competent substantial evidence to support the findings of the Board; but, we grant certiorari and remand the cause for further consideration by the Board as to the penalty imposed.

We examine and discuss, in sequence, the points raised by appellant.

I. Whether petitioner was denied due process of law.

Petitioner was furnished a 30-day notice of charges against him as required by Fla.Stat. § 466.25(1). The length of. notice comports with administrative due process of law. See State ex rel. Munch v. Davis, 1940, 143 Fla. 236, 196 So. 491, which upheld, against a charge of denial of due process, a statutory requirement of at least 10 days notice on charges against a physician which subjected his license to revocation. While recognizing a 30-day notice ordinarily may be adequate, petitioner contends it was inadequate here since the accusations in paragraph 2(a) failed to allege specific times and occasions of intoxication and the charges in paragraph 2(b) did not state the acts of unlawful dentistry with particularity. Further, although petitioner did receive a copy of the Board’s investigation file, he complains of hot having been furnished with various witnesses’ statements, complaint letters, and answers to interrogatories until seven days prior to the hearing. Realistically, it is difficult to find any merit in the petitioner’s contention for three reasons :

(1) The accusations against petitioner were reasonably detailed.
(2) The key witness as to the charge of allowing unlawful practice of dentistry, Janet Horne Elliott, was named in the accusation; however, petitioner made no application to depose her as permitted under Fla.Stat. § 120.25.
(3) Petitioner made no request, at the conclusion of the hearing, to present any further witnesses or offer any additional evidence.

In Hickey v. Wells, Fla. 1956, 91 So.2d 206, the Supreme Court held that administrative due process before the Board of Dental Examiners requires specific accusations or procedures for disclosure, but does not require both. Due process of law in an administrative proceeding is a flexible concept, and sub judice that concept was fairly adapted to these proceedings. See Cafeteria Workers v. McElroy, 1961, 367 U.S. 886, 81 S.Ct. 1743, 6 L.Ed.2d 1230.

The Florida Legislature recently enacted a revised Administrative Procedure Act. Chapter 74-310, as amended by Ch. 75-191. The Act represents a further legislative codification of standards designed to afford due process in administrative proceedings. We note that Fla.Stat. § 120.57 as amended, while not effective at the time of the hearing sub judice provides “ . for a hearing after reasonable notice of not less than 14 days . . . .”

II. Whether there was substantial competent evidence to support the Board’s findings.

As to the charges in paragraph 2(a) concerning habitually coming to the office in an intoxicated condition:

Dorothy Scheppe, a dental hygienist with petitioner’s office from June 1971 to June 1973, testified that because of his drinking habits, the petitioner was unable to work from one-third to one-half of the time; that on at least three occasions she saw him come to the office while intoxicated. She described the petitioner as having exhibited the common characteristics of intoxication on these occasions; i. e., staggering, blood-shot eyes, slurring of speech, and flushed complexion. Rose Marie Guziolek, employed as a dental assistant from August 1971 to June 1972, testified that on at least two Mondays per month the petitioner came in with liquor on his breath and with a flushed face. Majorie K. Samulski, a dental assistant for petitioner from December 1972 to June 1973, who defined intoxication as a condition where one has consumed liquor to the point of affecting his behavior, testified petitioner would come in six or eight times a month in an intoxicated condition and would then work on patients. Still another assistant, Janet Horne Elliott, employed from August 1973 to April 1974, confirmed that when the petitioner would call in, his voice would frequently be slurred. Finally, June V. Sawyer, a receptionist, employed from August 1973 to August 1974, testified that every five or six weeks the petitioner would call and in a slurred voice would cancel his appointments.

Petitioner testified that he did not come to the office to see patients when he was intoxicated. Several satisfied patients, the dentist next door, a dental technician, and his present receptionist testified they never saw him come to the office intoxicated. Likewise, a currently employed dental hygienist who is presently engaged to petitioner, and the petitioner’s son testified the petitioner never came into the office intoxicated.

All witnesses were heard and observed by a Board composed of petitioner’s professional peers. While there were some conflicts in the testimony, it was for that Board and not this court to judge the credibility of the witnesses and the weight of the evidence. The test on certiorari is whether there was competent substantial evidence before the Board to sustain its findings. Our review convinces us the Board’s findings on the charges in 2(a) are supported by evidence which establishes a substantial basis of fact which reasonable minds would accept to support their findings. See De Groot v. Sheffield, Fla. 1957, 95 So.2d 912.

As to allowing a dental auxiliary to practice dentistry as alleged in paragraph 2(b):

Under 2(b) petitioner was charged with a violation of Fla.Stat. § 466.24(3) (e), which prohibits:

“Employing or permitting any unlicensed person or persons to perform any work in his office which would constitute the practice of dentistry or dental hygiene, except a dental auxiliary pursuant to the provisions of this chapter.”

The principal witness against the petitioner was Ms. Elliott. As an auxiliary, Ms. Elliott was only permitted to perform those duties allowed under Fla.Stat. § 466.-02(4):

“Pursuant to rules and regulations promulgated by the board, a dental auxiliary may, under supervision or direct supervision, as defined in section 466.-09(8) and (9), perform limited auxiliary dental services, procedures, and duties which do not involve or require the skill or knowledge of a dentist or dental hygienist and which are only preparatory or supplementary to any diagnosis, surgical procedure, or treatment of disease, pain, deformity, deficiency, injury, or physical condition of the human teeth or jaws; but a dental auxiliary cannot perform any procedure which requires professional judgment and skill, such as diagnosis and treatment planning, the cutting or removal of hard or soft tissue, the insertion of any prosthetic appliance in the mouth which when worn by the patient would come into direct contact with hard or soft tissue, or the removal of calculus deposits from the exposed surfaces of the teeth and gingival sulcus.”

Ms. Elliott installed temporary crowns and fillings, and when petitioner was away from the office she would receive calls from patients; and, upon her own diagnosis, would prescribe medication by direct calls to drug stores. Prescribing medication is a professional duty of a dentist; it is not a responsibility which can be delegated to his auxiliary. Allowing his assistant to perform this function was a clear violation of Fla.Stat. § 466.02(4). Without any formal training she administered nitrous oxide, an anesthetic, to dental patients. In fact, she commenced this practice the second week of her employment and administered this anesthetic to from 150 to 200 patients during her tenure with petitioner. Petitioner admitted she had administered nitrous oxide, but contended that this was done under his supervision. Irrespective of supervision, Fla.Stat. § 466.04 provides, with certain exceptions not relevant here, that the administration of an anesthetic constitutes the practice of dentistry. Permitting an auxiliary to perform this function, which requires professional skill and judgment, is clearly a violation of Fla.Stat. § 466.02(4). The practice of dentistry is reserved to qualified members of the profession and it is not delegable except in respect to those functions specified in the statute.

Again, it was for the Board to determine the credibility and weight to be placed upon the witnesses’ testimony. As a reviewing court we cannot substitute our judgment for that of the Board where, as here, the evidence is such that a reasonable man would accept it as adequate to support the conclusion that petitioner violated the statutory proscription against allowing an auxiliary to practice dentistry. Pauline v. Lee, Fla.App.2d 1962, 147 So.2d 359.

III. Whether revocation of the petitioner’s license constituted a gross abuse of the Board’s discretion.

Having found the petitioner in violation of Fla.Stat. Ch. 466, on the charges in paragraph 2(a) and 2(b) of the accusation, the Board, on each count, revoked the petitioner’s license to practice dentistry. Petitioner contends such penalty is too severe, pointing to the relative severity of the penalties imposed in some eleven other serious violations on which the Board has made decisions from 1963 to date.

Fla.Stat. § 466.24 provides that the Board:

“. . . shall suspend or revoke the li- • cense of any dentist . . . when it is established to its satisfaction that he” has committed one or more of the enumerated violations. '

Even where the findings of an administrative board are supported by the record, there is authority in this court to' direct changes in the penalty. Russ v. Pepper, Fla.App.3d 1966, 190 So.2d 783. However, where the penalty is imposed by a peer group of professionals and is within the allowable range, this court is reluctant to disturb it. True, petitioner was not directly given the opportunity to be heard in reference to a proposed penalty as is now provided by statute. The record, however, does not reveal any attempt on his part to be heard specifically as to the penalty, perhaps since the penalty was imposed immediately following the Board’s determination of guilt.

Concerning the contention of the severity of the penalty, we note Rule 21G-3.03(b), Department of Professional and Occupational Regulation, Division of Professions, Board of Dentistry, adopted pursuant to Fla.Stat. § 466.08(9), in pertinent part states:

“In all matters, reprimand and leniency will be considered for first offenders and/or minor infractions of the law.”

Obviously, the Board was not dealing with a minor infraction; however, we are advised the petitioner is a first offender. He argues the Board disregarded its own rule in handing down what he considers to be an extreme penalty.

Finally, we observe that while findings of an adjudicatory board generally precede its ultimate determination, here the reverse occurred. While the Board made its determination after the conclusion of the hearing on November 30, 1974, it was not until December 9, 1974, that it published its detailed findings and order. In so doing the Board made certain findings of fact not in conformity with the evidence. E. g., the Board found that Janet Horne Elliott testified she administered nitrous oxide “with respondent’s [petitioner herein] full knowledge” to patients “when respondent was not in -the office, and before the respondent attended to the patient.” Actually, the testimony shows she administered it when the petitioner was in the office, but before he attended to the patient. And, while she testified that she had given nitrous oxide to a hygienist when petitioner was out of his office, there was no testimony that this was with the petitioner’s knowledge. Irrespective of these errors in the findings, it appears the petitioner was guilty of violating the statute proscribing the unauthorized practice of dentistry. Nevertheless, the degree of his culpability is relevant in respect to the proper penalty to be imposed.

There are some erroneous findings of the Board relating to the serious charge of permitting unauthorized practice. Moreover, the record is silent as to whether the Board considered the first offender status of the petitioner. These factors, coupled with the petitioner’s avowed desire to be heard on the penalty, have caused us to conclude it comports with justice and administrative due process to remand the proceedings to the Board for purpose of the Board correcting its findings in the instances pointed out and to allow the petitioner to be heard as to the penalty. After correcting its findings, the Board shall then reconsider whether a penalty of revocation of license is appropriate and make its judgment accordingly.

Petition for Certiorari is granted and this cause is remanded for further proceedings consistent with this opinion.

McNULTY, C. J., ' and GRIMES, J., concur.

      . “(a) That between the dates of September 1, 1971 and September 1, 1974, said Dr. Bert F. Erwin did habitually and continually come into his office at 1710 Drew Street, Clearwater, Florida, in an inebriated and intoxicated condition thus rendering him unfit for the practice of dentistry; said Dr. Bert F. Erwin did on a routine basis, because of his intoxicated and inebriated condition both in and out of the office, have his office personnel completely cancel out his scheduled patient appointments for a week at a time, said acts being in violation of Chapter 466, and in particular Section 466.24(1) and (3) (a), Florida Statutes.

      (b) That said Dr. Bert F. Erwin did, during the period of time between September 1, 1973 and April 19, 1974, allow certain of his office personnel, to-wit: Jan Horne [Elliot], practice dentistry without supervision in violation of Chapter 466, Florida Statutes, and in particular Section 466.-24(3) (e) (n).’’

      . Fla.Stat. § 120.671(1) (b) 9 effective January 1, 1975, now specifically provides an opportunity for a party to respond to a penalty proposed by an administrative agency.

      . Fla.Stat. § 120.68(10) which also became effective January 1, 1975, specifically provides for remand if an agency’s action is based on an erroneous finding of fact.


source: Caselaw Access Project

author: McNULTY, Chief Judge.

license: Public Domain

text:
    AUTOMATIC TRUCK AND TRAILER WASH CENTERS, INC., Appellant, v. EASTAMP, INC., et al., Appellees.
    No. 74-1347.
    District Court of Appeal of Florida, Second District.
    Oct. 15, 1975.

      Richard A. Lazzara and Michael J. Freedman of Levine, Freedman Hirsch, Tampa, for appellant.
    Raymond C. Farfante, Jr., of Griffin, Gillis, Stead & Farfante, Tampa, for appel-lee, Eastamp, Inc.
    Harold- H. Griffin and Jan G. Halisky of Griffin & Uber, Clearwater, for appellees, Bryan Management Services, Inc. and W. E. Bryan.
   McNULTY, Chief Judge.

The novel question we answer this day is whether a secured creditor is entitled to the benefits of Article 6 of the Uniform Commercial Code (codified in this state as Chapter 676, F.S.1973) relating to bulk transfers, and thus is not limited solely to the remedies provided for in Article 9 thereof (Chapter 679, F.S.1973) relating to secured transactions. We answer the question in the affirmative.

Appellant, Automatic Truck and Trailer Wash Centers, Inc., sold an automatic truck and trailer washer to J.H.R. Management Co., Inc., which operated “301 Truck Stop,” and retained a $50,000 purchase money security interest therein. Subsequently, J.H.R. Management sold the truck stop to appellee Eastamp, Inc., but excluded from the sale the aforesaid automatic truck and trailer washer. Appellees Bryan and Bryan Management Services, Inc. acted as escrow agents in the transaction.

Significantly, all appellees knew that appellant was a creditor of J.H.R. Management but, notwithstanding, while the bulk transfer provisions of the U.C.C. were otherwise substantially complied with, no notice was given to appellant as is required by § 676.105, F.S.1973. This, ordinarily under the Code, would render the transfer “ineffective” as to protected “creditors” of the transferor.

Some time after selling the business, J.H.R. Management defaulted on its obligation to appellant and appellant foreclosed on its security interest in the washer pursuant to its rights as a secured creditor under Article 9 of the Code. Unfortunately, ever-popular automatic truck and trailer washers apparently having glutted the market, only $2,000 was realized at the foreclosure sale resulting in a deficiency of some $41,000, which appellant seeks herein jointly and severally to recover from appellees under the aforementioned “ineffective” transfer provisions of Article 6.

The trial court entered summary judgment in favor of appellees holding that appellant’s rights were exclusively governed by the provisions of Article 9 of the Code relating to secured creditors and that appellant was not entitled to the benefits provided for in Article 6 which, he held, protects only unsecured creditors. We disagree.

While, as indicated, there are no cases in Florida on the point, and a dearth of cases elsewhere, respected commentators suggest that the hulk transfer provisions of the Code are broad enough to cover both secured and unsecured creditors. To begin with, throughout the Code “creditors” are almost totally referred to by just such term and without qualification; and a creditor is defined in § 671.201, F.S.1973, the general definition section of the Code, as follows:

“Subject to additional definitions contained in the subsequent chapters of this code which are applicable to specific chapters or parts thereof, and unless the context otherwise requires, in this code:
* * Jft * * *
(12) ‘Creditor’ includes a general creditor, a secured creditor, a lien creditor and any representative of creditors, including an assignee for the benefit of creditors, a trustee in bankruptcy,, a receiver in equity and an executor or administrator of an insolvent debtor’s or assignor’s estate.” (Italics ours.)

Nothing in Article 6 alters this definition or “otherwise requires” a different interpretation.

Secondly, there is nothing in Article 9 of the Code to suggest that that article is the exclusive guardian of secured creditors. Moreover, we do not think that overlapping protection runs afoul of Code policy. As one commentary points out:

“In contrast to Article 9 of the Code, which is designed to protect the secured creditor against the destruction of his security by a third person, generally, the trustee in bankruptcy, Article 6 is designed to protect the unsecured creditor against a fraudulent transfer of the goods by the very debtor-customer to whom he has extended credit. On the one hand, a secured creditor’s interest against his debtor is protected at the time the creditor’s interest attaches in the debtor’s property, even though such, interest, if not perfected, may be lost against third parties. On the other hand, an unsecured creditor relies heavily on the net worth of his debtor as represented by his stock in trade. However, mindful of the fact that a secured creditor may have an unsecured deficiency, the Code includes the secured creditor in its broad scope of the definition of creditor and thereby assures him of an opportunity to participate in the benefits of the bulk transfer rules.” (Italic ours.)

Finally, as a sort of inverse negative pregnant, appellees point to no persuasive reason why secured creditors should not be protected under Article 6 of the Code.

We hold, therefore, that secured creditors are entitled to the benefits of ,Ch. 676, supra, the bulk transfer provisions of the U.O.C.

The sub-question to be answered now, which assumes an affirmative answer to the threshold question answered above, is whether the truck stop by J.H.R. Management Co. herein was indeed a business subject to the bulk transfer provisions of the Code. At oral argument appellees urged that, even assuming a secured creditor is protected under Article 6 of the Code, the transfer in this case involved a business primarily dealing in services, not in the sale of merchandise, and that therefore the provisions of Article 6 are inapplicable.

The point may be well taken, for § 676.-102(3), F.S.1973, provided that:

“The enterprises subject to this chapter are all those whose principal business is the sale of merchandise from stock, including those who manufacture what they sell.” (Italic ours.)

Additionally, the Third District recently held in De La Rosa v. Tropical Sandwiches, Inc. , that Article 6 of the Code excludes businesses principally dealing in “services.”

But the trial court in this case never reached that sub-question. The summary judgment herein was predicated on the erroneous conclusion of law that appellant could not avail itself of the provisions of Article 6. It was therefore entered prematurely. Obviously, now, a material issue of fact exists as to whether the sub-question should also be answered in the affirmative.

Accordingly, the summary judgment appealed from herein should be, and the same is hereby, reversed; and the cause is remanded for further proceedings not inconsistent herewith.

GRIMES and SCHEB, JJ., concur.

      . Section 676.105, F.S. 1973.

      . See J. White and R. Summers, Uniform Commercial Code. p. 656 (1972) ; 2 P. Coogan, W. Hogan, and D. Yagts, Secured, Transactions Under the Uniform Commercial Code § 22.01 (1966).

      . Id. Secured Transactions Under the Uniform Commercial Code § 22.01 (1966).

      . (Fla.App.3d, 1974), 298 So.2d 471. Section 676.102(3), F.S.1973, was amended in 1975, Ch. 75-216 Laws of Florida, expressly to include restaurants under the act even though they deal largely in services. De La Rosa, however, still correctly states the law that businesses principally dealing in services are not included in the act. Obviously, restaurants are now legislatively declared to be businesses principally dealing in sales of merchandise.


author: PER CURIAM. MAGER, Judge

text:
    STATE of Florida, Appellant, v. Debra Bryant HEIL, Appellee.
    No. 75-634.
    District Court of Appeal of Florida, Fourth District.
    Oct. 10, 1975.

      David H. Bludworth, State’s Atty., and Gerald A. McGill, Asst. State’s Atty., West Palm Beach, for appellant.
    Joseph K. Still, Jr., Law Offices of Michael T. Mallon, West Palm Beach, for ap-pellee.
   PER CURIAM.

Affirmed.

CROSS and OWEN, JJ., concur.

MAGER, J., dissents, with opinion.

MAGER, Judge

(dissenting):

In my opinion the trial court’s order granting defendant a new trial was in direct conflict with Rule 3.600, F.R.Cr.P., and hence was erroneous.

The order granting new trial set forth as the only basis therefor “that the Defendant was inadequately represented by Counsel because he (counsel) suffered from laryngitis at the time of trial.” Although the record of the testimony of the hearing on the motion for new trial reflects that the defense counsel was suffering from laryngitis there was no evidence in the record to reflect that the jury was unable to hear defense counsel or that the defendant did not otherwise receive a fair and impartial trial. Cf. Potts v. State, Fla.App.1971, 242 So.2d 729. At the very least the state should have been afforded the opportunity to a full cross-examination and rebuttal testimony on the issue of whether the jury was unable to hear defense counsel’s presentation.

Accordingly, I would reverse the order granting new trial and remand the cause back to the trial court for further proceedings not inconsistent herewith.


author: CROSS, Judge.

text:
    Peter E. SWINSCOE and Chloe M. Swinscoe, his wife, Appellants, v. STATE of Florida, DEPARTMENT OF REVENUE, Appellee.
    No. 75-483.
    District Court of Appeal of Florida, Fourth District.
    Oct. 3, 1975.

      Gaylord A. Wood, Jr., of Wood & Cohen, Fort Lauderdale, for appellants.
    Robert L. Shevin, Atty. Gen., and Stephen E. Mitchell, Asst. Atty. Gen., Tallahassee, for appellee.
   CROSS, Judge.

Appellants, Peter E. Swinscoe and Chloe M. Swinscoe, his wife, take an interlocutory appeal from an order entered by the trial court transferring venue to Leon County. We reverse.

Appellants, Peter E. Swinscoe and Chloe M. Swinscoe, his wife, sued appellee, Department of Revenue, in Broward County seeking to enjoin appellee from collecting certain documentary stamp taxes. The Department of Revenue filed a motion seeking a change of venue to Leon County where it “resides” and maintains its official headquarters. The trial court entered an order transferring the cause to Leon County. It is from this order that appellants take this interlocutory appeal.

The sole question presented for our determination on this appeal is whether the trial court erred transferring this action to Leon County.

Absent a waiver, a state agency may be sued in a county other than the si-tus of its official headquarters only when the official action complained of has, in fact, been or is being performed in the county wherein the suit is filed or when the threat of such action in said county is both real and imminent. Department of Revenue v. Arvida Corporation, 315 So.2d 235, Opinion filed July 2, 1975, Second District Court of Appeal Case; Department of Revenue v. First Federal Savings & Loan Association, 256 So.2d 524 (Fla.App.1971).

Turning to the instant case, appellants were informed on August 28, 1974, by written notice from the ■ Department of Revenue that a tax warrant and execution had been issued. Additionally, the notice further stated that “the tax warrant and execution are being delivered to [the] area supervisor . . . and he is instructed to withhold delivery of these documents to the Clerk of the Circuit Court and Sheriff until September 6, 1974. This extension of time is provided in the event you wish to make a voluntary payment to the area supervisor before he delivers the documents for execution.” The tax not having been paid by appellants, the tax warrant was recorded on December 13, 1974 in the official records of Broward County.

It is our opinion that the official action taken by the Department of Revenue in this case was of such a nature as to require that appellants be allowed to bring suit in Broward County against the Department of Revenue. The trial court, therefore, erred in transferring this action to Leon County.

Accordingly, the order of the trial court herein appealed is reversed, and the cause is remanded for further proceedings consistent with the views herein expressed.

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


author: OWEN, Judge.

text:
    RAY WALKER & ASSOCIATES, a foreign insurance agency doing business in the State of Florida, Appellant, v. JAY CAPONEY, INC., Appellee.
    No. 75-889.
    District Court of Appeal of Florida, Fourth District.
    Oct. 10, 1975.
    Frank E. Maloney, Jr., Fleming, O’Bryan & Fleming, Fort Lauderdale, for appellant.
    Sheldon H. Hoffman, Hollywood, for appellee.
   OWEN, Judge.

Defendant, a foreign insurance agency, was served with process under the provisions of Fla.Stat. § 48.193(1) (1973). This interlocutory appeal is from an order denying its motion to dismiss for lack of jurisdiction over the person.

Defendant delivered to the plaintiff in Florida on March 22, 1973 a policy of insurance issued by Lloyd’s of London on February 3, 1973. On August 19, 1973 certain property covered by the policy was stolen. When plaintiff attempted to collect under the policy for the loss, it was discovered that the policy did not provide coverage for theft. The complaint alleged that the defendant had breached its warranty and representation as to the coverage it could provide and had negligently failed to provide the proper policy, as a result of which conduct plaintiff had sustained monetary loss.

Though plaintiff’s loss did not occur until August 19, 1973, its cause of action accrued at the time defendant delivered the insurance policy on March 22, 1973. This date is prior to the effective date of Fla. Stat. § 48.193(1) (1973) under which statute plaintiff sought to perfect the service of process. The courts have held that this and similar statutes providing for constructive service may not be applied retroactively to causes of action which accrued prior to their effective dates. See, Gordon v. John Deere Company, 264 So.2d 419 (Fla.1972); Barton v. Keyes Company, 305 So. 2d 269 (3rd DCA Fla.1974); Marshall v. Johnson, 301 So.2d 134 (1st DCA Fla.1974).

The order appealed is reversed and this cause remanded for further proceedings consistent herewith.

CROSS and MAGER, JJ., concur.


author: PER CURIAM.

text:
    James Edward MILLS, Appellant, v. STATE of Florida, Appellee.
    No. 74-1185.
    District Court of Appeal of Florida, Fourth District.
    Oct. 3, 1975.
    Nelson E. Bailey of Bailey & Brown, West Palm Beach, for appellant.
    Robert L. Shevin, Atty. Gen., Tallahassee, and Anthony J. Golden, Asst. Atty. Gen., West Palm Beach, for appellee.
   PER CURIAM.

The factual matters involved in the criminal proceeding resulting in defendant’s conviction for grand larceny and the instant appeal are identical to those considered by this court in Jarriel v. State, 317 So.2d 141, Fourth District Court of Appeal, opinion filed August 8, 1975. In that case this court found that a statement made by defendant Jarriel during interrogation was the result of “direct or implied promises ... in violation of the basic tenet of law that a confessing defendant should be entirely free from the influence of hope or fear”. Accordingly and for those reasons set forth in Jarriel v. State, supra, the statement of defendant Mills should be suppressed.

Reversed and remanded.

CROSS, OWEN and MAGER, JJ., concur.


text:
    CARTER SAND COMPANY, INC., a corporation, Appellant (Plaintiff), v. BAYMEADOWS, INC., a corporation, et al., Appellees (Defendants).
    No. X-178.
    District Court of Appeal of Florida, First District.
    Oct. 7, 1975.

      O. O. McCollum, Jr., of Thames & Mc-Collum, Jacksonville, for appellant.
    John S. Duss, IV, of Ulmer, Murchison, Ashby & Ball, and John F. Fannin, of Mil-am & Wilbur, Jacksonville, for appellees.
   PER CURIAM.

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

A materialman who is in privity only with a subcontractor must give notice of furnishing materials and services to the owner before the subcontractor has been paid in full in order to participate in a progress or final payment. Crane Company v. Fine, 221 So.2d 145 (Fla. 1969).

Accordingly, the final judgment is affirmed.

MILLS, Acting C. J., and WADDELL, Tom, Jr., and MELVIN, Woodrow M., Associate Judges, concur.


text:
    Eli Edward JOHNSON, Appellant, v. STATE of Florida, Appellee.
    No. 74-1307.
    District Court of Appeal of Florida, Second District.
    Sept. 26, 1975.
    Horace A. Knowlton, III, Tampa, for appellant.
    Robert L. Shevin, Atty. Gen., Tallahassee, and Richard G. Pippinger, Asst. Atty. Gen., Tampa, for appellee.
   PER CURIAM.

Appellant filed his Notice of Appeal on November 5, 1974, from an order of the trial court which, although signed November 1, 1974, was not filed until November 26, 1974. Since the notice was filed untimely, this court is without jurisdiction to consider this appeal.

It is, therefore, ordered that this appeal be and it is hereby dismissed.

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


text:
    STATE of Florida, Petitioner, v. Joseph E. DeFILIPPO, d/b/a Woodlawn Memorials, Respondent.
    No. 75-563.
    District Court of Appeal of Florida, Fourth District.
    Oct. 3, 1975.

      Philip S. Shailer, State’s Atty., and Jon H. Gutmacher, Asst. State’s Atty., Fort Lauderdale, for petitioner.
    Steadman S. Stahl, Jr., of Varón, Stahl & Kay, Hollywood, for respondent.
   PER CURIAM.

The respondent was convicted of issuing a worthless check after a nonjury trial in the county court. On appeal the circuit court reversed the conviction finding that the petitioner did not meet its burden of proving the identity of the defendant beyond and to the exclusion of a reasonable doubt. Petitioner then filed a petition for certiorari in this court contending that the circuit court’s decision constituted a departure from the essential requirements of law. We agree.

Where a court sitting in its appellate capacity attempts to reweigh the evidence and substitute its judgment for that of the trier of fact or where such court misconceives the legal effect of the evidence so as to result in a wrong rule of law being applied, such action constitutes a departure from the essential requirements of law reviewable by certiorari. State Beverage Department v. Ernal, Inc., Fla.App. 1959, 115 So.2d 566; City of Miami v. Bell, Fla.App.1973, 281 So.2d 540. Although the evidence in the instant case was largely circumstantial, a review of the record reflects that such evidence was consistent with the guilt of the accused and inconsistent with every reasonable hypothesis of innocence. Duran v. State, Fla.App.1974, 301 So.2d 486; Williams v. State, Fla.App.1968, 206 So.2d 446; Amato v. State, Fla.App.1974, 296 So.2d 609. The circumstantial evidence created more than a mere suspicion that the accused committed the crime with which he was charged and excluded every reasonable hypothesis but that of guilt. Cf. Woitte v. United States, 9 Cir. 1927, 19 F.2d 506.

Accordingly, certiorari is granted; the order of the circuit court is quashed and the judgment of conviction and sentence of the county court is reinstated.

CROSS and MAGER, JJ., concur.

WALDEN, C. J., dissents without opinion.


text:
    STATE of Florida, Appellant, v. William C. BREWINGTON, Appellee.
    No. 74-1498.
    District Court of Appeal of Florida, Second District.
    Sept. 24, 1975.
    Robert L. Shevin, Atty. Gen., Tallahassee, and Mary Jo M. Gallay, Asst. Atty. Gen., Tampa, for appellant.
    Judge C. Luckey, Jr., Public Defender, Tampa, James A. Gardner, Public Defender, Sarasota, and E. C. Watkins, Jr., Asst. Public Defender, Tampa, for appellee.
   PER CURIAM.

The state appeals an order by the trial court suppressing a confession made by the defendant while in custody of the police. The record on appeal amply supports the findings of the trial judge that violations of RCrP 3.111 and 3.130 resulted in substantial prejudice to the rights of-the defendant; hence, the order of the trial court is affirmed.

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


author: WALDEN, Judge.

text:
    WINCAST ASSOCIATES, INC., Appellant, v. Lawrence J. HICKEY et al., Appellees.
    No. 75-735.
    District Court of Appeal of Florida, Fourth District.
    Oct. 3, 1975.

      Sanford N. Reinhard of Zinn & Rein-hard, Miami, for appellant.
    No appearance for appellees.
   WALDEN, Judge.

The trial court ordered cross-defendant Wincast Associates, Inc. to post with the Court a $50,000 cash or surety bond in favor of cross-claimant Percy Rosemurgy. We reverse and remand with respectful directions that Wincast Associates, Inc. be discharged from the obligation of filing this bond. The bond was designed to ensure recovery by Rosemurgy should he prevail in his claim that Wincast Associates, Inc., the owner of two rental complexes in Crystal Lake Subdivision, owed him certain recreational fees for facilities provided to Wincast in that subdivision. However, there was no proof of the existence of any extenuating circumstance or of any fund comprising the subject matter of the dispute. Such would be necessary to justify ordering a defendant to deposit money with the Court. In Brooks v. Galicia Steamship Co., Ltd., 237 So.2d 582 (3d DCA Fla.1970) the court found similar error:

“We find no procedure under the law authorizing a common law trial judge to order a deposit in the registry of the court upon an unsworn complaint [prior to answer], no testimony or evidence or other admissions indicating either the character of the monies ordered to be deposited or who has possession of them. To this extent, we find the trial judge departed from the essential requirements of the law in directing the deposit into the registry of the court.” (Emphasis supplied.) Id. at 583.

Although Rosemurgy claimed that rental payments to Wincast were identifiable funds in dispute, (i. e. the funds from which the recreational payments should be made), this is not acceptable. The recreational payments could be made from any source, and Rosemurgy had no direct claim to the rental payments. In 23 Am.Jur.2d Deposits in Court, § 2 (1965), it is stated:

“The authority conferred on a court to order a deposit of money or property does not apply if the money in the possession of the party is not the subject of the litigation, but rather its payment is an incident thereto, dependent on the judgment to be rendered in the action, as in the case of an action for redemption, specific performance, accounting, rescission, or the like.” Id. at 737.

Rosemurgy is seeking to have certain easements and covenants construed, which, if construed in his favor, would result in a money judgment to him, the payment being incident to the judgment rendered. See also 15 Fla.Jur., Funds and Deposits in Court, § 1 (1957):

“While there are various grounds which justify or require a payment into court of a fund of money in dispute; deposits generally either are made by a party who desires to be relieved of the burden of caring for a fund, or are required in order to preserve money during the pen-dency of a litigation.” Id. at 87-88.

Reversed and remanded, with directions.

CROSS and DOWNEY, JJ„ concur.


author: BOARDMAN, Judge.

text:
    Costello KING, Appellant, v. STATE of Florida, Appellee.
    No. 74-1319.
    District Court of Appeal of Florida, Second District.
    Oct. 3, 1975.
    James A. Gardner, Public Defender, Sarasota, and Harold H. Moore and Steven H. Denman, Asst. Public Defenders, Bradenton, for appellant.
    Robert L. Shevin, Atty. Gen., Tallahassee, and Davis G. Anderson, Jr., Asst. Atty. Gen., Tampa, for appellee.
   BOARDMAN, Judge.

Upon consideration of appellant’s motion, we granted him full appellate review under Baggett v. Wainwright, Fla.1969, 229 So.2d 239, of the three judgments and sentences entered in the Polk County Circuit Court in Cases #CF74-800, #CF74-.801, and # CF74-802.

Appellant pled nolo contendere to the three informations, each of which charged assault with intent to commit rape, extortion and kidnapping. The said offenses were alleged to have been committed upon three different victims. Appellant was adjudicated guilty and, pursuant to the plea bargain, was sentenced to serve ten years in the state prison on each information, the sentences to run concurrently. Being unable to ascertain the specific sentence imposed on each of the violations contained in each count of the three informations, we have in several prior cases held such sentences to be general and, therefore, invalid. Darden v. State, Fla.App.2d 1975, 306 So.2d 581; Haddon v. State, Fla.App.2d 1975, 307 So.2d 238; Long v. State, Fla.App.2d 1975, 310 So.2d 35; Farmer v. State, Fla.App.2d 1975, 315 So.2d 225.

We have considered the other points raised by appellant and find them to be without merit. Davis v. State, Fla.App.2d 1973, 277 So.2d 300; Williams v. State, Fla.App.2d 1974, 297 So.2d 67.

The judgments are affirmed; but, the causes are remanded for proper sentencing. The action may be taken without the appellant appearing before the court.

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


author: PER CURIAM. DOWNEY, Judge

text:
    The CITY OF TAMARAC, Appellant, v. LEADERSHIP HOUSING SYSTEMS, INC. and Simon Zunamon, as Trustee, Appellees.
    No. 74-1593.
    District Court of Appeal of Florida, Fourth District.
    Sept. 26, 1975.
    Rehearing Denied Oct. 27, 1975.
    Michael E. Zealy, City Atty., City of Ta-marac, Fort Lauderdale, and Myron H. Burnstein of Salter, Yeslow & Burnstein, Sp. Counsel for City of Tamarac, Hollywood, for appellant.
    Robert Orseck, of Podhurst, Orseck & Parks, Miami; Preddy, Haddad, Kutner & Hardy, and Emerson Alls worth, Fort Lau-derdale, for Appellee-Leadership Housing; and Deutsch, Deutsch, Goldberg & Young, Fort Lauderdale, for appellee-Simon Zuna-mon, as Trustee.
   PER CURIAM.

Affirmed.

CROSS and MAGER, JJ., concur.

DOWNEY, J., specially concurs.

DOWNEY, Judge

(specially concurring).

I concur in the decision affirming the order appealed from since the trial court found there had been no change in conditions since the judgment of April 13, 1973, which would adversely affect the health, safety, or welfare of the appellant or its citizens.


author: DOWNEY, Judge.

text:
    Doctor Ricardo E. del REAL, M.D., and Employers Fire Insurance Company, Petitioners, v. Thomas W. DAWSON et al., Respondents.
    No. 74-1479.
    District Court of Appeal of Florida, Fourth District.
    Oct. 3, 1975.

      Edna L. Caruso of Howell, Kirby, Montgomery, D’Aiuto & Dean, West Palm Beach, for petitioners.
    William R. Hussey, Fort Lauderdale, for respondents-Dawson.
   DOWNEY, Judge.

Doctor Ricardo E. del Real and his insurance carrier, defendants in a medical malpractice suit voluntarily dismissed by the plaintiff-respondents after several days of trial, seek review by petition for writ of certiorari the trial court’s refusal to tax as costs: the court reporter’s per diem for attendance at trial; expert witness fees for three physicians whose depositions were taken by petitioners prior to trial; copies of depositions of expert witness and nurses taken by respondents; and the expense of a trip to Chicago, Illinois, for petitioners’ counsel to attend a deposition taken by respondents.

Respondents contend that review of the order on a motion to tax costs is not reviewable by petition for writ of certiora-ri. We disagree. Chatlos v. City of Hallandale, Fla. 1969, 220 So.2d 353.

We have seriously considered petitioners’ argument that it was error for the trial court not to grant the various items of costs, particularly in view of the posture of the case when it was terminated and the fact that many of the items are ordinarily taxable. However, on the record presented to us petitioners have simply failed to demonstrate error. The taxation of costs is a matter traditionally within the discretion of the trial court, Cohn v. Florida National Bank at Orlando, Fla.App.1969, 223 So.2d 767, and for aught we know the trial judge may have had good grounds for exercising his discretion as he did.

The Petition for Writ of Certiorari is denied.

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


text:
    STATE of Florida, DEPARTMENT OF HEALTH AND REHABILITATIVE SERVICES, DIVISION OF VOCATIONAL REHABILITATION, Plaintiff, v. William NECKMAN, Trustee, Defendant.
    No. 75-1193.
    District Court of Appeal of Florida, Third District.
    Sept. 23, 1975.
    Rehearing Denied Oct. 29, 1975.
    James G. Mahorner, Tallahassee, for plaintiff.
    Joseph J. Gersten, Miami, for defendant.
    Before BARKDULL, C. J., and PEARSON and HENDRY, JJ.
   PER CURIAM.

The Honorable Sam I. Silver, Judge of the Circuit Court in and for the Eleventh Judicial Circuit, Dade County, Florida, has certified a question to this court, as provided under Rule 4.6, Florida Appellate Rules.

In support of the certification, the trial court stated the following facts :

On January 4, 1975, a State agency filed a declaratory judgment action against the lessor, William Neckman, Trustee, seeking to declare certain leases between the parties invalid. On February 5, 1975, in a separate mortgage foreclosure action involving the subject property herein, the trial court therein appointed Joseph J. Ger-sten as Receiver pendente lite for purpose of preserving the mortgaged property.. On February 7, 1975, William Neckman, Trustee, was served with a declaratory judgment suit filed on January 4, 1975. On May 5, 1975, a final judgment after default was entered against William Neckman, Trustee, declaring the leases invalid. On May 6, 1975, after receiving notice, the Receiver moved to vacate the final judgment on the ground that he was a necessary party. After notice and hearing, the trial court granted the Receiver’s motion to vacate and set aside the final judgment based upon a finding that:

“1. That the motion to vacate corrected final judgment is well taken;
“2. That the receiver is a necessary party-defendant to the within cause; * * *”
* *» ^ ^ ^

Thereupon, the State agency requested the question be certified. The Trial court then certified the following question for our determination :

“ * * * is the Receiver pendente lite appointed on a mortgage foreclosure case by the attached Order a necessary party in a suit to invalidate a lease on the mortgaged premises with standing to open up a final order entered after default against the owner of the receivership property declaring invalid a lease on such property where:
1. The order appointing Receiver pen-dente lite states he takes subject to the action against the owner?
2. The action had been filed prior to the order of appointment but was not served until several days thereafter?”
* sjs * * * *

The question certified has already been ruled upon by the trial court and is properly reviewable on appeal. As so succinctly stated by Justice Boyd in State v. Potter, Fla.1969, 224 So.2d 291:

* * * * sfi *
“[2] Rule 4.6, Florida Appellate Rules, is not a substitute for appeal. * * * This court has held that questions already ruled on below cannot be certified here. * * * We have also held that Rule 4.6 must be strictly construed in order to avoid encroachment on the full and proper exercise of jurisdiction by the trial judges. * * *”
******

Therefore, on the authority of State v. Potter, supra; Prigger v. Kingery, Fla.App.1962, 144 So.2d 323; Johnson v. Southeast Title and Insurance Company, Fla.App.1963, 148 So.2d 67; Oakford v. Oakford, Fla.App.1963, 176 So.2d 563; Boyer v. City of Orlando, Fla.1970, 232 So.2d 169, we are compelled to deny the certificate.


text:
    George DRAYTON, Appellant, v. STATE of Florida, Appellee.
    Nos. 75-359 and 75-360.
    District Court of Appeal of Florida, Second District.
    Sept. 17, 1975.
    Rehearing Denied Oct. 2, 1975.
    James A. Gardner, Public Defender, Sarasota, and Douglas A. Wallace, Asst. Public Defender, Bradenton, for appellant.
    Robert L. Shevin, Atty. Gen., Tallahassee, and William I. Munsey, Jr., Asst. Atty. Gen., Tampa, for appellee.
   BOARDMAN, Judge.

The appellant, George Drayton, has failed to demonstrate reversible error with regard to his convictions for assault with intent to commit rape and breaking and entering a dwelling house with intent to commit a felony, to wit: rape and committing an assault upon a person lawfully therein.

The only question before us is whether appellant’s convictions of said offenses are each a facet or phase of the same criminal transaction.

The assault was an essential element of both of said charges and was committed in connection with the attempted rape. Thus, the two offenses were facets of the same criminal act. Cf. Trousdale v. State, Fla. App. 2d, 1974, 287 So.2d 721.

Accordingly, the causes are remanded to the trial court to vacate the sentence imposed on the assault with intent to commit rape. The judgments are affirmed.

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


text:
    Robert Anthony YANETTA, Appellant, v. The STATE of Florida, Appellee.
    No. 75-182.
    District Court of Appeal of Florida, Third District.
    Sept. 23, 1975.

      Carling Stedman, Stephen L. Raskin, Miami, for appellant.
    Robert L. Shevin, Atty. Gen., and Lance R. Stelzer, Asst. Atty. Gen., for appellee.
    Before PEARSON, HAVERFIELD and NATHAN, JJ.
   PER CURIAM.

Robert Yanetta raises two issues on appeal from his conviction following a jury trial and sentence to five years in the state penitentiary on the charge of aggravated battery.

He claims as error that the prosecutor made several comments in closing argument which were prejudicial and grounds for a mistrial. The objection by Yanetta’s attorney was overruled and the motion for mistrial denied. From reading the record, including closing argument, we are of the opinion that the comments by the prosecutor were not so highly prejudicial as to require reversal. See Wilson v. State, Fla.App.1974, 305 So.2d 50, 52 and cases cited therein.

As his second point, Yanetta contends that the trial court erred in denying his motion for production of the victim’s FBI report sheet. The record reflects that the motion was made for the first time during trial, and that the court did not deny the request, but rather that the report sheet was found to be unavailable. A defendant is properly allowed discovery as to the criminal records of the State’s witnesses to the extent that the information is in the actual or constructive possession of the State, not limited to that in the physical possession of the State Attorney’s office, and including data obtainable from the FBI. State v. Coney, Fla.1973, 294 So.2d 82, 86, interpreting State v. Crawford Fla. 1972, 257 So.2d 898. However, a defendant should not be permitted to so employ the pretrial discovery procedures as to require the State Attorney to disclose to him information or documents which by the exercise of due diligence, are readily-available to him by subpoena or deposition. State v. Coney, Fla.App.1973, 272 So.2d 550, 553. Therefore, since demand for the FBI report sheet was not timely made, and since it was not available when it was demanded, no error has been shown.

Affirmed.


text:
    Manuel J. AQUILA et al., Appellants, v. Victoria KENNELLY, a minor, by and through her mother and natural guardian, Ruth Kennelly, Appellees.
    No. 75-228.
    District Court of Appeal of Florida, Third District.
    Oct. 14, 1975.
    Vernis & Bowling, Coconut Grove, for appellants.
    Welsh & Carroll, Horton, Perse & Ginsberg, Miami, for appellees.
    Before BARKDULL, C. J., and PEARSON and NATHAN, JJ.
   PER CURIAM.

Manuel J. Aquila, Maria Aquila and Manchester Insurance & Indemnity Company, defendants in the trial court, appeal from a directed verdict for the plaintiff on liability entered by the trial court at the close of all of the testimony and from a denial of defendants’ motion for new trial or in the alternative entry of a remittitur reducing the amount of damages.

This action arose from an automobile accident. The record reflects ample substantial evidence to support the jury verdict as to damages. Upton v. Hutchison, Fla. 1950, 46 So.2d 20. Defendants have not shown, from the facts in this case and the applicable law, reversible error by the court in the entry of the directed verdict on liability.

Affirmed.


text:
    Jan JACOBSON, Petitioner, v. Carl M. THIESSEN et al., Respondents.
    No. 75-621.
    District Court of Appeal of Florida, Second District.
    Oct. 15, 1975.

      Roland F. Cribbs, Tampa, for petitioner.
    Andrew D. Argintar, Asst. County Atty., and Stella Ferguson Thayer, of Macfar-lane, Ferguson, Allison & Kelly, Tampa, for respondents.
   SCHEB, Judge.

Petitioner seeks a writ of certiorari to review an order of the Department of Transportation entered April 11, 1975, based upon a hearing held on September 25, 1974, under the provisions of Ch. 330, Fla.Stat. (1973).

Petitioner filed his petition in this court pursuant to Fla.Stat. § 120.68, of the new Administrative Procedure Act, effective January 1, 1975, which provides for judicial review of an agency’s decision by petition in the District Court of Appeal in the appellate district where the agency maintains its headquarters or where the party resides. Review proceedings are to be conducted in accordance with the Florida Appellate Rules. Fla.Stat. § 120.72(2) also effective January 1, 1975, however, provides :

All administrative adjudicative proceedings begun prior to January 1, 1975, shall be continued to a conclusion under the provisions of the Florida Statutes, 1973, except that administrative adjudicatory proceedings which have not progressed to the stage of a hearing may, with the consent of all parties and the agency conducting the proceeding, be conducted in accordance with the provisions of this act as nearly as is feasible.

Since the adjudicatory proceedings sub judice were heard on September 25, 1974, jurisdiction for review of the order complained of is governed by Florida Statutes, 1973.

Although the former Administrative Procedure Act provided for review by certiorari in the District Court of Appeal, see Fla.Stat. § 120.31 (1973), we have held that this section must yield to a specific mode of review when provided in the statutes governing a particular agency. Arvida Corp. v. Sarasota, Fla.App.2d 1968, 213 So.2d 756; Charbonier v. Wynne, Fla.App.2d 1973, 282 So.2d 171.

There is a specific method of review provided for orders of the Department of Transportation under Ch. 330. Fla.Stat. § 330.32 (1973) provides in part:

Any person aggrieved by an order of the division or by the grant, denial or revocation of any approval, license or certificate may have the action of the division reviewed by the appropriate circuit court upon filing a petition for a writ of cer-tiorari within the time and in the manner provided by the Florida Appellate Rules.

Therefore, jurisdiction for the review being sought is properly in the Circuit Court, as provided by the Florida Statutes, 1973, which govern this proceeding.

Our jurisdiction having been invoked improvidently, this cause is transferred to the Circuit Court of the Thirteenth Judicial Circuit in and for Hillsborough County, in accordance with F.A.R. 2.1, Subd. a(S)(d).

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


text:
    Mary Alice MARKGRAF, Appellant, v. Wolfgang Herbert Albert MARKGRAF, Appellee.
    No. 74-793.
    District Court of Appeal of Florida, Second District.
    Oct. 3, 1975.
    Rehearing Denied Oct. 30, 1975.
    Anthony S. Battaglia and Michael L. Hastings of Parker, Battaglia, Parker, Ross & Stolba, St. Petersburg, for appellant.
    J. A. McClure, Jr., of McClure & Tur-ville, St. Petersburg, for appellee.
   PER CURIAM.

In this marriage dissolution proceeding appellant-wife appeals from that portion of the final judgment awarding her only rehabilitative alimony. We affirm.

A careful reading of the entire record herein persuades us that the court did not abuse its discretion in failing to award the wife permanent alimony. True it is, that because of the wife’s age and certain physical disabilities, there is some indication that she may be incapable of that degree of rehabilitation within the prescribed period sufficient to enable her to maintain the standard of living to which she had become accustomed and to which she may be entitled. If this fear materializes, however, she would still not be precluded from timely seeking within that rehabilitative period a modification of the decree relating to alimony as may be appropriate. We so held in the parallel case of Lee v. Lee.

In view whereof, the judgment appealed from should be, and the same hereby is, affirmed.

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

      . See, Lash v. Lash (Fla.App.2d, 1975), 307 So.2d 241.

      . (Fla.App.2d, 1975), 309 So.2d 26.


text:
    Miguel RECAREY, Jr., and Associated Doctors Hospital, Inc., a Florida Corporation, Appellants, v. Luke RADER and Alma Rader, his wife, et al., Appellees.
    Nos. 75-1465, 75-1494.
    District Court of Appeal of Florida, Third District.
    Oct. 14, 1975.

      Sibley, Giblin, Levenson & Ward, Male & Bloom, William T. Kruglak, II, Miami, for appellants.
    Adams, George, Wood, Lee & Schulte, and David L. Willing, Miami, Charles H. Snowden, Hialeah, Pallot, Stern, Proby & Adkins, Miami, for appellees.
    Before PEARSON, HENDRY and NATHAN, JJ.
   PER CURIAM.

Appellants, defendants below, bring this appeal from an order of the trial court, as amended, appointing a special receiver for appellant, Associated Doctors Hospital, Inc.

Appellees filed in the trial court their amended petiton for a writ of mandamus and other relief against appellants and other defendants not parties to the appeal. Appellees alleged that appellant Miguel Re-car ey, Jr., had abused his position as secretary-treasurer of appellant Associated Doctors Hospital, Inc., a Florida corporation, for his own enrichment and was guilty of mismanagement to the detriment of the interests of the Hospital and its stockholders. Both appellees are minority stockholders in the Hospital. It was further alleged that appellants voted at a stockholders’ meeting to sell the Hospital under such terms and conditions that would eliminate all of appellees’ equity as stockholders. Appellees demanded a writ of mandamus requiring that appellants produce the books and records of the corporation for inspection and copying, that an injunction without notice be entered restraining appellants from selling the Hospital, that an accounting be made, and that the court appoint a receiver to take charge of the assets and operations of the Hospital.

Subsequently, appellees filed a motion for the appointment of a receiver to take control of all of the books and records of the Hospital, to conserve its assets, and to continue the management of the operation of the Hospital. Appellees alleged that a genuine emergency existed regarding the continued profitable operation and management of the Hospital, and that the appointment of a receiver was necessary in order to prevent its financial collapse.

On August 22, 1975, a hearing was held on this motion and on the same day the trial court issued an order, amended by a subsequent order dated September 10, 1975, pursuant to a petition for instructions, which appointed a receiver for the Hospital and instructed him to take immediate and complete control of its books and records, to take possession of certain stock certificates owned by appellant Recarey and appellees, and granted the receiver the absolute authority in supervising the operation of the Hospital. From this order, as amended, appellants appeal.

Appellants contend that the trial court abused its discretion in appointing a receiver without a sufficient predicate in the pleadings, that the trial court abused its discretion in appointing a receiver when the pleadings and testimony did not reveal an emergency situation or a necessity for the appointment, and that the trial court erred in appointing a receiver at the initiation of appellees without requiring them to post an indemnification bond.

Appellees contend that the trial court properly exercised its discretion in appointing a special receiver for the Hospital, because the evidence established mismanagement and the impending insolvency of the Hospital, and the wrongful concealment of its records from appellees as stockholders.

The appointment of a receiver is not a matter of right, but is one resting in the sound discretion of the court, to be exercised or withheld, according to the circumstances and facts of each particular case. Nevertheless, basic limitations on the court’s equity jurisdiction and conditions are observed and the power of a court to appoint a receiver of a corporation or its property should be exercised with great caution to the end of preserving the property of the corporation and the rights and interests of its stockholders and others. Courts should not interfere by such appointment unless absolutely necessary to do complete justice. In various cases our courts have pointed out the reluctance with which such drastic relief is granted, and the broad rule emerges that a receiver should not be appointed unless, after a careful examination of all the facts in the case, the exigencies of the case demand it and no other protection to the applicants can be devised by the court. In other words, the appointment of receiver for a going corporation is a last-resort remedy, and should not be employed when another adequate remedy is available. Papazian v. Kulhanjian, Fla.1955, 78 So.2d 85; McAllister Hotel v. Schatzberg, Fla. 1949, 40 So.2d 201; Deauville Corporation v. Blount, 1946, 157 Fla. 322, 25 So.2d 812; Tampa Waterworks Co. v. Wood, 1929, 97 Fla. 493, 121 So. 789; Conlee Construction Company v. Krause, Fla.App.1966, 192 So.2d 330; 65 Am.Jur.2d, Receivers, § 59; and 27 Fla.Jur., Receivers §§ 7-8.

In light of the rules set forth above and after a careful reading of the record, all points in the briefs and arguments of counsel, it is our opinion that the trial court could have granted appropriate and effective relief to appellees without the necessity of appointing a receiver for the Hospital.

Therefore, for the reasons stated and the authorities cited, the order, as amended, of the trial court appealed is reversed and the cause is remanded for further proceedings not inconsistent with this opinion.

Reversed and remanded.


text:
    Abe SCHONFELD et al., Appellants, v. BARRICH TELEPHONE ANSWERING SERVICE, INC., et al., Appellees.
    No. 75-619.
    District Court of Appeal of Florida, Third District.
    Oct. 7, 1975.
    Corlett, Merritt, Killian, Mascaro & Sikes and Gerald E. Rosser, Miami, for appellants.
    Shutts & Bowen and Karl V. Hart, Miami, for appellees.
    Before PEARSON, HENDRY and HAVERFIELD, JJ.
   PER CURIAM.

Abe Schonfeld and Answer-Phone of Hollywood, Inc., have petitioned this court for the issuance of a writ of certiorari to review the trial court’s denial of their motion for a mandatory injunction pendente lite. At the time of oral argument, it appeared that the remedy of an interlocutory appeal was available and the certiorari should be denied under the rule as stated in Eristavi-Tchitcherine v. Miami Beach Federal Savings & Loan Association, 1944, 154 Fla. 100, 16 So.2d 730, at 735.

Thereupon, in proceeding to consider the merits of the cause, and now in treating the petition as an interlocutory appeal, we hold that no reversible error is shown. See Hines v. Dozer, Fla.App.1961, 134 So.2d 548.

Affirmed.


text:
    Lonnie L. BOYCE, Appellant, v. STATE of Florida, Appellee.
    No. 74-822.
    District Court of Appeal of Florida, Second District.
    Oct. 10, 1975.
    Rehearing Denied Oct. 29, 1975.
    James A. Gardner, Public Defender, Sarasota, and Harold H. Moore, Asst. Public Defender, and Steven H. Denman, Legal Intern, Bradenton, for appellant.
    Robert L. Shevin, Atty. Gen., Tallahassee, and Richard G. Pippinger, Asst. Atty. Gen., Tampa, for appellee.
   PER CURIAM.

Appellant filed his Notice of Appeal on July 10, 1974 from a judgment and sen-fence filed on June 5, 1974. Since the Notice of Appeal was untimely filed this court is without jurisdiction to consider this appeal. F.A.R. 6.2.

It is, therefore, ordered that this appeal be and it is hereby dismissed.

HOBSON, Acting C. J., and BOARD-MAN and SCHEB, JJ., concur.


text:
    Stephen W. TOOTHAKER, Petitioner, v. CLEVETRUST REALTY INVESTORS, Respondent.
    No. 75-1016.
    District Court of Appeal of Florida, Fourth District.
    Oct. 10, 1975.
    Philip Michael Cullen, III, of Fleming, O’Bryan & Fleming, Fort Lauderdale, for petitioner.
    Maurice M. Garcia, of Abrams, Anton, Robbins, Resnick & Schneider, P. A., Hollywood, for respondent.
   PER CURIAM.

Certiorari denied, without prejudice to further appellate review of the issues involved herein.

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


text:
    Elaine PAPICH, Appellant, v. STATE of Florida, Appellee.
    No. 74-1370.
    District Court of Appeal of Florida, Second District.
    Oct. 10, 1975.
    Raymond 0. Gross, Phillips, McFarland, Gould & Korones, Clearwater, for appellant.
    Robert L. Shevin, Atty. Gen., Tallahassee, and Robert J. Landry, Asst. Atty. Gen., Tampa, for appellee.
   PER CURIAM.

Affirmed. See State v. Dent, Fla.1975, 322 So.2d 543.

McNulty, c. j., and boardman and GRIMES, JJ., concur.


text:
    Dimitri R. SOKHOS, M.D. and Mrs. Dimitri R. Sokhos, husband and wife, Appellants, v. Dennis GOSTOMSKI, doing business as Gus’s Aviation, Appellee.
    No. 75-664.
    District Court of Appeal of Florida, Second District.
    Oct. 15, 1975.
    T. David Burns, Bartow, for appellants.
    Bruce W. Pitzer, Venice, for appellee.
   PER CURIAM.

It appearing that the order appealed from herein is a non-appealable interlocutory order, the above styled appeal be and the same is hereby dismissed.

BOARDMAN, Acting C. J., and GRIMES and SCHEB, JJ., concur.


text:
    ON TOP OF THE WORLD, INC., et al., Appellants, v. The ELMER J. KRAUSS ORGANIZATION, INC., Appellee.
    No. 74-1416.
    District Court of Appeal of Florida, Second District.
    Oct. 15, 1975.
    Fred L. Bryson and Richard H. Mal-chon, Jr., of Earle, Earle & Bryson, St. Petersburg, for appellants.
    Howard P. Ross, of Parker, Battaglia, Ross, Parker & Stolba, St. Petersburg, for appellee.
   PER CURIAM.

Upon review of the briefs and' after hearing oral argument in this cause, the points raised on appeal gave us considerable pause. After further review of the record, however, we are persuaded there has been no reversible error demonstrated by the appellant. Accordingly, the judgment of the trial court is affirmed.

BOARDMAN, A. C. J., and GRIMES and SCHEB, JJ., concur.


text:
    Albert R. STEWART and his wife, Alma L. Stewart, as Owners of Parcel 112.1, Appellants (Defendants), v. ALACHUA COUNTY, a Political Subdivision of the State of Florida, Appellee (Plaintiff).
    No. X-260.
    District Court of Appeal of Florida, First District.
    Oct. 8, 1975.
    L. William Graham of Dell, Graham, Willcox, Barber, Rappenecker, Ryals & Henderson, Gainesville, for appellants.
    Norm La Coe, Geoffrey B. Dobson and Winifred Sheridan Smallwood, Tallahassee, for appellee.
   PER CURIAM.

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

In determination of just compensation to be awarded for business damages in an eminent domain proceeding, jury’s verdict must be within range of evidence adduced at trial, and be an amount not lower than lowest nor higher than highest figure supported by the evidence. Sallas v. State Road Department of Florida, 220 So.2d 378 (Fla.App. 1st, 1969).

Accordingly, the final judgment is affirmed.

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


text:
    David J. SMITH, Appellant, v. The STATE of Florida, Appellee.
    No. 75-373.
    District Court of Appeal of Florida, Third District.
    Oct. 14, 1975.
    David J. Smith, in pro. per.
    Robert L. Shevin, Atty. Gen., for appel-lee.
    Before BARKDULL, C. J., and PEARSON and NATHAN, JJ.
   PER CURIAM.

This court, proceeding in the manner outlined and recommended by the Supreme Court of the United States in Anders v. California, 386 U.S. 738, 744, 87 S.Ct. 1396, 18 L.Ed.2d 493, having deferred ruling on a motion of the public defender to withdraw as counsel for the indigent defendant-appellant, and having furnished appellant with a copy of the public defender’s memorandum brief, and having allowed the appellant a reasonable specified time within which to raise any points that he chose in support of this appeal, and the appellant having failed to respond thereto, on consideration thereof upon full examination of the proceedings we conclude that the appeal is wholly frivolous. Whereupon, the public defender’s said motion to withdraw is granted, and the order or judgment appealed is hereby affirmed.


text:
    Morris Reuben EISENMAN, Appellant, v. STATE of Florida, Appellee.
    No. 74-1459.
    District Court of Appeal of Florida, Fourth District.
    Oct. 10, 1975.
    Rehearing Denied Nov. 4, 1975.
    Michael Sigman and Robert M. Segal, Orlando, for appellant.
    Robert L. Shevin, Atty. Gen., Tallahassee, and C. Marie Bernard, Asst. Atty. Gen., West Palm Beach, for appellee.
   PER CURIAM.

Following the trial court’s denial of a motion to suppress certain incriminating evidence, the defendant entered a plea of nolo contendere to a charge of unlawful possession of cocaine, was adjudicated guilty, sentenced, and then brought this appeal. A review of the record fails to reflect defendant’s specific reservation of his right to appeal the ruling on his motion to suppress. Accordingly, upon the authority of and for those reasons expressed in Jackson v. State, Fla.App. 1974, 294 So.2d 114, the appeal does not lie.

However, it might be gratuitously observed that had the court reached the merits of this, appeal, namely, whether the cocaine found in defendant’s briefcase as a result of an airport security inspection was obtained through an illegal search and seizure, the judgment of conviction and sentence would have been affirmed. The search in question was proper under the particular facts and circumstances of this case in light of recent decisions recognizing the validity of pre-flight procedures used at airports to prevent hijacking of aircraft. 14 A.L.R. Fed. 286-297; United States v. Skipmith, 5 Cir. 1973, 482 F.2d 1272.

Appeal dismissed.

MAGER and DOWNEY, JJ., and BER-ANEK, JOHN R., Associate Judge, concur.


text:
    PENSACOLA RESTAURANT SUPPLY COMPANY, a corporation, Appellant, v. BRYN MAWR CAMP RESORTS, INC., a Florida Corporation, Appellee.
    No. 75-79.
    District Court of Appeal of Florida, Fourth District.
    Oct. 10, 1975.
    Rehearing Denied Nov. 4, 1975.
    Robert N. Fryer, Jr., of Saunders, Curtis, Ginestra & Gore, Fort Lauderdale, for appellant.
    Robert J. O’Toole, Fort Lauderdale, for appellee.
   DOWNEY, Judge.

Appellant, whose principal and only place of business is in Escambia County, Florida, was sued by appellee in Broward County, Florida. This interlocutory appeal seeks review of an order denying appellant’s motion attacking the venue as improper.

It appears from the pleadings, affidavits and exhibits before the trial court that the subject matter of this suit was $7,535.65 paid by appellee to appellant pursuant to a security agreement dated October 4, 1972, wherein appellant was to fabricate some fixtures for appellee for use in a restaurant in St. Lucie County. The agreement of October 4, 1972, which was signed by appellee, expressly provided that all payments thereunder were to be made in Es-cambia County. This provision controlling venue cannot be thwarted by appellee’s suing for recovery upon the common count for money had and received.

The mere fact that in September 1973, the parties sought to negotiate a larger contract and failed does not detract from the fact that the money appellee seeks to have returned was paid pursuant to the agreement of October 4, 1972. Nor can ap-pellee set the venue in Broward County by vague allegations in its complaint indicating the parties were at all times simply negotiating in hopes of reaching a meeting of the minds and an eventual contract.

Accordingly, since appellant’s principal and only place of business is Escambia County, and since the agreement provided that payments were to be made there, the proper venue of this cause is Escambia County. ’

Reversed and remanded with directions to transfer the case to Escambia County for further proceedings.

OWEN, J., concurs.

CROSS, J., dissents without opinion.


author: SMITH, Judge.

text:
    Betty G. HILGENDORF, Appellant, v. Martha DENSON, Appellee.
    No. X-507.
    District Court of Appeal of Florida, First District.
    Oct. 8, 1975.
    Selig I. Goldin, of Goldin & Turner, Gainesville, Sam Spector and Cynthia Tun-nicliff, Tallahassee, for appellant.
    John F. Roscow, III and William N. Long, of Scruggs, Carmichael, Long, Tom-linson, Roscow, Pridgeon, Langdon & Helpling, Gainesville, for appellee.
   SMITH, Judge.

Hilgendorf appeals from a final judgment entered upon Denson’s claim for an accounting of the profits earned by Hil-gendorf using assets of the former partnership of the parties known as Gateway Realty. The trial court entered a money judgment awarding Denson one-half the profits earned by Hilgendorf from February 1973 to January 3, 1974, in Hilgen-dorf’s businesses organized and conducted as Gateway Realty of Gainesville, Inc. and Betty G. Hilgendorf Realtors, a proprietorship. The period for which the accounting was ordered was fixed by a finding made in an interlocutory order entitled “final judgment” entered September 27, 1974, that the partnership was terminated on January 3, 1974, by Hilgendorf notifying Denson of the termination.

The trial court erred in its critical finding that:

“In the fall of 1973, Defendant testified that she mentioned her desire to terminate the partnership to the Plaintiff and her desire to make the business a ‘family business’ with her husband as her partner to the exclusion of Plaintiff. Nothing further was said to the Plaintiff until January of 1974.
“Subsequent to the first conversation and before January, Defendant formed a corporation entitled ‘Gateway Realty of Gainesville, Inc.’ and on or around January 3, 1974, notified Plaintiff that she, Defendant, was terminating their partnership agreement.”

The evidence shows clearly that Hilgen-dorf advised Denson in January 1973, not January 3, 1974, of her purpose to dissolve the partnership and that the partnership was effectively dissolved no later than February 2, 1973, when at Hilgendorf’s request Denson left the offices which the partnership rented from Hilgendorf and her husband. Hilgendorf formed Gateway Realty of Gainesville, Inc. shortly before the dissolution of the partnership and that corporation briefly engaged in business until Denson filed this action on March 19, 1973, complaining of Hilgendorf’s use of a name derived from that of the dissolved partnership. Thereafter Hilgendorf did business as Betty Hilgendorf Realtors.

Denson seeks in this Court to sustain her participation in Hilgendorf’s profits for the eleven months ending January 3, 1974, on the ground that, under all the circumstances, that is an appropriate period for an accounting by Hilgendorf of postdissolution profits earned with partnership assets. See Annot., 55 A.L.R.2d 1391, 1424 (1957). While the interlocutory “final judgment” contains certain findings which are consistent with the theory of recovery now advanced in this Court, the relief granted by the trial court was squarely predicated on an erroneous determination that the partnership was not dissolved until January 3, 1974. We will not speculate that the trial court would have granted Denson the same relief on grounds that Hilgendorf used partnership assets to produce profits through January 3, 1974, and it would be premature for us to determine now the sufficiency of the evidence to support an identical award to Denson on those grounds.

The final judgment from which appeal is taken and the interlocutory “final judgment” entered September 27, 1974, are vacated. The case is remanded to the trial court for further proceedings consistent with our decision. Smith v. Smith, 118 So.2d 204 (Fla.1960); Davis v. Battle, 140 Fla. 778, 192 So. 607 (1940).

Reversed and remanded.

BOYER, C. J., and MILLS, J., concur.


author: HOBSON, Acting Chief Judge.

text:
    James LAISURE, Appellant, v. STATE of Florida, Appellee.
    No. 75-249.
    District Court of Appeal of Florida, Second District.
    Sept. 24, 1975.

      James A. Gardner, Public Defender, and Harold H. Moore, Asst. Public Defender, Bradenton, for appellant.
    Robert L. Shevin, Atty. Gen., Tallahassee, and Robert J. Landry, Asst. Atty. Gen., Tampa, for appellee.
   HOBSON, Acting Chief Judge.

We have carefully considered the record on appeal and the briefs of counsel and find that appellant has failed to demonstrate reversible error.

Although not raised on appeal, the written sentence order incorrectly imposed a general sentence on both offenses charged in a two-count information. We have held such general sentences to be invalid. Darden v. State, Fla.App.2d 1975, 306 So.2d 581; Haddon v. State, Fla.App.2d 1975, 307 So.2d 238; Long v. State, Fla.App.2d 1975, 310 So.2d 35; Farmer v. State, Fla.App.2d 1975, 315 So.2d 225.

At the sentencing proceedings the trial judge stated he could not sentence appellant on both counts, and actually sentenced him on Count I only.

The cause is remanded to the trial court for the purpose of entering a corrective sentence for sale of a controlled substance in violation of § 893.13 F.S. (1973). Since this was the actual intention of the trial judge, this action may be taken without the appellant appearing before the court.

The judgment is affirmed and the cause is remanded with directions.

BOARDMAN, J., and SCHWARTZ, ALAN R., Associate Judge, concur.


author: HOBSON, Judge.

text:
    AMERICAN FIRE AND CASUALTY COMPANY, Appellant, v. Joyce Ann DAWSON, a minor, by her mother and father and next friends, et al., Appellees.
    No. 74-877.
    District Court of Appeal of Florida, Second District.
    Oct. 15, 1975.

      Ira Wm. McCollum, Jr., of Pitts, Eu-banks, Ross & Rumberger, Orlando, for appellant.
    Joe R. Young, Jr., of Bradley, Johnson, Nelson, Young & Horton, Lake Wales, for appellees.
   HOBSON, Judge.

This appeal seeks review of the order of the trial court denying the motion of American Fire and Casualty Company to dismiss the suit for declaratory judgment as to it and determining that the phrase from § 627.727(1), Florida Statutes, as amended by Chapter 71-88, Laws of Florida 1971, which reads, “The coverage provided under this section shall be excess over but shall not duplicate the benefits available to an insured . . . under any . . . automobile liability . coverages . . . ” means that if an insured’s damages exceed the coverage available under another liability insurance policy (tort-feasor’s), then the insured’s own uninsured motorist’s coverage would be available as “excess over” to the extent the insured’s damages are in excess of the tort-feasor’s liability coverage, or in other words, the said phrase made uninsured motorist’s coverage “under-insured motorist’s” coverage.

The same identical question was considered in Summers v. Jackson, Fla.App.4th 1975, 307 So.2d 235. The Summers case was not published at the time the eminent trial judge in the case sub judice entered his order. It was held in Summers as follows :

“Finally, appellants’ reliance upon § 627.727(1), F.S.1971, to the effect that the coverage provided under that section shall be excess over but shall not duplicate other benefits such as any automobile liability coverage is misplaced. We construe that provision to mean that an injured party’s uninsured motorist coverage is to be excess over but shall not duplicate the injured party’s personal injury protection benefits, medical payments, etc., contained in said party’s policy. But in all events such excess coverage provision only comes into play when the tortfeasor is driving an uninsured motor vehicle. The tortfeasor here was driving a motor vehicle which at the time of the collision was an insured motor vehicle.”

See also Lange v. State Farm Mutual Automobile Insurance Company, Fla.App. 1st 1974, 300 So.2d 68.

Accordingly, the order appealed is

Reversed.

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


author: McNULTY, Chief Judge..

text:
    T. K. BUILDERS, INC., a Florida Corporation, Appellant, v. EXCHANGE BANK OF CENTRAL FLORIDA, a Florida Corporation, Appellee.
    No. 74-1335.
    District Court of Appeal of Florida, Second District.
    Oct. 15, 1975.

      Dale B. Willingham of Nettleton & Wil-lingham, Haines City, for appellant.
    R. Scott Bunn of Straughn, Sharit, Bunn & Chilton, Winter Haven, for appel-lee.
   McNULTY, Chief Judge..

Appellant, T. K. Builders, Inc., appeals from an adverse summary judgment. We reverse.

The facts established by or inferred from depositions filed on behalf of appellant, which must be taken as true in the present posture of the case, are these. On October 24, 1973, D. D. Taylor and Clarence Kelly opened an account with appellee bank in the name of T. K. Builders. Prior thereto Taylor had talked with the bank president telling him the account would be a corporate and not a personal account. The account was given the number of 008796 which denotes a commercial account (the first two zeros being the bank’s symbol indicating commercial). Additionally, a box on the face of the signature card was checked which indicated the account was a “special” account, i. e., “INDIVIDUAL OR FIRM,” rather than a “regular” account. Finally, though appellant was only a de facto corporation on or about that time, it became de jure on November 19, 1973.

On December 20, 1973, $4,063.07 was debited against that account by the bank and set-off against a personal loan owed by Taylor to the bank. Upon notification thereof, Kelly deposited an additional $17,500 in the account upon reassurance by the bank employees that there would be no further such charge made on the firm account. Notwithstanding, on Febrary 12, 1974, the bank again debited the account for an additional $5,181.37 and applied it to another personal debt owed by Taylor to the bank. This suit followed to recover all monies set-off. The court ultimately entered the summary judgment appealed from herein finding solely that:

“[Pjlaintiff [T. K. Builders, Inc.] did not adopt a corporate resolution establishing the bank account in question as a corporate account until February 20, 1974, and that prior to that date the account in question was carried in the names of the principals of T. K. Builders, Inc., namely, D. D. Taylor and Clarence Kelly, without qualification on the signature card signed by them that withdrawals be honored only upon the signature of both individuals. It further affirmatively appears from the deposition of D. D. Taylor that checks were drawn and paid over only one signature, that is, of Taylor or Kelly so that Taylor and Kelly recognized and acted upon the single signature procedure.”

Even if these findings are correct, there nevertheless still appears to exist a genuine material issue of fact as to whether the account was indeed a corporate account all along, whether the bank knew or should have known it if it were and, additionally, the correlative issue of whether Taylor and Kelly were merely signatories authorized by the corporation to draw on that account.

Appellant further points out, and the fact is supported in a deposition herein, that the funds deposited in the account were “construction draws,” which, it says, are really “monies of a third party.” It contends the bank knew or should have known such fact and that, consequently, it was not legally empowered to apply or set-off those funds against Taylor’s obligations. They cite 4715 Realty Corporation v. Central Bank & Trust Company as authority for this contention. It is not necessary to decide now the validity of the contention that “construction draws” are actually monies of “third parties” within the contemplation of 4715 Realty, supra. But if it be a valid one there obviously are existing material issues of fact relating at least to scienter on the part of the bank which should also be determined at trial.

Finally appellant contends that even if the bank’s contention is correct, that is to say that the account was in the name of the individuals involved, the bank knew or should have known that they were “partners” in the building business and that therefore the bank’s actions were wrong because a joint partnership account cannot be debited to pay an individual debt of one of the depositors. The bank counters by arguing that while this may be the ordinary rule, it may nevertheless be altered by contract; and the signature card herein contains the following provision:

“This bank is authorized to apply this account . . . toward the payment of any indebtedness due this bank from the depositor or depositors, or either of them, whether the debt is several and this account is joint, or debt is joint and the account is several.”

Assuming the bank’s legal position to be correct on this point, there is still a patent material issue of fact, inherent in the main issue herein, as to whether the account is indeed a joint or several individual account or is solely a corporate account.

It appearing, therefore, that the summary judgment was improper herein, the judgment appealed from should be, and it is hereby, reversed; and the cause is remanded for further proceedings not inconsistent herewith.

BOARDMAN and SCHEB, TT., concur.

      . (Fla.App.3d, 1974), 301 So.2d 792.


text:
    James Lee ZIMMERMAN, Appellant, v. STATE of Florida, Appellee.
    No. 74-1164.
    District Court of Appeal of Florida, Second District.
    Oct. 17, 1975.

      James A. Gardner, Public Defender, Sarasota, and Ellen Condon, Asst. Public Defender, Tampa, for appellant.
    Robert L. Shevin, Atty. Gen., Tallahassee, and Charles Corees, Jr., Asst. Atty. Gen., Tampa, for appellee.
   PER CURIAM.

Zimmerman pled guilty to the charge of “crime against nature,” Fla.Stat. § 800.01 (1973) (repealed). On February 25, 1972, he was adjudicated guilty and placed on five years probation. He now appeals, challenging the legality of the sentence imposed when that probation was later revoked. Although Zimmerman neither appealed his initial conviction nor argues the issue on this appeal, we believe his conviction is void because it was entered well after the sodomy statute was declared unconstitutionally vague. Franklin v. State, Fla.1971, 257 So.2d 21. Because he could have at most been convicted of the misdemeanor of an “unnatural and lascivious” act, Franklin, supra, and since our records indicate he has already served the six-month maximum sentence which could have been imposed for that crime which was committed in 1969, we remand with instructions to discharge the defendant and to reduce his judgment of guilt to the misdemeanor offense.

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

      . Fla.Stat. § 800.02 (1969).


text:
    NAPLES FRUIT & VEGETABLE COMPANY, a Florida Corporation, Appellant, v. David C. TOWNSEND, Appellee.
    No. 74-1394.
    District Court of Appeal of Florida, Second District.
    Sept. 19, 1975.

      Lawrence D. Martin, Naples, for appellant.
    Michael R. N. McDonnell, Brown, Smith, Young & Pelham, Tallahassee, for appellee.
   BOARDMAN, Judge.

This is appellant’s/defendant’s second appeal, following the second trial of this cause, which was held pursuant to our remand for a new trial (Naples Fruit & Vegetable Co. v. Townsend, Fla.App.2d, 1973, 276 So.2d 222, cert. den. Fla. 1973, 281 So.2d 214). In the prior trial, final judgment was entered in favor of appellee/plaintiff, awarding him damages in the amount of $9,915.56. On remand, the parties stipulated to rely on the same testimony that had been offered by them in the prior trial. In due course, the trial court entered final judgment in favor of appellee and against the appellant in the amount of $9,919.56.

The material facts are set out in our prior opinion and we see no reason to recite them here. We have heard oral argument, reviewed the record and given full consideration to the applicable law set out in the briefs filed by the parties and hold that there is substantial competent evidence in the record to support the ruling of the trial court. It should be left undisturbed.

We, therefore, overrule our decision rendered in the prior appeal. In view of the fact that the trial court’s ruling in said case was neither contrary to the manifest weight of the evidence, nor clearly erroneous, it was inappropriate for this court to have substituted its judgment for the judgment of the trial court. Affirmed.

McNULTY, C. j., and SCHWARTZ, ALAN R., Associate Judge, concur.


text:
    Dorothy H. FOSTER, Appellant, v. Ralph GRECO and William D. Foster, Appellees.
    No. 75-585.
    District Court of Appeal of Florida, Fourth District.
    Oct. 10, 1975.

      T. Richard Hagin, of Getzen & Hagm, Bushnell, for appellant.
    No appearance for appellees.
   DOWNEY, Judge.

This is an interlocutory appeal from an order denying appellant’s motion for change of venue.

Appellee Ralph Greco sued appellant and her husband in Broward County, Florida upon a promissory note. The unsworn complaint alleged that appellants executed and delivered the note in Broward County. Appellant’s sworn motion for change of venue stated that appellant was currently a resident of Sumter County and that she signed the unsecured promissory note in Sumter County. Appellee Ralph Greco responded with an affidavit which in pertinent part stated that he resided in Bro-ward County and that the note was payable in Broward County.

The trial court denied the motion for change of venue citing Gorman v. Royal American Construction Company, Inc., Fla.App.1971, 247 So.2d 66.

If the contract out of which this suit arose were one other than upon an unsecured promissory note the trial court would have been correct in concluding that the venue as laid in Broward County was proper because payment was to be made in Broward County. Section 47.011 F.S.1973, Croker v. Powell, 115 Fla. 733, 156 So. 146 (1934); Baruch v. W. B. Haggerty, Inc., 137 Fla. 799, 188 So. 797 (1939).

However, we are here dealing with an unsecured promissory note so that the question of venue is controlled not by § 47.011, supra, but by § 47.061 F.S.1973. That section provides, inter alia, that suits on unsecured promissory notes shall be brought only in the county in which such notes were signed by the maker or in which the maker resides. The proof here is that the note was signed in Sumter County and appellant resides in Sumter County. Thus, Sumter County' is the proper venue for this suit.

In our judgment the trial court’s reliance upon Gorman v. Royal American Construction Company, Inc., supra, is misplaced. This case is controlled by Woodley Lane, Inc. v. Nolen, Fla.App.1962, 147 So.2d 569.

The order appealed from is reversed and the cause is remanded with instructions to transfer the case to Sumter County.

Reversed and remanded.

OWEN and MAGER, TJ., concur.


text:
    Frankie CLEMENTS, Appellant, v. The STATE of Florida, Appellee.
    No. 74-1625.
    District Court of Appeal of Florida, Third District.
    Oct. 14, 1975.

      Frankie Clements, in pro. per.
    Robert L. Shevin, Atty. Gen., and Lance R. Stelzer, Asst. Atty. Gen., for appellee.
    Before BARKDULL, C. J., and HAV-ERFIELD and NATHAN, JJ.
   PER CURIAM.

Frankie Clements was tried by a jury, convicted of murder in the first degree and sentenced on June 23, 1973, to life imprisonment in the state penitentiary. At trial he was represented by a special assistant public defender. Clements’ conviction was affirmed on appeal. Clements v. State, Fla.App.1973, 284 So.2d 700. On his appeal he was represented by counsel. On October 25, 1974, the trial court denied Clements’ motion to vacate judgment and sentence pursuant to Rule 3.850, RCrP, 34 F.S.A. On Clements’ appeal from the trial court’s order denying the motion pursuant to the Rule, this court temporarily relinquished jurisdiction to the trial court for the appointment of counsel in the event of Clements’ insolvency. Counsel having been appointed by the trial court, this appeal ensued.

Clements contends that he was prejudiced by being denied counsel at his preliminary hearing. Assuming that he was without counsel at the preliminary hearing, the record does not reflect Clements suffered any prejudice. If Clements was prejudiced at the preliminary hearing, this ground should have been raised on his direct appeal. Relief from a judgment of conviction under Rule 3.850 is not proper where the ground raised was presented on appeal or was properly presentable thereon. Reinard v. State, Fla.App.1972, 267 So.2d 88; Koedatich v. State, Fla.App.1974, 287 So.2d 738; Jenkins v. State, Fla.App.1972, 267 So.2d 886.

Affirmed.