text:
    Carlos R. AMAGO and Nimia A. Amago, his wife, Appellants, v. CUBAN CLINIC ASSOCIATION OF HIALEAH, d/b/a Clinica Association Cubana, Appellee.
    No. 76-1005.
    District Court of Appeal of Florida, Third District.
    May 3, 1977.
    Rehearing Denied June 1, 1977.
    Anthony Dieguez, Hialeah, for appellants.
    Turner, Hendrick, Guilford, Goldstein & McDonald and S. Alan Stanley, Coral Gables, for appellee.

      Before PEARSON, HAVERFIELD and HUBBART, JJ.
   PEARSON, Judge.

The plaintiffs appeal a summary final judgment for defendant entered in an action for recovery of hospital benefits claimed to be due them under defendant clinic’s Certificate of Inpatient Care to Subscriber. The defendant is a health maintenance organization licensed by the State of Florida under Part II of Chapter 641, Florida Statutes (1973).

The summary judgment was predicated upon the trial court’s determination that any recovery was barred by plaintiffs’ failure to comply with a condition precedent for recovery. The certificate provided as follows:

“The Association will assume and pay the hospital of the Association 100% of all charges incurred by the Subscriber while confined in said hospital. The Association will pay all expenses incurred by the Subscriber for surgical and doctors expenses, only as long as the Subscriber uses the services of the doctors and surgeons in the staff of the Association. If a doctor is brought in by the Subscriber that is not an approved doctor of the staff of the Association, the Association will not have any liability for that particular claim.”

There is no issue as to the fact that on September 5, 1974, Carlos Amago presented his sick wife at 10:00 p.m. in the evening at the clinic where she was diagnosed as being dangerously ill of a communicable disease. He was requested to return the next morning for a letter of admission from appellee to an approved hospital. Further, it appears without controversy that at approximately 2:00 a.m. the same night the wife was so seriously ill that the husband called an ambulance and was advised by ambulance attendants that unless the wife was immediately hospitalized she would die. The wife was taken to a non-participating hospital. The evidence viewed in the light most favorable to the party moved against, that is, the plaintiff, is that the husband returned at 9:00 a.m. the next morning and was still unable to get a certificate.

Under these conditions and applying the rule that the burden of proving the absence of a genuine issue of material fact is upon the moving party, we hold that there is a genuine issue of material fact as to whether the defendant is liable for all or some part of plaintiffs’ medical expenses incurred as a result of defendant’s admitted failure to provide a letter of admission to a participating hospital. Accordingly, the summary judgment for the defendant is reversed and the cause is remanded for further proceedings in accordance with this opinion.

Reversed and remanded.


source: Caselaw Access Project

author: PEARSON, Judge.

license: Public Domain

text:
    Alina VALLENILLA, Appellant, v. Andres E. R. DELMAS et al., Appellees.
    No. 76-1313.
    District Court of Appeal of Florida, Third District.
    May 3, 1977.
    Rehearing Denied June 3, 1977.

      Guillermo A. Ruiz, St. Petersburg, for appellant.
    Marlow, Mitzel, Ortmayer & Shofi and Fredricka G. Smith, Miami, for appellees.
    Before HENDRY, C. J., and PEARSON and HUBBART, JJ.
   PEARSON, Judge.

The plaintiff appeals a summary judgment dismissing her complaint for damages received in an automobile collision. Although there is no indication of the grounds of the summary judgment, the only possible ground is that advanced by the defendants, that being that the plaintiff is barred by the Florida Automobile Reparations Reform Act because it affirmatively appears without issue that her injuries were not permanent in nature and did not exceed $1,000.

We hold that a genuine issue of material fact appears as to this issue. The depositions of two treating doctors were taken and while permanent injury does not affirmatively appear in either deposition, neither is sufficient to foreclose the possibility of permanent injury. In each case, the doctor simply testified that he expected complete recovery.

The summary judgment appealed is reversed and the cause is remanded for further proceedings. See Graff v. McNeil, 322 So.2d 40 (Fla. 1st DCA 1975). See also Harrison v. McCourtney, 148 So.2d 53 (Fla. 2d DCA 1963).

Reversed and remanded.


author: PER CURIAM.

text:
    Mallory HORTON and Samuel Hannon, Appellants, v. Robert A. KOPPEN, as successor personal representative of the Estate of Alek G. Lunga, Deceased, Appellee.
    No. 76-1643.
    District Court of Appeal of Florida, Third District.
    May 3, 1977.
    Rehearing Denied June 1, 1977.
    Horton, Perse & Ginsberg; Samuel J. Hannon, Miami, for appellants.
    Koppen & Watkins and Faith K. Stalnaker, Miami, for appellee.
    Before PEARSON, HAVERFIELD and HUBBART, JJ.
   PER CURIAM.

Affirmed. See: In re Estate of Lunga (Lunga v. Horton), 322 So.2d 560 (Fla. 3d DCA 1975).


author: ALDERMAN, Judge.

text:
    Arthur Lee COLEMAN, Appellant, v. STATE of Florida, Appellee.
    No. 76-797.
    District Court of Appeal of Florida, Fourth District.
    May 6, 1977.
    Rehearing Denied June 6, 1977.

      Richard E. Mandell, of Law Offices of Michael Sigman, Orlando, for appellant.
    Robert L. Shevin, Atty. Gen., Tallahassee, and Paul H. Zacks, Asst. Atty. Gen., West Palm Beach, for appellee.
   ALDERMAN, Judge.

This is a criminal appeal in which the defendant seeks reversal of his conviction for violation of Section 790.23, Florida Statutes. The primary issue is whether self-defense is a viable defense to the offense of possession of a firearm by a convicted felon. We hold that it is not and affirm.

The State proved that the defendant was a convicted felon and that he had possession of a firearm. In response, the defendant sought to establish that: he had been awakened by neighbors at his home and had been told that his place of business was being broken into; he left his home armed with a pistol; when he arrived at his place of business he encountered a burglar who attacked him with a crowbar; he shot the burglar in self-defense, and when the police arrived he voluntarily surrendered the pistol to them. The trial court denied the proffer and would not allow the defendant to show that he shot the burglar in self-defense.

The trial court’s decision was based on Dardy v. State, 324 So.2d 178 (Fla. 1st DCA 1975), wherein the appellate court said: “Self defense is not a viable defense to the offense of possession of a firearm by a convicted felon.” The defendant correctly points out that this statement in Dardy is dicta. The issue, however, is squarely presented to us in this appeal and we hold that self-defense is not a viable defense to the offense of possession of a firearm by a convicted felon.

Evidence justifying the defendant’s use of the firearm would be irrelevant and immaterial. The defendant is not charged with shooting the burglar; he is charged, as a convicted felon, with the unlawful possession of a firearm. The statute makes it a crime for a convicted felon to possess a firearm. There is no exception made for the convicted felon who believes he may need a firearm for self-defense. The defendant violated the statute by being, in possession of a firearm. His subsequent use of the firearm in self-defense does not excuse or justify his initial violation of the statute. We hold that the trial court correctly disallowed the proffered testimony.

We have also considered the other point raised by the defendant on this appeal and find it to be without merit.

AFFIRMED.

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

      . Section 790.23, Florida Statutes (1975), provides:
      (1) It is unlawful for any person who has been convicted of a felony in the courts of this state or of a crime against the United States which is designated as a felony or convicted of an offense in any other state, territory, or country punishable by imprisonment for a term exceeding 1 year to own or to have in his care, custody, possession, or control any firearm or to carry a concealed weapon, including all tear gas guns and chemical weapons or devices.
      (2) This section shall not apply to a person convicted of a felony whose civil rights have been restored.
      (3) Any person convicted of violating this section is guilty of a felony of the second degree, punishable as provided in § 775.082, § 775.083, or § 775.084.


text:
    Richard Henry BRYAN, Appellant, v. STATE of Florida, Appellee.
    No. 76-557.
    District Court of Appeal of Florida, Second District.
    May 6, 1977.
    Rehearing Denied June 6, 1977.
    Jack 0. Johnson, Public Defender, and Paul J. Martin, Asst. Public Defender, Bar-tow, for appellant.
    Robert L. Shevin, Atty. Gen., Tallahassee, and Robert J. Landry, Asst. Atty. Gen., Tampa, for appellee.
   PER CURIAM.

Appellant filed a motion asking that the judgment and sentence on an escape charge be set aside on the ground that he was not represented by counsel and he had not knowingly and intelligently waived counsel. The lower court denied the motion without an evidentiary hearing. We find that the record affirmatively shows no clear waiver of appellant’s right to counsel and reverse.

Appellant pled guilty to an escape charge in 1964. At the time he filed the motion under consideration here he had served the sentence on the escape charge, but was serving a federal sentence which, he alleged, had been enhanced by his escape conviction.

The first question that must be decided on this appeal is whether one may collaterally attack a judgment and sentence when he is no longer in the custody of Florida authorities.

Although the First District in Chapman v. State, 300 So.2d 749 (Fla. 1st DCA 1974), and Parks v. State, 301 So.2d 482 (Fla. 1st DCA 1974), answered this question in the negative, these decisions appear to be in conflict with our Supreme Court’s holding in State v. Reynolds, 238 So.2d 598 (Fla.1970), and with an earlier First District opinion, Wilcox v. State, 267 So.2d 15 (Fla. 1st DCA 1972). We disagree with the Chapman and Parks decisions and hold that under Reynolds, supra, a prisoner in the custody of a state other than Florida is “in custody” within the meaning of Fla.R. Crim.P. 3.850.

Having decided that appellant may collaterally attack his prior conviction, we must determine whether he is entitled to relief, i. e., whether the record affirmatively shows that he knowingly and intelligently waived counsel.

The colloquy between appellant and the trial court upon the entry of his plea to the escape charge, in its entirety, consisted of the following:

“THE COURT: Richard, they filed an information against you while you were in the custody of the prison authorities serving a sentence of five years that was imposed against you in the Criminal Court in Hillsborough County on the 13th of February, 1964, that you escaped and went at large.
You understand that is — constitutes a felony.
MR. BRYAN: Yes, sir.
THE COURT: For which you could get additional time in the state penitentiary. That you likewise have a right if you don’t feel you are guilty to plead not guilty and to have a jury to determine your guilt and if you do have a trial to an attorney to represent you. If you can’t afford the attorney, the State will pay for it and, of course, you can plead guilty and throw yourselve [sic] on the mercy of the Court. You have the privilege either way.
MR. BRYAN: That’s what I will do, your Honor.
THE COURT: What, plead guilty?
MR. BRYAN: Yes, sir.
THE COURT: Where do you live, Richard? In this county?
MR. BRYAN: Hillsborough County, Plant City.
THE COURT: I am sorry you did this because you added to your troubles. I don’t know that I blame you. I might have done the same thing if I had been out there. Under the law I have to sentence you to a year.
MR. BRYAN: Could I ask you to give it concurrent?
THE COURT: Yes, sir, but I can’t do it under the law. You are going to have to go back and tough it out because now I understand they will send you back to Raiford and reclassify you and you will probably lose your good time. It’s rough, Richard. I don’t break the law. That one year is the minimum.”

This record affirmatively shows that appellant was not represented by counsel and further affirmatively shows the lack of a knowing and intelligent waiver of counsel by appellant. Appellant is entitled to have the judgment and sentence on his escape charge vacated.

Reversed and remanded for the setting aside of the judgment and sentence on the escape charge against appellant.

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

      . Appellant’s motion was apparently treated as filed pursuant to Fla.R.Crim.P. 3.850, and we shall so consider it on this appeal.


text:
    Harry LEEDS et ux., Appellants, v. W. R. HUGHES, etc., Appellee.
    No. 75-1597.
    District Court of Appeal of Florida, Third District.
    May 10, 1977.
    Rehearing Denied June 3, 1977.
    William John Mason, Miami, for appellants.
    Milton M. Ferrell, Miami, for appellee.
    Before HENDRY, C. J., and BARKDULL and NATHAN, JJ.
   PER CURIAM.

Affirmed. See Welgoss v. End, 112 So.2d 390 (Fla. 3d DCA 1959); Dobson v. Crews, 164 So.2d 252 (Fla. 1st DCA 1964); Davis v. Asbell, 328 So.2d 204 (Fla. 1st DCA 1976).


text:
    Robert FREUND, Appellant, v. Harry A. GROSS, Appellee.
    No. 76-143.
    District Court of Appeal of Florida, Third District.
    May 10, 1977.
    Rehearing Denied June 1, 1977.
    Frank, Strelkow & Gay and Carl Allen Schmitt, North Bay Village, for appellant.
    Truett & Watkins and Harold E. Heller, Greene & Cooper, Miami, for appellee.
    Before BARKDULL, HAVERFIELD and HUBBART, JJ.
   PER CURIAM.

Defendant, Robert Freund, appeals a $20,000 final judgment entered for the plaintiff, Harry Gross, in an action for damages based upon breach of contract and fraud concerning stock purchases.

Gross filed a two-count complaint against Freund, appellant herein. Count one involved the purchase of 4,000 shares of Marine International Investment stock for $28,000 in July 1974. Gross alleged that he made the purchase from Freund on Freund’s representations that as a legal representative of Marine International he had “inside” information which led him to believe the price of the stock was certain to go up and he would have the investment stock legend removed from the certificates so that the stock could be sold on the open market. Freund also guaranteed in writing the minimum price of $6 per share for a period of up to 23 months. Within that period Marine International went bankrupt. Gross prayed for $28,000 in damages on this count on the grounds that (1) these representations were false, and (2) Freund failed to make good on his guarantee.

Count two of the complaint is based on $20,000 Gross gave to Freund for an assignment of 10,000 shares of Bloomfield Building Industries, Inc. (BBI) legend stock; certificate of this stock to be delivered to Gross within one year from the date of assignment with the legend so removed so that the shares could be sold on the open market. The SEC suspended trading in BBI stock, the transfer agent was removed and Freund was unable to transfer the stock within the required one year period. As a result, Gross sought $35,000 in compensatory and punitive damages grounded on the theory of breach of contract, fraud and misrepresentation on Freund’s part in inducing him to purchase the BBI stock. Freund answered and primarily alleged as a defense that Gross was a sophisticated investor. Following a non-jury trial, the judge entered final judgment for Freund on count one with respect to the Marine International stock purchase and a $20,000 judgment for Gross on the second count concerning the BBI stock. Freund appeals the adverse judgment on count two and Gross cross-appeals the denial of relief on count one.

Freund argues that since the damages awarded on count two are equal to the original purchase price, it appears that the trial court erroneously rescinded the contract of purchase since Gross did not pray for rescission and, therefore, the judgment cannot stand where this issue was not presented by the pleadings or litigation. We cannot agree.

Although an action by a buyer to recover the purchase price paid ordinarily rests on rescission of the contract of sale, such an action may be based on breach of contract where the goods have not been delivered. 78 C.J.S. Sales § 489 (1952). The record reflects that none of the BBI stock was ever delivered to Gross and in his complaint he pled breach of contract as one of the grounds for recovery. Thus, this point of • appellant is without merit. Cf. Shirley v. Lake Butler Corporation, 123 So.2d 267, 272 (Fla.2d D.C.A. 1960).

We also examined appellant’s second point on appeal and find no merit.

On cross-appeal Harry Gross argues that the trial court erred in finding for Freund on count one of his complaint seeking damages for the shares of Marine International. Here the evidence demonstrates that Freund gave Gross a written guarantee of a minimum price of $6 per share for 23 months. Within that period Marine International went bankrupt thereby making the stock worthless. Freund then became obligated under the purchase contract to pay Gross his guarantee of $6 per share for the 4,000 shares purchased. We, therefore, reverse the judgment entered for Freund on count one and remand the cause to the trial court to enter judgment for Gross for $24,000.

Affirmed in part, reversed in part.


text:
    CITY OF MIAMI BEACH, a Municipal Corporation, Oswald Ferro and John Bergacker, Appellants, v. Joel SUSSMAN, as Trustee, d/b/a Cadillac Hotel, Appellee.
    No. 77-102.
    District Court of Appeal of Florida, Third District.
    May 10, 1977.
    Rehearing Denied June 3, 1977.
    Joseph A. Wanick, City Atty., for appellants.
    Sibley, Giblin, Levenson & Glaser, Miami Beach, for appellee.

      Before HENDRY, C. J., PEARSON, J., and CHARLES CARROLL (Ret.), Associate Judge.
   PER CURIAM.

Affirmed. See State Road Dept. v. Newhall Drainage Dist., 54 So.2d 48 (Fla.1951); Baboun v. Royal Atlas Corporation, 287 So.2d 407 (Fla. 3d DCA 1973).


author: OTT, Judge.

text:
    In re ESTATE of Dorothea A. ULM, Deceased.
    No. 76-1396.
    District Court of Appeal of Florida, Second District.
    May 13, 1977.
    Valentine Gabaldon, West Palm Beach, for appellant.
    Allen J. Levin, Port Charlotte, for appel-lee.
   OTT, Judge.

The appellant, sister of the testatrix, appeals from an order dismissing with prejudice the appellant’s petition to revoke probate of the testatrix’s will. The petition sought relief on two grounds: (1) that the gift to certain charities as residuary beneficiaries was voidable under Section 731.19, Florida Statutes (1973), and (2) that the will was the product of undue influence. The trial court’s dismissal with prejudice necessarily foreclosed the relief sought on each ground. The trial court apparently thought that the appellant’s failure to perfect service of process as directed by the court’s order required dismissal of the petition. We disagree and, therefore, reverse in part.

Although a trial court has the inherent power to impose the sanction of dismissal as a coercive and disciplinary measure, the law abhors denial of access to the courts for any reason other than the willful abuse of the processes of the court. Rashard v. Cappiali, 171 So.2d 581 (Fla. 3d DCA 1965). Dismissal of an action with prejudice is a drastic punishment which should not be imposed unless the actions of the party show a deliberate and insubordinate disregard for the court’s authority. State v. Fattorusso, 228 So.2d 630 (Fla. 3d DCA 1969).

In the case at hand, the petition was filed after the effective date of the new Florida Probate Code. Apparently, however, the appellant’s counsel proceeded according to former probate practice under which service of original process was by citation through the court. See Section 732.09, Florida Statutes (1973). Consequently, the appellant’s counsel did not serve a copy of the petition upon the appellee. Nonetheless, the appellee obtained a ■ copy of the petition shortly after it was filed. The appellee promptly filed a motion attacking the timeliness of the petition and seeking dismissal of the petition for failure to serve the petition upon all interested parties. The motion resulted in an order of the trial court which directed, in part, that the appellant “shall have ten days from this Order to perfect service of her petition upon all interested parties. . . . ” There were approximately 18 interested parties. Service of the petition was to be by any form of mail requiring a signed receipt. Fla.R.P. & G.P. 5.040. This order was signed on a Saturday. On the following Monday, the date that the order was mailed to counsel, the appellant served her petition on 17 of the interested parties by registered mail. Unfortunately, the appellee was not among the parties served on this date. Thirteen days after the order was signed (“eleven days after the order was mailed to counsel and ten days after the order was filed”), the appellant served a copy of her petition upon the appellee by certified mail. The appellee admits receipt of a copy of the petition a short time later. Thus, at the outset the appellee had notice of the petition and does not contend that he was not fairly apprised of the contents of the petition.

Although the appellant’s actions may not have been in literal compliance with the lower court’s order, they were in very substantial compliance, which refutes any willfulness in failing to comply. Dismissal for failure to literally comply with the court’s directive was a harsh penalty unwarranted by the circumstances. Its imposition was a reversible abuse of discretion.

Since this cause will be remanded to the trial court for further proceedings on the appellant’s petition, we note that the appellant is without standing to avoid the charitable gifts under Section 731.19, Florida Statutes (1973). That statute clearly limits the right of challenge to those persons who would take an interest in the gift avoided and who are: the issue of the testator’s body, adopted children, lineal descendents of the testator’s issue or adopted children, and the testator’s spouse. The appellant, the testatrix’s sister, was not shown to be a member of one of these specifically enumerated statutory classes. Consequently, on remand the appellant may not challenge the charitable devises but should be heard on the merits of her petition to revoke probate of the will on her asserted grounds of undue influence.

REVERSED and REMANDED for further proceedings consistent with this opinion.

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


text:
    Robert DREW, Appellant, v. The STATE of Florida, Appellee.
    No. 76-965.
    District Court of Appeal of Florida, Third District.
    May 17, 1977.
    Bennett H. Brummer, Public Defender, and Karen M. Gottlieb, Asst. Public Defender, for appellant.
    Robert L. Shevin, Atty. Gen., and William M. Grodnick, Asst. Atty. Gen., for appellee.
    Before HENDRY, C. J., and BARKDULL and NATHAN, JJ.
   PER CURIAM.

Affirmed. State v. Padilla, 235 So.2d 309 (Fla. 3d DCA 1970); Donar v. State, 236 So.2d 145 (Fla. 1st DCA 1970); State v. Miller, 267 So.2d 352 (Fla. 4th DCA 1972); United States v. Rosselli, 506 F.2d 627 (7th Cir. 1974).


text:
    CIRCUIT SYSTEMS, INC., a Florida Corporation, Appellant, v. TRANS CONTINENTAL HOMES CORP., a Foreign Corporation, South Western Leasing Corp., a Florida Corporation and South Western Electronics, Inc., a Foreign Corporation, Appellees.
    No. 76-1208.
    District Court of Appeal of Florida, Third District.
    May 17, 1977.
    Hunter, Atkinson & Golden and Stephen F. Bacen, Hollywood, for appellant.
    Allen Clements, Arthur Lee Willner, Miami, for appellees.
    Before PEARSON, HAVERFIELD and HUBBART, JJ.
   PER CURIAM.

Affirmed. See Popkin v. Crispen, 213 So.2d 445 (Fla.4th DCA 1968); Eli Einbinder, Inc. v. Miami Crystal Ice Co., 317 So.2d 126 (Fla.3d DCA 1975).


author: BOARDMAN, Chief Judge.

text:
    John J. BLAIR, State Attorney, Twelfth Judicial Circuit, State of Florida, Appellant, v. MOBILE HOME COMMUNITIES, INC., Appellee.
    No. 76-1388.
    District Court of Appeal of Florida, Second District.
    May 18, 1977.

      Robert L. Shevin, Atty. Gen., and Martin S. Friedman, Asst. Atty. Gen., Tallahassee, for appellant.
    Charles D. Bailey, Jr., of Williams, Parker, Harrison, Dietz & Getzen, Sarasota, for appellee.
   BOARDMAN, Chief Judge.

Appellant/plaintiff appeals an adverse final judgment rendered in an action seeking an injunction to restrain appellee/defend-ant from violation of Section 83.71, Florida Statutes (1975). The statute states in part:

(1) No mobile home park shall make or enforce any rule which shall deny or abridge the right of any resident of such mobile home park or any owner of a mobile home located in such park to sell said mobile home within the park or which shall require the resident or owner to remove the mobile home from the park solely on the basis of the sale thereof.

Appellee is the owner and operator of a mobile home park in Sarasota County, Florida. The park consists of 470 individual lots and common areas which include a club house, swimming pool, therapy pool, shuffle board, and recreation room. Each resident of the park owns his own mobile home, but the lot upon which the home is located is leased from appellee pursuant to a written rental agreement. The agreement incorporated by reference certain park rules which in pertinent part provide that:

Selling tools such as signs will not be allowed to be displayed in windows, on the home or appurtenances, nor on the lawn.

Two residents of the park placed four inch by eight inch “for sale” signs in the windows of their mobile homes and were threatened by appellee with enforcement proceedings. The residents filed a complaint with John J. Blair, the state attorney at that time, who filed a complaint in the circuit court. At a hearing on the state’s application for a temporary injunction, ap-pellee introduced evidence as to the favorable purposes of the park rule under attack and as to the other forms of advertising available to the residents. The trial court found that the rule did not abridge the statutory right of mobile home owners to sell their mobile homes. We disagree and reverse.

Our point of departure with the trial judge’s ruling is interpretation of the statute, particularly the language “deny or abridge the right ... to sell. . . ” It is uncontroverted that “[t]he word ‘abridge’ means diminish, curtail, deprive, cut off, reduce.” Jolicoeur v. Mihaly, 5 Cal.3d 565, 96 Cal.Rptr. 697, 700, 488 P.2d 1, 4 (1971), citing Webster’s New International Dictionary 6 (3d ed. 1961). See also Schermerhorn v. Local 1625 of Retail Clerks International Association, 141 So.2d 269 (Fla.1962). The phrase “deny or abridge” means circumscribe or burden. Gray v. Johnson, 234 F.Supp. 743 (D.C.Miss.1964). We do not agree that the right to sell is restricted to alienation or transfer of title any more than the right to vote is restricted to one who pays a poll tax as in Gray or the right to work is restricted to union members and those nonunion members who pay the equivalent of union fees as in Schermer-horn. Although a law which guarantees a right which by its terms shall not be denied or abridged may permit a reasonable curtailment of that right, it cannot be construed to permit restrictions which would render the right useless. See Schermer-horn, supra. It is our view that the absolute prohibition, regardless of size, character, or placement, of a “for sale” sign places an unlawful burden on the right to sell by diminishing the implementation of that right.

We agree with the trial judge that the intent of the legislature was not to prohibit the park owner “from keeping his park upgraded.” State v. Henely, 41 Fla. Supp. 190, 192 (Fla. 6th Cir. Ct.1975). The owner and the tenants of a mobile home park have a common interest in a guarantee that their surroundings will be pleasant and maintained according to a certain standard. This opinion is not to be construed, therefore, as prohibiting a rental agreement which incorporates a rule providing a reasonable restriction on the character, size, or placement of a “for sale” sign in the mobile home or on the lot.

Accordingly, the cause is reversed and remanded for proceedings consistent with this opinion.

HOBSON and SCHEB, JJ., concur.

      . Renumbered Section 83.765, effective July 1, 1976.


text:
    George JEWELL, Appellant, v. STATE of Florida, Appellee.
    No. CC-2.
    District Court of Appeal of Florida, First District.
    May 20, 1977.
    Richard W. Ervin, III, Public Defender, and Michael M. Corin, Asst. Public Defender, for appellant.
    Robert L. Shevin, Atty. Gen., and Richard W. Prospect, Asst. Atty. Gen., for appellee.
   PER CURIAM.

Appellant raises two points on this appeal. He first contends the trial court committed fundamental error in certain comments made to the jury in open court in the presence of appellant and his counsel in response to a question asked by the jury after they had retired. We find no error. By his second point, appellant contends that the trial court erred in not crediting county jail time prior to sentencing on the last sentence which he received. Such credit should have been given. See Coleman v. State, 326 So.2d 217 (Fla. 2 DCA 1976). The judgment is affirmed, but the cause is remanded to the trial court to give appellant credit on his sentence for the aforesaid county jail time. Such may be done by order without returning appellant to the court.

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


author: SMITH, Judge.

text:
    Frederick Edward LEO, Appellant, v. STATE of Florida, Appellee.
    No. CC-132.
    District Court of Appeal of Florida, First District.
    May 20, 1977.
    Rehearing Denied June 7, 1977.
    Walter B. Dunagan, Daytona Beach, for appellant.
    Robert L. Shevin, Atty. Gen., and Donald K. Rudser, Asst. Atty. Gen., Tallahassee, for appellee.
   SMITH, Judge.

Appellant was convicted of criminal attempt on an information charging he bought, received or aided in the concealment of a stolen tractor-trailer vehicle, the property of Food Haul, Inc., knowing it was stolen. Sections 811.16, 776.04, Florida Statutes (1973). His principal contention here is that the State did not prove ownership as alleged and, indeed, did not prove ownership at all.

No certificate of title or other documentary evidence of the vehicle’s ownership was introduced. No one testified in so many words that the vehicle was owned by Food Haul, Inc. Although one witness intimated the stolen vehicle belonged to A & P, the grocery chain corporation for whom Food Haul was a contract hauler, no sufficient testimony to that effect was received. Yet the vehicle found disguised in appellant's possession was satisfactorily shown to be the vehicle stolen from the custody of a Food Haul employee who was operating it in the course of his employment. The vehicle then bore the name Food Haul on its doors; its tires were branded with Food Haul’s initials; and it was recovered as a result of a witness responding to a Food Haul advertisement offering a reward for its recovery.

We cannot accept appellant’s argument that Section 319.22(1), Florida Statutes (1973) requires proof of ownership by a certificate of title. That statute concerns establishment of marketable title and does not purport to govern the character of evidence necessary for a criminal conviction. Pelaez v. State, 107 Fla. 50, 144 So. 364 (1932) presents greater difficulty. There the Supreme Court reversed a similar conviction because ownership of the stolen sugar was not proved to be “the property of O’Berry and Hall .Company, a corporation” as alleged, but was shown to be the property of Caldwell Bonded Warehouse, Inc. The statute there as here did not explicitly make proof of another’s ownership an essential element, but the court held:

“[T]he statute impliedly contemplates that the ownership of the goods stolen shall be alleged and proven as alleged . . . 107 Fla. at 56, 144 So. at 366.

In Gray v. State, 104 So.2d 92 (Fla.2d DCA 1958), an information charged Gray knowingly received property stolen from “G. G. Sirman, doing business as Tropical Awning, Shutter and Jalousie Company of Miami,” but testimony showed “Tropical Awning, Shutter & Jalousie Co. of Miami owned the property.” The court held proof of G. G. Sirman’s ownership was essential. In both Peiaez and Gray a new trial was ordered. See also Ketelsen v. State, 211 So.2d 853, 854 (Fla.3d DCA 1968) (dictum).

Although the holdings of Peiaez and Gray seem not to have been explicitly receded from, their force is blunted by decisions giving effect to proof that the stolen property was owned by and in custody of one other than the person alleged to be the owner. Shiver v. State, 103 Fla. 871, 138 So. 502 (1931); Cortes v. State, 135 Fla. 589, 185 So. 323 (1938); Brown v. State, 111 So.2d 296 (Fla.2d DCA 1959) (in which the indictment alleged also the lawful possession of the true possessor). Other decisions have accepted ownership proof which established at most a logical inference of dominion rather than title. Duncan v. State, 29 Fla. 439, 10 So. 815 (1892); McClendon v. State, 117 So.2d 506 (Fla.1st DCA 1960). Having in mind that "allegation and proof of ownership in such a case as this is principally to negate the accused’s ownership, Cannon v. State, 289 So. 2d 445 (Fla.2d DCA 1974), and that in burglary prosecutions “ownership is any possession which is rightful as against those alleged to be burglars,” Dorsey v. State, 324 So.2d 159, 160 (Fla.1st DCA 1975), we hold that Food Haul, Inc.’s ownership or right to possess the stolen vehicle was sufficiently proved to withstand appellant’s attack. Appellant’s other points are without merit.

AFFIRMED.

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

      . “(1) Except as provided in ss. 319.21 and 319.28, no person acquiring a motor vehicle from the owner thereof, whether such owner be a dealer or otherwise, hereafter shall acquire a marketable title in or to said motor vehicle until he, she, or it shall have had issued to him, her or it a certificate of title to said motor vehicle; nor shall any waiver or estoppel operate in favor of such person against a person having possession of such certificate of title or an assignment of such certificate for said motor vehicle for a valuable consideration. Except as otherwise provided herein, no court in any case at law or in equity shall recognize the right, title, claim or interest of any person in or to any such motor vehicle, hereafter sold or disposed of, or mortgaged or encumbered, unless evidenced by and on a certificate of title duly issued, in accordance with the provisions of this law.”

      . Section 7239, CGL (1927): “Whoever buys, receives or aids in the concealment of stolen money, goods or property, knowing the same to have been stolen, shall be punished . . . . ” Sec. 811.16, Fla.Stat. (1973) was essentially identical.


author: RAWLS, Acting Chief Judge.

text:
    Henry HARVEY, d/b/a Hi Neighbor Store, Petitioner, v. Charles A NUZUM, Director, Division of Beverage, Department of Business Regulation, State of Florida, Respondent.
    No. DD-239.
    District Court of Appeal of Florida, First District.
    May 20, 1977.
    Aaron A. Green, Gainesville, for petitioner.
    William A. Hatch, Tallahassee, for respondent.
   RAWLS, Acting Chief Judge.

Petitioner Harvey seeks review of a final order of the Division of Beverage (division) revoking his beverage license.

On May 14, 1975, the division filed an administrative complaint against Harvey, alleging that he had earlier pled guilty to one count of a drug violation, had been adjudicated guilty of same, and such conduct was grounds for revoking his license pursuant to Section 561.29 of the beverage laws.

A hearing was held by the Division of Administrative Hearings. On March 29, 1976, the hearing officer published his recommended order that the administrative complaint against Harvey be dismissed. In support of this recommendation, the hearing officer found that the division had failed to present any admissible evidence that Harvey had violated any provision of Section 561.20, Florida Statutes, and that it also failed to offer evidence that Harvey even held a beverage license issued by the State.

On August 4, 1976, notwithstanding the recommended order of the hearing officer, the division revoked Harvey’s beverage license. Without stating any specific findings of fact to refute those of the hearing officer, the division found that “a preponderance of the evidence supports Petitioner’s [Division] contention that Henry Harvey was convicted of a felony in Case No. 74-730, in Marion County, Florida,"in violation of Florida Statutes 561.29 of the Beverage Laws”.

Harvey first argues that the Division’s final order was devoid of the specific factual recitations required by statute when an agency has rejected the recommended order of a hearing officer. We agree.

Section 120.57(l)(b)(9), Florida Statutes (1975), states that an agency in its final order:

. . may not reject or modify the findings of fact unless the agency first determines from a review of the complete record, and states with particularity in the order, that the findings of fact were not based upon competent substantial evidence or that the proceedings on which the findings were based did not comply with essential requirements of law.”

In Powell v. Board of Public Instruction of Levy Co., 229 So.2d 308 (Fla. 1st DCA 1969), this court stated:

“It has been held that a final order of a county school board terminating a teacher’s contract of employment which is couched in such general language as to amount to nothing more than a ‘verdict of guilty as charged’ is insufficient. Due process as well as the requirements of the Administrative Procedure Act dictates that the agency’s final action be reduced to writing, contain findings of fact based upon the evidence adduced at the hearing, and specifically state the charges which the agency finds to have been sustained. . . . ”

And, as this court in Gentry v. Department of Professional and Occupational Regulations, 283 So.2d 386 (Fla. 1st DCA 1973), stated:

“It has been repeatedly held by the courts of this state that in order to assure due process and equal protection of the laws, every final order entered by an administrative agency in the exercise of its quasi-judicial functions must contain specific findings of fact upon which its ultimate action is taken. An administrative order which fails to contain such findings is ineffectual as a predicate for the order sought to be enforced.”

Here, the division rejected the findings of fact found in the hearing officer’s recommended order without stating “with particularity in the order, that the findings of fact were not based upon competent substantial evidence or that the proceedings on which the findings were based did not comply with essential requirements of law.” Such action of the division fails to comport with the requirements of due process, the Administrative Procedure Act and Florida case law, and, as such, is fatally defective. See also Edwards v. Division of Beverage, 278 So.2d 659 (Fla. 1st DCA 1973).

Although remand with instructions requiring a more specific order is customary in cases in which an agency fails to comply with the provisions of Section 120.-57(l)(b)(9), Florida Statutes, a review of the record in the instant case shows that the division’s order was not supported by competent substantial evidence, and it is, therefore, quashed.

Last, Harvey petitions for an award of attorney’s fees and costs pursuant to Section 120.57(l)(b)(9), Florida Statutes, contending that the division’s bad faith or malice has been demonstrated by its deliberate failure to comply with the 90-day statutory time limitation and its failure to state specific findings of fact and conclusions of law in the final order. Although the division exhibited a degree of carelessness in its compliance with the requirements of Chapter 120, the record before this court does not demonstrate either bad faith or malice on its part, and thus this point is without merit. Bryan v. Department of Business Regulation, 316 So.2d 637 (Fla. 1st DCA 1975).

The petition for review of final agency action is granted, and the final order of the Division of Beverage revoking Harvey’s beverage license is quashed.

SMITH and ERVIN, JJ., concur.


author: ERVIN, Judge.

text:
    Michael BURBANK, Appellant, v. The SOUTHLAND CORPORATION, Appellee.
    No. FF-80.
    District Court of Appeal of Florida, First District.
    May 20, 1977.
    James L. Nipper, Jacksonville, for appellant.
    Victor M. Halbach, Jr., of Marks, Gary, Conroy & Gibbs, Jacksonville, for appellee.
   ERVIN, Judge.

Appellant filed his complaint alleging malicious prosecution against the defendant corporation, and when no responsive pleading was filed within 20 days, a default was entered by the clerk. The defendant, 16 days after default had been entered, filed a motion to set aside the default and to file an answer, attached an affidavit of the claim supervisor for defendant’s liability carrier setting forth grounds for excusable neglect under Fla.R.Civ.P. 1.540(b), and filed an answer to the complaint. The answer moved to dismiss the complaint for failing to show there was no termination of the original proceeding in favor of the plaintiff, and as a second defense, denied any malicious act by any employee or agent of the defendant. The trial court granted defendant’s motion to vacate the default and appellant brings this interlocutory appeal.

We affirm on the authority of North Shore Hospital, Inc. v. Barber, 143 So.2d 849 (Fla.1962). That opinion reversed the District Court and reinstated the trial judge’s setting aside of the default, holding in part: (1) The defense’s assertion that the defendant hospital was not negligent in its treatment of the plaintiff is a sufficient allegation of a meritorious defense. (2) A mere abuse of the trial judge’s discretion is not a sufficient basis for reversal of his ruling on the motion to vacate. A showing of gross abuse of discretion is necessary on appeal. (3) Coggin v. Barfield, 150 Fla. 551, 8 So.2d 9 (1942), is quoted:

“The true purpose of the entry of a default is to speed the cause thereby preventing a dilatory or procrastinating defendant from impeding the plaintiff in the establishment of his claim. It is not procedure intended to furnish an advantage to the plaintiff so that a defense may be defeated or a judgment reached without the difficulty that arises from a contest by the defendant.”

(4) Courts should not stand upon strict rules of practice and should keep the door open a long time to a defendant who seems to be honest and striving to get in what he believes to be a good defense. (5) A headnote in Waterson v. Seat and Crawford, 10 Fla. 326, is cited with approval:

“Whether a default should be opened, must depend on all the facts and circumstances connected with the case." If the party be guilty of gross negligence, the default will not be opened.”

The showing of inadvertence and excusable neglect here is not logically distinguishable from that in North Shore Hospital. Further, there is a sufficient factual demonstration in defendant’s answer that defendant had a meritorious defense, so that Scott v. Premium Development, Inc., 328 So.2d 557 (Fla. 1st DCA 1976) does not control. Had there been no answer filed with the motion to vacate default or allegations of a meritorious defense asserted in the affidavit, then Scott would have required reversal in this case. See also Metcalf v. Langston, 296 So.2d 81 (Fla. 1st DCA 1974). Here, however, we cannot say there was a gross abuse of the trial judge's discretion.

The twin requirements of excusable neglect or inadvertence under Rule 1.540(b) and a showing of a meritorious defense having been satisfied, the trial judge’s vacation of the default is

AFFIRMED.

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

      . The claims supervisor stated he misread the date process was served on the carrier and forwarded the suit papers to defense counsel too late for a timely response to be filed. See also Sterling Drug, Inc. v. Wright, 342 So.2d 503 (Fla.1977).


author: LETTS, Judge.

text:
    STATE of Florida, DEPARTMENT OF HEALTH AND REHABILITATIVE SERVICES, etc., et al., Appellants, v. Edward ARTIS et al.
    No. 76-2128.
    District Court of Appeal of Florida, Fourth District.
    May 20, 1977.

      Mary E. Clark, Asst. Gen. Counsel, Dept, of Administration, Tallahassee, and Douglas E. Whitney, Dist. Gen. Counsel, Health and Rehabilitative Services, Winter Park, for appellants.
    Andrew P. Mavrides, of Mavrides & La-timer and Alan H. Konigsburg, of Shamres & Konigsburg, Fort Lauderdale, for appel-lees.
   LETTS, Judge.

The opinion issued April 7, 1977 is withdrawn.

This is an interlocutory appeal from a circuit judge’s order granting a temporary injunction, and commanding the various appellants to reinstate certain security guards at the South Florida State Hospital. Said hospital is an institution caring for patients with mental disorders and those who have been committed to it by the criminal courts of the State of Florida.

We reverse.

The appellees are all career service employees on duty, at the said state hospital, to provide security. On or about September 17,1976, the chief of security learned of a proposed “sick out” by the guards, and on the same day issued a memorandum to be read at all roll calls which informed all security personnel to refrain from such a “job-action” and to use existing channels of command to resolve problems or grievances. Apparently the memo was ignored by 22 out of 28 day shift personnel who did, in fact, commence a “sick out” (on the morning of September 19th, 1976), to bolster their demands for hazardous duty pay and a call for an investigation of the said chief of security.

Thereafter, on the same morning, the hospital administrators caused the unmanned security posts to be filled with deputies from the Broward County Sheriff’s Department on an emergency basis, and the offending guards were either suspended, fired or later reinstated. Testimony by the district administrator, Kelley, was to the effect that the men were first given an hour to return to work, but in a painstaking and erudite order, the trial judge apparently concluded otherwise. The lower court, in granting the injunction said in part:

Testimony indicates some of the sixty (60) personnel were offered interviews, (which Defendants call hearings), some have never been heard, some have been officially notified of suspension and termination, some have never been notified officially of any action against them, some have at this writing valid doctor’s excuses for their actions and remain suspended, and to summerize [sic], the Court finds the handling of the discipline of these personnel arbitrary, inconsistent, inconsiderate, irregular, unfair and intolerable. Although the Court has no sympathy with the methods employed by the security personnel to attempt to attain their desired additional “hazardous duty pay,” the Court, nevertheless, must require the Department of Health and Rehabilitative Services to follow proper rules and regulations to accomplish its disciplinary measures.

A reading of the vast record on appeal does not suggest any reason to doubt these findings of fact by the honorable trial judge and, for instance, a memorandum from the Lt. Governor in June, which was required to be distributed to all personnel, remained unheard of by the guards involved in the “sick out” until after the unfortunate episode took place.

However, notwithstanding all of the foregoing, we disagree with the trial judge’s finding which said:

The Court finds no adequate remedy exists for the Plaintiffs for the prompt reinstatement of their positions, which were arbitrarily taken from them. A lengthy appeal process is not an adequate remedy for those who must work every day to support themselves and their families.

We are in sympathy with all of the preceding language above quoted and have little doubt that the situation was mishandled by a combination of bureaucratic bungling and high handedness at the local level. Yet, we cannot support the trial judge’s decision, for it does not appear to us to be the law.

Appellants contend that the injunction was improperly issued, as the necessary legal requirements were not present. The essential criteria for a temporary mandatory injunction have been enumerated by the Supreme Court in Wilson v. Sandstrom, 317 So.2d 732, 736, (Fla.1975) viz. (1) irreparable harm, (2) a clear legal right, (3) inadequate remedy at law, and in some circumstances (4) consideration of the public interest. We conclude there was no irreparable harm and an adequate remedy existed, which conclusions make it unnecessary to discuss the remaining two criteria.

It is true that the guards have alleged that they would be irreparably injured because of loss of employment, unless appellants are enjoined from hiring new employees to do their jobs; however, there does not appear to be any evidence in the record showing how else the guards would be harmed, and loss of income is not enough. As appellants point out, there is a provision by statute for reinstatement of an employee with, or without, back pay, and for reasonable attorneys fees and expenses incurred during the prosecution of an appeal under Florida Statute § 110.061(3).

Although the Florida courts, apparently, have not directly ruled on the issue of the availability of injunctive relief, in cases involving loss of income, the Supreme Court of the United States has held that “the temporary loss of income, ultimately to be recovered, does not usually constitute irreparable injury.” Sampson v. Murray, 415 U.S. 61, 94 S.Ct. 937, 952, 39 L.Ed.2d 166 (1974). That case dealt with a similar situation in which a probationary federal employee was granted temporary injunctive relief from dismissal from employment by the district court pending an administrative appeal. The Supreme Court reversed, noting that

an insufficiency of savings or difficulties in immediately obtaining other employment — external factors common to most discharged employees and not attributable to any unusual actions relating to the discharge itself — will not support a finding of irreparable injury, however severely they may affect a particular individual. 94 S.Ct. at 953 n. 68.

A comparable ruling was made in Connell v. Higginbotham, 305 F. Supp. 445 (M.D.Fla.1969), in which denial of a temporary restraining order to prohibit dismissal of a teacher pending a determination of constitutional rights, was approved. The court there found that no irreparable harm would be suffered because any loss of wages could be compensated for by damages.

As to the presence of an adequate remedy, appellants contend that the opportunity to appeal to the Career Service Commission affords appellees a full hearing at which their legal rights can be determined. If in this proceeding it is found that appellees were wrongfully dismissed, the Commission has authority to reinstate appellees to their jobs with or without back pay and to order reimbursement for attorneys fees and costs. Florida Statute 110.061(3). The procedural safeguards of representation by counsel, the right to present an opening statement and testimony and to cross-examine witnesses are provided for by the Commission rules. Florida Administrative Code, Section 22A-10.06.

There does not seem to be a Florida case which states outright that an administrative remedy is an adequate remedy at law, and it has been suggested elsewhere that in order to bar equitable relief, there must be a remedy in a court of law. Michaels v. Macan Estates, 197 Misc. 485, 99 N.Y.S.2d 103 (Sup.Ct.1950). However, in that case, contractual rights between a landlord and his tenant were at issue, and the administrative remedy available was merely an ad-junctive one provided by the Federal government to aid tenants in dealing with their landlords. It was in no way mandatory upon them.

Obviously, where pursuit of an administrative remedy would be of no avail, there is no adequate remedy provided, and one is not required to follow that avenue for relief. Southern Bell Telephone and Telegraph Co. v. Mobile America Corp., Inc., 291 So.2d 199 (Fla.1974). Moreover, where the continuance of an administrative proceeding and the plaintiff’s right to participate in it are matters of grace, it cannot be said that his remedy is adequate. Dederick v. North American Co., 48 F. Supp. 410 (S.D.N.Y.1943). However, in discussing the issue of administrative procedures constituting an adequate remedy at law, the Supreme Court of the United States has stated:

It is true that the presence of constitutional questions, coupled with a sufficient showing of inadequacy of prescribed administrative relief and of threatened or impending irreparable injury flowing from delay incident to following the prescribed procedure, has been held sufficient to dispense with exhausting the administrative process before instituting judicial intervention. But, without going into a detailed analysis of the decisions, this rule is not one of mere convenience or ready application. Where the intent of Congress is clear to require administrative determination, either to the exclusion of judicial action or in advance of it, a strong showing is required, both of inadequacy of the prescribed procedure and of impending harm, to permit short-circuiting the administrative process. Congress’ commands for judicial restraint in this respect are not lightly to be disregarded. Aircraft Diesel Equipment Corp. v. Hirsch, 331 U.S. 752, 773, 67 S.Ct. 1493, 1503, 91 L.Ed. 1796 (1947).

The Florida Legislature has established a procedure whereby career service employees can appeal a suspension or dismissal to the Career Service Commission. Fla.Stat. § 110.061 (1977). It has also provided that the decision of the Commission . shall be reviewable only by the judiciary on the grounds that:

(a) The commission did not afford a fair and equitable hearing.
(b) The decision of the commission was not in accordance with existing statutes or rules and regulations promulgated thereunder.
(c) The decision of the commission was not based on substantial evidence. Id.

The Legislature’s intent clearly was to require an administrative determination prior to any judicial review of the matter. In addition, it has been mandated by the Supreme Court that:

Where a method of appeal from an administrative ruling has been provided, such method must be followed to the exclusion of any other system of review. Where an administrative remedy is provided by statute, relief must be sought by exhausting this remedy before the courts will act. Florida Welding and Erection Service, Inc. v. American Mutual Insurance Company of Boston, 285 So.2d 386, 389-390 (Fla.1973).

Since an administrative procedure has been created by the Legislature, which assures full protection of due process rights and offers complete relief, it must be considered to be an adequate remedy. Under the law applicable in Florida, this administrative remedy should be pursued prior to obtaining access to the courts.

As was said in Duval County School Board v. Armstrong, 336 So.2d 1219 (Fla. 1st D.C.A. 1976), the courts should not interfere in the administrative process which has been effected by law to resolve employment disputes. In Armstrong, the circuit court entered an order temporarily enjoining a dismissal hearing pending the court’s determination of the plaintiffs’ entitlement to specific due process rights at the hearing. The appellate court reversed, saying

. it is inappropriate for the circuit court, by means of declaratory decree and preliminary injunction, to intervene in the administrative process either to declare abstractly the rules that must in all events govern or to monitor the Board as the administrative process. Id. at 1220.

This rule against intervention by the courts into the operations of administrative agencies was also discussed in Tampa Port Authority v. Deen, 179 So.2d 416 (Fla. 2nd D.C.A. 1965). In reversing an injunction precluding the Port Authority from considering an application for a fill permit, the court stated

The courts of this State have been extremely reluctant to interfere with the action of administrative bodies in the proper performance of their responsibilities, and have done so only where there is a clear and unmistakable violation of constitutional and statutory rights of the affected parties. Mere allegations that an administrative agency might take actions which, if adopted, would be unlawful or ineffective constitute no ground for injunctive interference with the internal functioning of such agency. The actions of such agencies are to be tested by the action which they actually take. Such actions, if invalid or are beyond the authority of such agency, can be tested in appropriate proceedings wherein it may be necessary for the court to determine the enforceability of such actions as the same may affect the rights of others. Id. at 418.

The complaint filed by these security guards indicates that they have, in fact, filed notice of their intention to appeal to the Career Service Commission, and we can see no good reason to suppose that the guards cannot adequately test both the procedural shortcomings, and the merits, of the suspensions and firings before said Commission. The State Career Service Commission has been created by the legislature expressly for this purpose, and we believe it should be permitted to so function in this case.

This cause is reversed and the injunction dissolved.

CROSS and ANSTEAD, JJ„ concur.


author: SCHEB, Judge. BOARDMAN, Chief Judge,

text:
    Martin CARRIZALES, Appellant, v. STATE of Florida, Appellee.
    No. 76-236.
    District Court of Appeal of Florida, Second District.
    May 20, 1977.

      Jack 0. Johnson, Public Defender, Bar-tow, and Douglas A. Wallace, Asst. Public Defender, Bradenton, for appellant.
    Robert L. Shevin, Atty. Gen., Tallahassee, and C. Marie King, Asst. Atty. Gen., Tampa, for appellee.
   SCHEB, Judge.

Appellant was tried by jury and found guilty of first degree murder. He appeals the trial court’s judgment of conviction and sentence to life imprisonment.

Appellant contends that the trial court erred in refusing to instruct the jury on Section 782.11, Florida Statutes, which provides that when a defendant unnecessarily kills another while resisting the other person’s attempt to commit a felony or do any other unlawful act, the defendant shall be guilty of manslaughter.

In view of appellant’s testimony in support of his defense, we agree that the trial judge erred in failing to give the requested instruction. We reverse and remand for a new trial.

The facts at trial revealed that the appellant, age seventeen, had spent most of Sunday, April 13, 1975, riding around in a car with his friends. He and his friends consumed substantial quantities of alcoholic beverages in the course of the day. Sometime during the day, they were joined by Faustino Gonzalez who was carrying a revolver on his person. Gonzalez had also been drinking and while they were all together, he fired his revolver into the air several times causing some apprehension among the group.

That same evening appellant and Gonzalez met again at Wauchula Plaza, a shopping center. A quarrel ensued with appellant and Gonzalez engaging in a fist fight. Once their friends intervened, the fight stopped; however, Gonzalez continued to push and shove the appellant. When Gonzalez again raised his revolver, appellant ran to a nearby filling station. There, appellant met Jose Lopez who drove him home. Appellant went into his house, got a rifle and drove back to the Wauchula Plaza with Lopez, arriving there at approximately 11:30 P.M. Appellant got out of the car at the service station and asked Lopez to tell Gonzalez that he wished to speak with him and to make friends. But before Lopez reached Gonzalez, appellant fired two shots, one of which struck Gonzalez. He died shortly thereafter from the gunshot wound.

Appellant testified at trial that his purpose in returning to the. shopping center, was “to make friends with Gonzalez.” He said he brought the rifle along to protect himself in the event Gonzalez should threaten him again with the revolver that he was carrying. Further, appellant testified that when he got out of Lopez’ car, he heard gunshots and saw Gonzalez aiming his pistol at him, and that he fired back in self-defense. However, two other witnesses testified for the state that Gonzalez was only talking to friends when he was shot. The jury obviously rejected appellant’s plea of self-defense.

The trial judge refused appellant’s request to instruct the jury on the provisions of Section 782.11, Florida Statutes, which provides:

Whoever shall unnecessarily kill another, either while resisting an attempt by such other person to commit any felony, or to do any other unlawful act, or after such attempt shall have failed, shall be deemed guilty of manslaughter, a felony of the second degree, punishable as provided in Sections 775.082, 775.083 or 775.-084.

The jury was instructed on the degrees of homicide, justifiable homicide, excusable homicide, and self-defense; however, appellant contends that had the court also instructed on Section 782.11, the jury might well have found that appellant’s act, even though intentional, constituted manslaughter rather than murder.

In Whitehead v. State, 245 So.2d 94 (Fla.2d DCA 1971), the defendant was charged with second degree murder. From the defendant’s own version of the homicide, it appeared that he was lawfully attempting to “keep the peace.” The court there held that Section 782.11 defines a particular substantive offense of manslaughter in and of itself. While this offense is not necessarily a lesser included offense within murder, the court in Whitehead stated that it constituted a lesser included offense in that case based on the facts and the theory of the defense. See Brown v. State, 206 So.2d 377 (Fla.1968).

It is a fundamental principle of law that if evidence is introduced in support of a defense, the defendant is entitled to have the jury instructed on the law applicable to his theory of defense. Koontz v. State, 204 So.2d 224 (Fla.2d DCA 1967). Here, even though appellant’s testimony was disputed by other witnesses, his version of the facts formed an evidentiary basis for the requested instruction on Section 782.11. He was entitled to have the jury instructed on that theory. If the jury believed the defendant, it could have found him guilty of manslaughter if the requested instruction had been given.

The state argues the trial judge’s refusal to give the requested instruction is supported by Snell v. State, 302 So.2d 770 (Fla.1st DCA 1974). In Snell, the defendant pulled a gun and shot the victim after harsh words had passed between the two of them and, according to the defendant’s version, the victim began advancing toward the defendant saying, “I’ll really mess you up this time.” We cannot agree with the state’s position. While we do not have the benefit of all the facts in Snell, the majority in that case concluded that the facts there were “not such as found in Whitehead.”

We believe the legislative intent of Section 782.11 was to reduce the punishment of a defendant where there was some possible justification or excuse for what the defendant did or attempted to do. Though the force used was excessive, the legislature apparently desired to allow such an error in judgment to reduce the defendant’s punishment to manslaughter. The statute should apply only where the defendant unnecessarily kills another while resisting an attempt by a victim to commit a felony or to do an unlawful act, as appellant claims Gonzalez did in this case.

Appellant raised a further point concerning a typewritten transcript of a tape-recorded statement taken from him by a deputy sheriff and read at trial. The thrust of appellant’s argument is that his statement was not properly authenticated since no one present when the statement was taken testified that the transcript accurately reflected the actual interview between the deputy and the appellant. In view of our opinion requiring a new trial because of the court’s failure to give the requested instruction, we do not reach this contention. We are confident, however, that on retrial the court will make certain that the transcript of appellant’s tape-recorded statement is properly authenticated before admitting it into evidence. See Duggan v. State, 189 So.2d 890 (Fla. 1st DCA 1966).

Accordingly, this cause is reversed and remanded for a new trial consistent with this opinion.

GRIMES, J., concurs.

BOARDMAN, C. J., dissents with opinion.

BOARDMAN, Chief Judge,

dissenting.

I respectfully dissent from the result reached by the majority. It is my view that the statute proscribing an act constituting an unnecessary killing committed where the defendant was “resisting an attempt by . [the victim] to commit any felony . . . ” contemplates that the act be done other than in self-defense. Section 782.11, Florida Statutes (1975). It is applicable to a situation such as that in Whitehead where the defendant contended that the death resulted from his efforts to resist an unlawful act. In the case before us appellant does not set forth a Whitehead -type defense, and the facts do not warrant an instruction on Section 782.11.


author: HOBSON, Acting Chief Judge.

text:
    Mary Lewis JOHNSON and Preferred Risk Mutual Insurance Company, Appellants, v. Mary L. PHILLIPS, Edmund Phillips and Auto Owners Insurance Company, Appellees.
    No. 76-398.
    District Court of Appeal of Florida, Second District.
    May 20, 1977.
    A. J. Melkus, Lakeland, for appellants.
    Eugene W. Harris, Peterson, Carr, Harris & Seacrest, Lakeland, for appellees Phillips.
    Edward E. Fessenden, Jr., Lane, Massey, Trohn, Clarke, Bertrand & Smith, Lake-land, for appellee Auto Owners Ins. Co.
   HOBSON, Acting Chief Judge.

The only point on this appeal and cross appeal which merits discussion is whether or not the appellee, Mary Phillips, crossed the threshold requirement provided for in Florida Statute 627.737(2).

Appellants contend that Mrs. Phillips did not prove within a reasonable medical probability that she suffered a permanent injury. In support of this contention appellants rely on Avis Rent-A-Car System, Inc. v. Stuart, 301 So.2d 29 (Fla.2d DCA 1974). In that case this court held that the injured party did not have a permanent injury, although at the time of trial he was still experiencing pain in his lower back, tightness in his upper back, a certain amount of limitation of motion of his right arm, and could not lift objects which prior to the accident he was capable of lifting. This was held to be insufficient proof of permanent injury because the only medical testimony was that the injured party had no permanent injury. There was no medical testimony that the subjective complaint, i. e., pain, was permanent.

The medical testimony in the instant case shows that Mrs. Phillips was suffering from a post-concussion syndrome or post-traumatic syndrome. The symptoms of such syndromes are headaches and dizziness. Dr. Taxdal, a Neurosurgeon, was asked these questions and gave these answers:

“Q And at this time now that we have had two successive normal electroencephalogram tests, your position is that the injury is not permanent but the complaints may well be permanent, the subjective complaints.
A Yes, I am so stating that.
Q Doctor, just so that there is no question when you say you are so stating that, you are stating with an opinion based upon reasonable medical probability that this patient does not in fact have a permanent injury. Is that correct?
A I have stated that within reasonable medical certainty I feel the patient’s complaints are permanent. I have further stated for clarification I do not feel she has permanent injury of an organic nature that I can see.”

It is clear from Dr. Taxdal’s testimony that in his opinion to have a permanent injury it must be of an organic nature or what is sometimes called “objective findings.”

Mrs. Phillips’ initial injury was of an organic nature, to wit, a brain concussion. This organic injury resulted in “permanent injury” albeit it manifests itself through subjective complaints of pain, which complaints, according to the medical testimony, are permanent.

We interpret the words “permanent injury” in Florida Statute 627.737(2) to include permanent subjective complaints of pain resulting from an initial organic injury. Therefore, we hold that Mrs. Phillips crossed the threshold requirements of Florida Statute 627.737(2) and affirm the judgments appealed.

McNULTY and SCHEB, JJ., concur.


author: SCHEB, Judge.

text:
    Johnnie SMITH, Appellant, v. STATE of Florida, Appellee.
    No. 76-1370.
    District Court of Appeal of Florida, Second District.
    May 20, 1977.

      Robert E. Jagger, Public Defender, Clear-water, and Susan F. Schaeffer, Asst. Public Defender, St. Petersburg, for appellant.
    Robert L. Shevin, Atty. Gen., Tallahassee, and Davis G. Anderson, Jr., Asst. Atty. Gen., Tampa, for appellee.
   SCHEB, Judge.

Appellant Smith challenges the trial court’s denial of his motion for discharge under the provisions of Fla.R.Crim.P. 3.191, the Speedy Trial Rule. We reverse.

Smith was arrested on charges of possession of heroin and paraphernalia on November 4, 1975. The state filed an information against him some 4V2 months later. Smith entered a written plea of not guilty. On April 8, 1976, he appeared at an arraignment, at which time the trial judge set his trial for May 12. On May 10, prior to the scheduled trial, Smith moved for discharge. The trial judge, who had also presided over Smith’s arraignment, denied the motion. Smith then pled nolo contendere to the charges, preserving the right of appeal on the speedy trial question. He was placed on three-years probation. He now appeals.

The state concedes Smith’s trial date was 10 days beyond the 180 days provided for under Rule 3.191. But the state contends Smith waived his right to be tried within 180 days by either agreeing or acquiescing to the trial date of May 12. We must disagree.

The Speedy Trial Rule contemplates that the period of time for trial may be extended. Subsection (d)(2) states:

When Time May Be Extended. The periods of time established by this Rule for trial may at any time be waived or extended by order of the court (i) upon stipulation, signed in proper person or by counsel, by the party against whom the stipulation is sought to be enforced, provided the period of time sought to be extended has not expired at the time of signing .

The record before us is devoid of any written evidence or any testimony to show a waiver by the appellant. In finding a waiver, the trial judge relied on her own recollection. She stated:

I can’t — I can’t go along with your theory that there hasn’t been an effective acquiescence and perhaps specific agreement with regard to this particular trial date. As I recall, we do not have — we did not have a court reporter for that arraignment on April the ninth. We may have. I just do not recall.

This court has recognized that the right to a speedy trial may be waived by a defendant by agreement to a trial date beyond the deadline for trial. State v. Nelson, 320 So.2d 835 (Fla.2d DCA 1975). Although the Rule requires that a defendant’s waiver of that right must be in writing and signed by the defendant, we have held that a written recording of an oral stipulation can obviate this requirement. Eastwood v. Hall, 258 So.2d 269 (Fla.2d DCA 1972). With no written evidence of a waiver by appellant or his counsel, the only indication in the record which points to a possible waiver is the trial judge’s quoted statement on arraignment procedures. Unfortunately, a transcript of Smith’s arraignment is unavailable to us. In all candor, the record reveals that the trial judge’s recollection extended more to the general procedures usually followed by the court on arraignment than to the specific details of Smith’s arraignment. This is certainly understandable, considering the volume of proceedings of this nature handled by a trial judge. Neither the state attorney nor public defender who appeared at the discharge hearing was present at Smith’s arraignment. The public defender, however, represented to the trial judge that no one from her office had agreed to any specific trial date. So the record is silent as to any agreement by the appellant or his counsel to waive application of the Rule.

Reducing a waiver to writing may seem burdensome to the state; however, this requirement of the Rule is clear. At the very least there should be a transcript made of any proceedings which may involve a possible waiver of the Rule. We must not attempt to cast this additional burden on the recollection of a trial judge.

From the record before us, we cannot presume a waiver by appellant of his rights under Rule 3.191. Accordingly, the judgment of the trial court is reversed and the defendant is discharged.

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


text:
    Clifton MASSEY, Appellant, v. STATE of Florida, Appellee.
    No. CC-338.
    District Court of Appeal of Florida, First District.
    May 25, 1977.
    Richard W. Ervin, III, Public Defender; and Michael M. Corin, Assistant Public Defender, for appellant.
    Robert L. Shevin, Atty. Gen., and Donald K. Rudser, Asst. Atty. Gen., for appellee.
   PER CURIAM.

We have considered Points I and II raised by appellant on this appeal and find them to be without merit. As to Point II, see Jenkins v. State, 317 So.2d 90 (Fla. 1 DCA 1975), and Daughtrey v. State, 325 So.2d 456 (Fla. 1 DCA 1976), cert. den. 336 So.2d 600.

Affirmed.

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