author: OTT, Judge. GRIMES, Chief Judge,

text:
    Joseph J. GODOROV, Appellant, v. STATE of Florida, Appellee.
    No. 78-344.
    District Court of Appeal of Florida, Second District.
    Dec. 13, 1978.
    Rehearing Denied Jan. 11, 1979.
    Paul B. Johnson of Gregory, Cours, Pan-iello, Johnson, Hayes & Hoft, Tampa, for appellant.
    Robert L. Shevin, Atty. Gen., Tallahassee, and Eula Tuttle Mason, Asst. Atty. Gen., Tampa, for appellee.
   OTT, Judge.

The issue before us is whether the lower court erred in excluding the testimony of a certain defense witness. We hold that the testimony of that witness was relevant and should have been admitted. Accordingly, we reverse.

The information charged appellant — an osteopath — with violation of Chapter 893 Florida Statutes (1977) for allegedly delivering quantities of two controlled substances to undercover police officers not issued “in good faith and in the course of his professional practice.” At trial, the state presented the testimony of two undercover officers, the state chemist and two physicians. The physicians testified that the deliveries made by the appellant to the undercover officers were in “bad faith.”

In making its case that the appellant acted in bad faith, the state placed great emphasis on the size of the dosage or quantity of the drugs prescribed by appellant. The record is replete with testimony elicited by the state on this point.

Appellant attempted to call a pharmacist whose proffered testimony went directly to the question of dosages, i. e., whether the quantity and/or frequency of the drugs for the purposes claimed were according to the generally accepted prescribing practices in the local area. The lower court excluded this testimony on the ground that it was not relevant. Where a trial court refuses to permit defense witnesses to testify as to matters which are the heart of a defendant’s defense, that error is harmful. Marcum v. State, 341 So.2d 815 (Fla.2d DCA 1977); Atkinson v. State, 317 So.2d 807 (Fla.4th DCA 1975); Simonds v. State, 304 So.2d 525 (Fla.2d DCA 1974).

We hold that the pharmacist’s testimony was relevant and that it was error for the lower court to exclude it.

The judgment and sentence are set aside and vacated and the case remanded for a new trial.

SCHEB, J., concurs.

GRIMES, C. J., dissents with opinion.

GRIMES, Chief Judge,

dissenting.

Contrary to the view expressed by the majority, I do not think it can be fairly said that the state placed great emphasis on the size of the dosage of the drugs prescribed by appellant. The state’s ease was predicated upon the testimony of two undercover police officers who said they were repeatedly provided with prescriptions for Quaa-ludes to be used for “partying” rather than for therapy. Many of their conversations with the appellant were taped by a hidden recording device. Two osteopaths testified for the state in response to hypothetical questions that the issuance of prescriptions under these circumstances did not constitute good faith. Questions of these osteopaths concerning the recommended size of dosage were first asked by the appellant during cross examination, and only then did the state start asking questions on this subject.

The size of the prescribed dosage was irrelevant to the state’s case because, under the state’s theory, any prescription for Quaaludes other than one for therapeutical purposes was not justified. While appellant may have deemed it desirable to justify the quantity of Quaaludes he prescribed, he could not avoid conviction simply by proving that the size of the dosage was medically acceptable. Because the size of the dosage was not a defense, and because the subject was first injected into the case by the defense, I doubt if it was error to refuse to permit the testimony of a pharmacist concerning average Quaalude dosages.

In any event, the excluded testimony was only to the effect that the pharmacist had sometimes seen other doctors prescribe dosages as large as those prescribed by the appellant. He knew nothing of the circumstances which had prompted the other large prescriptions, and he admitted that the larger doses had been prescribed by specialists. The appellant was not a specialist. Therefore, even if the size of the dosage was a legitimate issue, this witness would not have added anything to the appellant’s case because both of appellant’s own osteopathic witnesses testified that the size of the dosage prescribed by appellant was appropriate.

In the final analysis, the case consisted of a swearing match between the two undercover agents on the one hand and the appellant and his wife-receptionist on the other. The jury chose to believe the agents. If admissible at all, the excluded testimony was insufficiently probative to have affected the result.

I would affirm the conviction.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    In the INTEREST of C. K. G., a/k/a C. G., and J. W. G., Jr., a/k/a J. G., Minor Children.
    No. 78-1622.
    District Court of Appeal of Florida, Second District.
    Dec. 13, 1978.

      Paul W. Ferrell, St. Petersburg, for appellant.
    Robert L. Shevin, Atty. Gen., Tallahassee, and Robert J. Landry, Asst. Atty. Gen., Tampa, for appellee.
   PER CURIAM.

This is an appeal from an order permanently committing the appellant’s children to the Department of Health and Rehabilitative Services for the purpose of adoption.

The court resolved the conflicting evidence concerning the fitness of the appellant as a mother and the best interests of the children by holding that the preponderance of the evidence favored the Department. In so ruling we believe the court employed the wrong standard of proof.

The courts of Florida have consistently held in adoption cases that the evidence relied upon to permanently deprive parents of the custody of their offspring must be clear and convincing. Torres v. Van Eepoel, 98 So.2d 735 (Fla.1957); Rose v. Rose, 128 So.2d 156 (Fla. 2d DCA 1961); Roy v. Holmes, 111 So.2d 468 (Fla. 2d DCA 1959); In re De Walt’s Adoption, 101 So.2d 915 (Fla. 2d DCA 1958). Since the end result of proceedings under Section 39.11(d), Florida Statutes (1977), is the permanent severance of parental custody, the same standard should apply. Cf. Kersey v. State, 124 So.2d 726 (Fla. 1st DCA 1960).

Accordingly, the judgment is reversed, and the case is remanded so that the court can decide the case upon the proper standard of proof. In reaching its conclusion the court may consider all evidence previously admitted as well as any further evidence which may be submitted on relevant events occurring since the last hearing.

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


text:
    Steven F. OSBORNE, Appellant, v. DELTA MAINTENANCE AND WELDING, INC., Appellee.
    No. 78-1139.
    District Court of Appeal of Florida, Second District.
    Dec. 15, 1978.

      C. Daniel Akes, Lakeland, for appellant.
    Robert S. Edwards of Edwards, Sawyer & White, Plant City, for appellee.
   PER CURIAM.

Steven F. Osborne appeals from an order dismissing his third amended complaint with prejudice. We reverse.

Osborne was employed by appellee Delta Maintenance and Welding, Inc. Delta offered a payroll deduction plan whereby its employees would be covered by health insurance. Osborne accepted and was enrolled in this plan, but after being hospitalized for an appendicitis attack, he discovered that the health insurance had been can-celled because Delta had not paid the premium. Delta had, however, continued to make payroll deductions from Osborne’s pay for the insurance.

Osborne filed suit against Delta seeking compensatory and punitive damages of over $2,500. Thereafter Osborne voluntarily amended the complaint twice. Delta moved to dismiss the second amended complaint because Osborne had failed to allege a legal remedy entitling him to damages and had failed to allege sufficient facts substantiating conversion. After hearing this motion the trial judge dismissed the complaint with leave to amend. Thereafter Osborne filed his third amended complaint. Delta again moved to dismiss, this time asserting that Osborne had failed to allege a cause of action based upon fraud or misrepresentation. After a hearing, the trial court dismissed Osborne’s third amended complaint with prejudice. Osborne appeals from this order.

Unfortunately, we do not know the judge’s reason for dismissing with prejudice because the hearing on the last motion to dismiss was not reported. An examination of the complaint leads us to conclude that it does state a cause of action for breach of contract. In its brief, Delta has suggested that the actual damages arising from its alleged failure to pay insurance premiums are below the jurisdictional amount for the circuit court. There are no allegations in the complaint to support that contention and we may not consider it. Even if that were true, a better course of action would have been for the trial judge to transfer the action to county court rather than to dismiss it with prejudice. See Fla. R.Civ.P. 1.060(a).

We do agree that the third amended complaint does not state a cause of action for fraud. The elements of fraud are: 1) a false statement of fact; 2) known by the defendant to be false when made; 3) made for the purpose of inducing plaintiff to act in reliance; 4) relied upon by the plaintiff; and 5) resulting damage. See Beagle v. Bagwell, 169 So.2d 43 (Fla.1st DCA 1964); W. Prosser, Handbook of the Law of Torts, Sec. 105 (4th ed. 1971).

Osborne’s complaint fails to allege that Delta knew that the payroll deductions were not being applied to pay Osborne’s health insurance. Therefore, even if the allegations of the complaint are true, they do not exclude the possibility that Delta’s failure to pay the insurance premiums was due to inadvertence or negligence. Although the complaint fails to allege the necessary elements of fraud, the court should have allowed Osborne the opportunity to amend. Leave to amend should not be denied unless the privilege has been abused or the complaint is clearly not amendable. Matthews v. Matthews, 122 So.2d 571 (Fla.2d DCA 1960). Nothing in the record before us indicates that Osborne was apprised that his complaint failed to allege fraud until Delta’s motion to dismiss the third amended complaint.

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

GRIMES, C. J., and HOBSON and DAN-AHY, JJ., concur.

      . We also note that the third amended complaint fails to allege facts, beyond the breach of contract, which would constitute a malicious independent tort entitling Osborne to punitive damages. See J. K. Nicholas v. Miami Burglar Alarm Co., Inc., 339 So.2d 175 (Fla.1976).


author: SMITH, Acting Chief Judge.

text:
    CATHOLIC SOCIAL SERVICES, Appellant, v. STATE of Florida DEPARTMENT OF COMMERCE, BOARD OF REVIEW and Teresa C. Menza, Appellees.
    No. KK-325.
    District Court of Appeal of Florida, First District.
    Dec. 19, 1978.

      ■ Richard M. Denney of Timmel & Simpson, Fort Walton Beach, for appellant.
    No appearance for appellees.
   SMITH, Acting Chief Judge.

Appeal from an order of the Board of Review of the Department of Commerce. We allowed the Division of Employment Security to waive filing a brief in this case, upon its motion. Teresa C. Menza has made no appearance. This appeal and the proceedings below are governed by the Administrative Procedure Act, Chapter 120, Florida Statutes (1977). Section 120.-57(l)(a)2 specifically provides that the Board of Review and unemployment compensation appeals referees may conduct Section 120.57(1) proceedings, in place of a DOAH hearing officer, in unemployment compensation appeals. Sections 20.17(5)(/) and 443.07(4)(e) make orders of the Board of Review final agency action, thus subject to our review under Section 120.68. Section 20.17(5)(7), mandating review of Board orders by “petition for writ of certiorari to the District Courts of Appeal” is not to the contrary. That section was enacted in 1977, in Chapter 77-399, Laws of Florida, and reflects that, at that time, we reviewed administrative orders under the rules governing certiorari. Yamaha International Corp. v. Ehrman, 318 So.2d 196 (Fla. 1st DCA 1975). Rule 9.110, Fla.R.App.P., now dictates that we review administrative orders by appeal proceedings.

In this ease, the Board reviewed a decision of an unemployment compensation appeals referee finding that Teresa C. Men-za was discharged from her employment for misconduct connected with her work, Section 443.07(4). As a result, Mrs. Menza was disqualified for unemployment benefits, Section 443.06(1). The Board reversed the decision, holding that the referee had improperly relied on “legally insufficient” hearsay evidence related by one of Mrs. Menza’s former supervisors, Sister Winder, who was the only representative of the employer testifying at the hearing. We find, however, that the record contains competent evidence supporting the referee’s decision.

The evidence consisted solely of testimony from Sister Winder and Mrs. Menza. Sister Winder testified that she was in charge of the office where Mrs. Menza formerly worked, and had been concerned with Mrs. Menza’s conduct on a day-to-day basis. She related that she observed some incidents of Mrs. Menza’s misconduct and received reports of numerous other incidents from Mrs. Menza’s immediate supervisor and other employees. On this basis she reprimanded Mrs. Menza and counseled her, warning that Mrs. Menza would be discharged if her behavior did not improve. She testified that Mrs. Menza was discharged when the supervisors concluded that she was not responding to counseling and was continuing to misbehave. Mrs. Menza corroborated Sister Winder’s testimony to some extent, although she denied any misconduct. Mrs. Menza admitted having frequent confrontations with her immediate supervisor because she became annoyed when the supervisor inquired as to what work she was doing. She also admitted making two personal long-distance telephone calls on the office telephone after being specifically instructed not to make such calls.

Viewed as a whole; Sister Winder’s testimony provides substantial competent evidence tending to prove that Mrs. Menza engaged in a continued course of misconduct and was discharged for that reason. Sister Winder’s testimony was competent to establish the incidents of misconduct which she witnessed. And, since she had been actively involved in supervising and counseling Mrs. Menza, Sister Winder’s recitations of misconduct reported to her by other supervisors were entitled to some weight. These recitations were at least sufficient to characterize Mrs. Menza’s admitted confrontations with her immediate supervisor as argumentative and insubordinate. The Board is required to honor the referee’s findings of fact where, as here, they are based on substantial competent evidence. McDonald v. Department of Banking and Finance, 346 So.2d 569 (Fla. 1st DCA 1977); Bagwell Lumber Co. v. Florida Dept. of Commerce, Div. of Employment Security, 353 So.2d 1261 (Fla. 2d DCA 1978).

The order appealed from is REVERSED and the cause is REMANDED to the Board with instructions to reinstate the referee’s decision.

ERVIN and BOOTH, JJ., concur.


text:
    James A. WONG and Sandra Wong, Appellants, v. Karsten Bodo VON WERSEBE, Appellee.
    No. 78-190.
    District Court of Appeal of Florida, Third District.
    Dec. 19, 1978.

      Edward T. Joyce, Chicago, Ill.; William P. Cagney, III, Miami, for appellants.
    Blackwell, Walker, Gray, Powers, Flick & Hoehl and James E. Tribble and George N. Jahn, Miami, for appellee.
    Before HAVERFIELD, C. J., and BARK-DULL, J., and CHARLES CARROLL (Ret.), Associate Judge.
   PER CURIAM.

Appellants, James and Sandra Wong, seek review of an order denying their motion to intervene and to vacate peremptory writ of mandamus in an action to expunge from the public records copies of four restraining orders of the United States District Court for the Northern District of Illinois.

Petitioner-appellee, Karsten Bodo von Wersebe, owned certain real property located in Dade County conveyed to him by Select Builders of Florida, Inc. The Clerk of the Circuit Court had accepted for recording copies of four orders of the United States District Court for the Northern District of Illinois which had enjoined and restrained Select Builders and other named corporations from transferring or otherwise disposing of any assets located in the United States belonging to Select or to the other corporations. Karsten Bodo von Wersebe filed the instant petition for alternative writ of mandamus seeking to have these orders expunged from the public records of Dade County in that the orders had not been domesticated, registered or certified in Florida by any Florida court or by a United States Court having jurisdiction within Florida and, therefore, had been unlawfully recorded. On November 4, 1977 the court entered a peremptory writ of mandamus directing the Clerk to expunge these improperly recorded orders from the public records of Dade County. Thereafter, on December 6, 1977 James and Sandra Wong, appellants herein (and plaintiffs in the Illinois District Court action), moved to intervene as parties respondent and to vacate the peremptory writ and alleged that they had caused the subject restraining orders to be recorded and, thus, were the real parties in interest as opposed to the Clerk of the Circuit Court, the named respondent. At the initial hearing on their motion, the Wongs were granted the opportunity to file any necessary pleadings to support their contention for intervention and another hearing was scheduled for December 28. Meanwhile the peremptory writ of mandamus was stayed. After hearing additional argument on December 28, the trial court found that the Wongs failed to submit any proof or justification which would require the court to vacate the writ of mandamus. Thereupon, the court entered an order denying Wongs’ motion to intervene and to vacate the peremptory writ of mandamus. The Wongs appeal therefrom. We affirm.

Though there are cases where in the interest of justice leave to intervene has been granted after final decree, the general rule is that it is too late to apply for intervention after a final decree has been entered. Wags Transportation System v. City of Miami Beach, 88 So.2d 751, 752 (Fla.956).

The Wongs in the case at bar moved to intervene 31 days after the court had entered the peremptory writ of mandamus and, therefore, their motion was untimely. The trial court correctly afforded them adequate opportunity to prove that in the interest of justice they should be allowed to intervene as parties respondent. Intervention involves the exercise of the trial judge’s discretion and in absence of an abuse of that discretion, his determination will not be disturbed. Wogisch v. Tiger, 193 So.2d 187 (Fla. 4th DCA 1966). From the record presented to this court, we find that the Wongs failed to demonstrate that the trial judge abused his discretion in denying their motion to intervene. See e. g. Leatherman v. Schwab, 98 Fla. 885, 124 So. 459 (1929) and Baskin v. State, ex rel. Tracy, 115 So. 392, 155 So. 655 (1934).

Affirmed.


text:
    MIAMI NATIONAL BANK, Appellant, v. Clifford WEINSTOCK and Mary Weinstock, Appellees.
    No. 78-239.
    District Court of Appeal of Florida, Third District.
    Dec. 19, 1978.
    Helliwell, Melrose & DeWolf and Robert J. Schaffer, Miami, for appellant.
    Abrams, Anton, Robbins, Resnick, Schneider & Mager and Gary M. Farmer, Hollywood, for appellees.
    Before HAVERFIELD, C. J., and HEN-DRY, J., and CHARLES CARROLL (Ret.), Associate Judge.
   PER CURIAM.

This appeal questions the correctness of an amended final summary judgment as to Count I entered by the Circuit Court of Dade County, Florida, in favor of plaintiffs, in an action for declaratory judgment and other relief.

Plaintiffs are holders and payees of a certain certificate of deposit issued by the defendant, Miami National Bank in the face amount of $225,000.00 and bearing interest at the rate of 9V4% per annum. The certificate was issued October 31, 1974, and matured two years later on October 31, 1976. A dispute arose between the parties as to whether or not the certificate of deposit was automatically renewed on the same terms for an additional two year period. The provisions in the certificate of deposit out of which the dispute arose is as follows:

“This certificate shall be automatically renewed at maturity for successive periods of the original term unless presented for payment by the payee within ten days after the expiration of the original period. The bank reserves the right not to renew this certificate at the expiration of the original period or any renewal period upon mailing to the payee at his address last shown on the bank’s records a notice of its election not to renew this certificate.”

At no time prior to maturity had defendant provided plaintiffs with written notice of its election not to renew the certificate.

The points on appeal are whether the trial court erred in granting plaintiffs’ motion for summary final judgment and whether the court erred in declaring that the certificate of deposit was renewed automatically on October 31, 1976, for another period of two years at the rate of 9V4% interest per annum.

We have carefully considered the points on appeal in the light of the record on appeal, briefs and arguments of counsel, and have concluded that there is no genuine triable issue of material fact and that the plaintiffs were entitled to a judgment as a matter of law. Accordingly, the judgment appealed is affirmed.

Affirmed.


author: KEHOE, Judge.

text:
    METROPOLITAN DADE COUNTY et al., Appellants, v. DEPARTMENT OF COMMERCE et al., Appellees.
    No. 78-333.
    District Court of Appeal of Florida, Third District.
    Dec. 19, 1978.

      Stuart L. Simon, County Atty. and Amy N. Dean, Asst. County Atty., for appellants.
    Kenneth H. Hart, Jr., and Ollie L. Evans, Tallahassee, for appellees.
    Before HENDRY, BARKDULL and KE-HOE, JJ.
   KEHOE, Judge.

The appellants, plaintiffs below, Metropolitan Dade County, the Public Health Trust of Dade County, and the Miami-Dade Water & Sewer Authority, appeal from an order dismissing their complaint for declaratory judgment and injunctive relief. The complaint was dismissed with prejudice by the circuit court. We now affirm the order dismissing the complaint but remand with directions that the appellants be given an opportunity to amend their complaint to state a cause of action sufficient to accord the circuit court jurisdiction.

The sole issue is whether the circuit court had jurisdiction to entertain the appellants’ complaint for declaratory relief from adverse administrative action. We hold that the declaratory judgment and in-junctive remedy resorted to herein is applicable only in those extraordinary cases where a party has no other adequate administrative remedy to cure egregious agency errors or where a party’s constitutional rights are endangered. In such instances the circuit court has jurisdiction to entertain appropriate declaratory and in-junctive relief. Otherwise, the complaint should be dismissed without prejudice to the party’s right to judicial review from final agency action.

This appeal began as a disagreement between Metro Dade County and its subordinate agencies, the Public Health Trust of Dade County and the Miami-Dade Water & Sewer Authority, on the one side (appellants), and the Florida Department of Commerce and certain of its officials (the Department), on the other. The controversy arose over certain payments allegedly due the Department from the appellants under the provisions of the Unemployment Compensation Law (Chapter 443, Florida Statutes 1977). Specifically, it was alleged that the Department required the appellants to pay unemployment compensation contributions for former employees in various situations in which no such contributions were authorized. Although the Department asserted that the contributions were required under the provisions of Section 443.08(6), Florida Statutes (1977), the appellants denied that they were required to make any such unemployment compensation contributions under the law in these instances.

The appellants cited a number of examples in which they were required to make unemployment contributions for former employees not authorized by the law. These included cases in which: (1) the employee was still in the appellants’ employment; (2) the employee was employed by one of the appellants but his account was improperly charged to another appellant; (3) the employee was employed under a federally funded program; (4) the employee’s claim was disallowed by the Department after appeal; (5) the employee voluntarily resigned; (6) the employee was dismissed for misconduct detrimental to his employer; (7) the employee abandoned his unemployment compensation claim without notification to his employer; (8) the employee was never recently employed by any of the appellants; and (9) the employee prematurely filed his claim before separation from employment.

When no resolution was forthcoming after informal consultations between the parties, the appellants filed this action in the circuit court for a declaratory judgment and injunctive relief. Although Section 443.15, Florida Statutes (1977) expressly provided for administrative review of the Department’s action, appellants chose not to pursue this avenue of relief and filed this suit instead. Had the appellants proceeded to final agency action, they would have been entitled to judicial review in the district court of appeal pursuant to Section 120.68, Florida Statutes (1977).

The Department moved to dismiss contending that the circuit court did not have jurisdiction to entertain the complaint, citing State ex rel. Department of General Services v. Willis, 344 So.2d 580 (Fla. 1st DCA 1977), and School Board of Leon County v. Mitchell, 346 So.2d 562 (Fla. 1st DCA 1977). As a result, the circuit court found that the appellants had adequate and available administrative remedies under the Administrative Procedure Act (Chapter 120, Florida Statutes 1977) and the Unemployment Compensation Law (Chapter 443, Florida Statutes 1977) and dismissed the complaint with prejudice. The appellants’ petition for rehearing was denied and this appeal followed.

We believe that the circuit court was entirely correct in dismissing the complaint. However, we feel that the appellants should be afforded an opportunity to amend their complaint since it appears that a violation of their constitutional rights may have occurred. We are reluctant on the basis of the record before us to totally foreclose the appellants’ opportunity to show constitutional error.

We have carefully read State ex rel. Department of General Service v. Willis and School Board of Leon County v. Mitchell (both cited above). We fully concur with the rationale so eloquently expressed in those opinions that in the vast majority of cases the sole method of challenging agency action is by a petition for review in the appropriate district court of appeal after all administrative remedies have been exhausted, when those remedies are available and adequate. We fully recognize that neither opinion totally precluded resort to the declaratory judgment remedy in those extraordinary cases: (a) where the agency errors complained of are so egregious or devastating that the promised administrative remedy is too little or too late; or (b) where circuit court jurisdiction is necessary to enjoin enforcement of facially unconstitutional agency rules. Willis, 344 So.2d at 590.

We are further reminded by this court’s recent decision in Department of Transportation v. Morehouse, 350 So.2d 529 (Fla. 3d DCA 1977), that the Administrative Procedure Act cannot relegate matters of constitutional proportions to administrative agency resolution, nor can it impair judicial jurisdiction to determine constitutional disputes. See Morehouse, 350 So.2d at 533 and cases cited therein. Moreover constitutional challenges to administrative agency actions are for the courts alone to determine and are not for administrative resolution. Adams Packing Association v. Florida Department of Citrus, 352 So.2d 569 (Fla. 2d DCA 1977). Cf. Canney v. Board of Public Instruction of Alachua County, 278 So.2d 260 (Fla.1973). The administrative agency is not generally the appropriate forum in which to consider questions of constitutional import. Myers v. Hawkins, 362 So.2d 926 (Fla.1978).

Keeping these principles firmly in mind, we cannot state with certainty that appellants could not possibly show patently unconstitutional administrative action on the face of their declaratory complaint. The appellants contended in their complaint that they were deprived of due process by the actions of the Department. However inaptly drafted the complaint was, appellants should have been given an opportunity to set forth a constitutional issue sufficient to enable the circuit court to take jurisdiction.

We note that appellants never moved to amend their complaint contending instead that the necessary jurisdiction already existed. Nor have appellants seriously contended that the Department’s errors have been so devastating that the administrative remedies would be too little and too late. They have buttressed their entire claim for declaratory relief on the ground that they have suffered from unconstitutional agency action. Their claim may have merit and should be further examined.

We hasten to add that we do not intend for the circuit court to obtain jurisdiction over a declaratory complaint against an administrative agency merely because there is a transparent constitutional claim contained therein. The mere assertion of constitutional questions should not automatically entitle a party to bypass administrative channels. Gulf Pines Memorial Park v. Oaklawn Memorial, 361 So.2d 695 (Fla.1978). One who seeks a constitutional remedy has the duty of clearly and positively presenting the issue at the pleading stage and cannot simply hint at the issue in his complaint. State ex rel. Florida State Board of Nursing v. Santora, 362 So.2d 116 (Fla. 1st DCA 1978).

At most, that is what the appellants have done here. They have hinted at a constitutional question in their complaint by claiming that the Department’s actions have violated due process of law under the Florida Constitution. Appellants must do much more than that. They must present a plain statement of the ultimate facts establishing the violation of their constitutional rights. The statement must be sufficiently detailed to establish constitutional violations on the face of the complaint. Only in such a case will the circuit court have jurisdiction.

Lest there be any misunderstanding of the burden we are placing upon the appellants, we reiterate Judge Nathan’s words in Department of Transportation v. Morehouse, 350 So.2d at 533: “We admonish against attempts to evade appropriate review procedures by clothing claims for coercive relief in raiment of dubious constitutional dimensions in order to bootstrap such claims into subjects for declaratory decrees.”

We therefore affirm the order dismissing the complaint but remand with directions to afford the appellants an opportunity to allege with particularity on the face of their complaint that the agency action complained of was obviously unconstitutional. If no such allegations are forthcoming, the complaint must be dismissed with prejudice.

Affirmed in part, reversed in part and remanded with directions.

      . Although the circuit court’s original order did not expressly dismiss the complaint with prejudice, a subsequent order denying the appel-Iants’ petition for rehearing recited that the original order dismissing the complaint with prejudice “shall remain".


text:
    Dan J. BRADLEY, as Director of the Division of Pari-Mutuel Wagering of Florida, Appellant, v. TOURIST ATTRACTIONS, INC., a Florida Corporation, Appellee.
    No. 78-523.
    District Court of Appeal of Florida, Third District.
    Dec. 19, 1978.
    Robert L. Shevin, Atty. Gen., and Joseph C. Mellichamp, III, Asst. Atty. Gen., Tallahassee, for appellant.
    Sibley, Giblin, Levenson & Glaser and Marion E. Sibley, Miami Beach, for appel-lee.
    Before PEARSON, KEHOE and SCHWARTZ, JJ.
   PER CURIAM.

The appellant, who was the defendant below and is the director of the Division of Pari-Mutuel Wagering, appeals from a final declaratory judgment entered on stipulated facts which interpreted the parties’ respective rights under the now-repealed provisions of Chapters 75-42 and 75-46, Fla.Stat. (1975).

The judgment stated:

“The Plaintiff, TOURIST ATTRACTIONS, INC., filed its complaint for a declaratory judgment against the Director of the Division of Pari-Mutuel Wagering of Florida. The complaint alleges that in 1975, due to the dire financial emergency existing in horse and harness racing in Florida, it became necessary for the Legislature to afford to these tracks financial aid. Two companion bills were passed which increased the deduction from horse, harness, dog and jai-alai pari-mutuel pools to four-tenths of one percent, which was to be utilized to furnish funds to the horse and harness tracks as a relief from their daily operational expenses.

The Director of the Division of Pari-Mu-tuel Wagering refused to sanction the harness track’s deduction of $250,000 annually, as provided by Bill No. 75-46, Acts of 1975, which provides as follows: (Section 550.489, F.S.)

‘Harness horse racing; additional takeout permitted; restrictions. — In addition to the commission authorized by s. 550-37(5), a licensed Harness track operator may be permitted to withhold an additional four-tenths of one percent to be retained by the track at a rate of $1,500 per race per day, not to exceed a maximum of $250,000 in any one racing season, for use solely and exclusively for daily operational expenses of said track. The additional four-tenths of one percent shall be paid prior to any deduction permitted by s. 550.262(3) and shall be in addition to the sums mentioned therein during the term of this act. In no event shall any commission authorized by this section exceed the maximum commission as authorized by s. 550.162.’

The Plaintiff is the owner of a dog racing permit, but is licensed annually to conduct harness racing under said dog racing permit. This authority was granted by statute.

Bill No. 75-46, Acts of 1975 (550.489, F.S.), companion bill to 75-42 (550.162, F.S.), recognized the right of the Plaintiff to procure the benefit of Section 550.162, F.S., which granted to the Plaintiff a daily operational allowance of $170 per race for 105 days. (75-42)

Defending against the Plaintiff’s position, the Defendant contended that the Legislature had made an error in the enactment of Bill No. 75-46, and he averred:

‘There is an error in the numerical statutory reference made by F.S. 550.489 [Bill 75-46] in its last sentence to maximum commissions, and such numerical statutory reference, rather than reading ‘550.-162’, should read ‘550.16(2)’.’

This position of the Defendant is asserted in a counterclaim in which he asks the Court to declare that Section 550.489, F.S. (Bill No. 75-46) should read:

‘In no event shall any commission authorized by this section exceed the maximum commission as authorized by § 550.16(2).’

The Plaintiff seeks a declaration that it was entitled to the total annual allowance of $250,000, which it is clear the Legislature intended should be received by the harness track.

No real issue of fact exists. The Court is merely called on to determine whether the Legislature erroneously confused ‘Section 550.162’ with ‘Section 550.16(2)’.

The Legislature in 1977 enacted House Bill No. 2287. This bill was passed unanimously in the Senate and unanimously in the House. In this act the Legislature declared:

(House Bill 2287):

‘550. Legislative intent; harness horse tracks daily operational expense allowance. — It is hereby declared to be the intent of the Legislature that the expiration or repeal of Chapter 75-46, Laws of Florida, shall in no way alter or affect the right under said Chapter 75-46 of a harness horse racing permittee to receive the maximum daily operational expense as provided in ss. 550.162 and 550.489.’

This dispelled for all time what the Legislature’s intent was and establishes beyond conjecture that the Legislature made no error, and that it intended in Bill No. 75-46 for the Plaintiff-permittee to receive the maximum daily operational expenses as provided in Section 550.162 and in Section 550.489 (Bill No. 75-46).

It is true that the Governor vetoed House Bill 2287. However, the bill was merely an enunciation of the intention of the Legislature, and the veto does not operate to destroy the Legislature’s announcement of its intention. The Journals of the Legislature establish facts which would remain unaffected by any action which might be taken by the Chief Executive. Thus, in English versus Bryant, 152 So.2d 167 (Fla., 1963), the Journals of the Legislature were utilized to establish facts apart from an effective legislative enactment. See also Staplin versus Canal Authority, 208 So.2d 853 (DCA, 1st, 1968), in which the failure to enact legislation, as reflected by the Journals of the House and the Senate of the Florida Legislature, formed the basis for establishing legislative intent.

The Defendant placed in evidence the veto message of the Governor. In this message, the Governor administratively construes Bill No. 75-46 (Section 550.489, F.S.) as entitling the Plaintiff to receive the one-quarter of a million dollars provided for the annual benefit of the Plaintiff. Thus the Governor says:

‘If I were to allow House Bill 2287 to become law, it would provide a continuing annual windfall of over a quarter of a million dollars at public expense.’

The Governor argues that it was not the intention of the Legislature to continue past 1977 the payments due the Plaintiff of $250,000 a year as relief funds. He reasons that the 1977 relief package for harness racing supplants the $250,000 granted the Plaintiff for the years 1975 and 1976 under Section 550.489, F.S.

This message of the Governor is totally inconsistent with the position taken by the Defendant, and his opinion would bear more weight than the opinion of the Director of the Division of Pari-Mutuel Wagering, a subordinate position in the executive branch of government.

The Court, therefore, finds that the Legislature intended to adopt Section 550.162, F.S. in Bill No. 75-46 (Section 550.489, F.S.) and not Section 550.16(2), F.S. It is, therefore,

CONSIDERED, ORDERED and ADJUDGED that the Plaintiff is entitled to withhold the funds allotted to it under Section 550.489, F.S., taken in conjunction with Section 550.162, F.S., and confirmed by House Bill 2287 and the Governor’s message. . . . ”

We conclude that this judgment fairly resolved the issues presented and correctly interpreted the legislative intent. Therefore, the judgment is

Affirmed.


text:
    Julius P. ROBINSON, Appellant, v. William SPARER, M. D., Appellee.
    No. 78-540.
    District Court of Appeal of Florida, Third District.
    Dec. 19, 1978.
    Julius P. Robinson, in pro. per.
    Howard E. Barwick and David L. Wills, Miami Shores, for appellee.
    Before PEARSON, HENDRY and BARKDULL, JJ.
   PER CURIAM.

The plaintiff, Julius P. Robinson, appeals a summary final judgment for the defendant, William Sparer, M. D., in a medical malpractice action. The complaint alleged negligence in the treatment of difficulties “in the general area of the nose.” The summary final judgment was entered on the basis of a holding that the evidentiary matters before the court upon the motion demonstrated without genuine issue of material fact that the cause of action was barred by the statute of limitations. The record demonstrates without conflict that the plaintiff was aware of, and claimed damage because of, treatment and consultation with another physician more than two years prior to the filing of the complaint.

The judgment is affirmed upon the basis of Steiner v. Ciba-Geigy Corporation, 364 So.2d 47 (Fla. 3d DCA 1978); Buck v. Mouradian, 100 So.2d 70 (Fla. 3d DCA 1958); and Section 95.11(4)(b), Florida Statutes (1977).

Affirmed.


text:
    Murray R. PARIS, Appellant, v. STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, Appellee.
    No. 78-807.
    District Court of Appeal of Florida, Third District.
    Dec. 19, 1978.
    Richard P. Gumson, Hollywood, for appellant.
    Walton, Lantaff, Schroeder & Carson and George W. Chesrow, Miami, for appellee.
    Before PEARSON, KEHOE and SCHWARTZ, JJ.
   KEHOE, Judge.

Appellant, plaintiff below, brings this appeal from a final judgment entered pursuant to a directed verdict in favor of appel-lee, defendant below, at the close of appellant’s case. We affirm.

Appellant owned a 1974 Chevrolet Impala station wagon which was insured by appel-lee. Appellant entered into an agreement with John Barbati, a car salesman employed by Warren Henry Volvo Co., to sell his car. Because he was preparing to depart for Europe on an extended trip, appellant delivered possession of the station wagon to Barbati, along with the keys and the certificate of title executed in blank for the purpose of permitting Barbati to sell the car. Barbati was to deposit the proceeds of the sale into appellant’s checking account. Subsequently, Barbati sold the car and deposited his personal check for the proceeds into appellant’s checking account. Barba-ti’s check was returned for insufficient funds. Subsequently, appellant was unable to locate Barbati. Under his policy of insurance with appellee, appellant filed a proof of claim for which appellee denied coverage on the basis that no loss by theft had occurred. Appellant then brought the instant action seeking recovery against ap-pellee for his loss.

The relevant portion of appellant’s policy provides as follows:

“COVERAGE D- — Comprehensive
(1) The owned motor vehicle. To pay for loss to the owned motor vehicle except loss caused by collision . . .”
“EXCLUSIONS — SECTION II
This insurance does not apply under:
(c) Coverages D, F, G, H, J and R
(3) While the owned motor vehicle is subject to any bailment lease, conditional sale, purchase agreement, mortgage or other encumbrance, not declared in this policy;
(e) Coverages D and R to loss due to conversion, embezzlement or secretion by any person in possession of the owned motor vehicle under a bailment lease, conditional sale, purchase agreement, mortgage or other encumbrance.
DEFINITIONS — SECTION II
LOSS — “Whenever used with respect to coverages D, F, G and J means each direct and accidental loss of or damage to
(1) a motor vehicle covered by this policy.”

The cause proceeded to trial and, after appellant rested his case, both appellant and appellee moved for a directed verdict. The trial court granted appellee’s motion on the basis that there was no “loss” within the terms of the insurance policy. From the granting of this motion and the ensuing final judgment entered by the trial court appellant appeals.

Appellant’s sole point on appeal is that the trial court erred in directing a verdict for appellee. In support of this contention he argues that the trial court’s decision is in conflict with this court’s opinion in United Services Automobile Assoc. v. Park, 173 So.2d 162 (Fla. 3d DCA 1965).

Although the policy provisions in Park and the instant case are similar, in our opinion, appellant’s reliance on Park is misplaced. In Park, the insured:

“ . . . entered into a transaction with a Mr. Ferroll of Ferroll Motors for the sale of plaintiff’s automobile. Plaintiff was induced to give up possession of his automobile to Ferroll in return for a check for $800.00, a draft in the sum of $2,135.00 and the right of plaintiffs to hold the title to the automobile until the draft was paid. The draft was typed on the front of an envelope and plaintiff was told that the title certificate which he had signed in blank was enclosed in the sealed envelope on which the draft had been typed. The draft, upon due date, was presented to the bank for payment and dishonored. The envelope was opened at the time the draft was presented to the bank. It was at that time that plaintiff discovered that the envelope did not contain the title certificate, but only a blank piece of paper.” Id. at 163.

Park clearly intended to retain title to the car until the sale was consummated; however, he was deceived about what had happened during the transaction. In the instant case, appellant was not deceived about the transaction, but knowingly and voluntarily gave possession of the vehicle, the keys, and the certificate of title completed in blank to Barbati for the purpose of his selling it and, in compliance with their agreement, to deposit the appropriate amount of the proceeds of the sale into appellant’s account. In effect, in this case, Barbati may have absconded with the proceeds of the sale by not properly depositing them in appellant’s account, but he did not create a “loss” of the vehicle as that term is defined in the insurance policy. Accordingly, the trial court acted correctly in granting appellee’s motion for a directed verdict and in entering final judgment in favor of appellee.

Affirmed.


author: SCHWARTZ, Judge.

text:
    Gary E. BENTZEL, Appellant, v. The STATE of Florida, Appellee.
    No. 78-841.
    District Court of Appeal of Florida, Third District.
    Dec. 19, 1978.
    Alvin E. Entin, Miami, Manuel James, Key West, for appellant.
    Robert L. Shevin, Atty. Gen. and Jeffrey Samek, Asst. Atty. Gen., for appellee.
    Before HUBBART, KEHOE and SCHWARTZ, JJ.
   SCHWARTZ, Judge.

The defendant appeals from a judgment which denied his petition for habeas corpus and ordered his extradition to Pennsylvania. The record shows that the Governor’s rendition warrant which formed the basis of the extradition proceeding was never introduced into evidence at the hearing below. We hold, on the authority of Di Piero v. State, 300 So.2d 700 (Fla. 3rd DCA 1974) and Simpson v. Woodham, 332 So.2d 693 (Fla. 1st DCA 1976) that the warrant was indispensable, and that the failure to introduce it was fatal, to the state’s case. The judgment below is therefore reversed and the cause remanded with directions to discharge the defendant.

Reversed and remanded.


author: PEARSON, Judge.

text:
    Angelique JOHNSON, by and through her natural father and next friend, Lawrence Johnson, and Lawrence Johnson, Individually, Appellants, v. PRUDENTIAL PROPERTY & CASUALTY INSURANCE COMPANY, Appellee.
    No. 78-1000.
    District Court of Appeal of Florida, Third District.
    Dec. 19, 1978.

      G. E. Petrie, Jr., Coconut Grove, Mona Frommell, Coral Gables, for appellants.
    Wicker, Smith, Blomqvist, Davant, McMath, Tutan & O’Hara and Richard A. Sherman, Miami, for appellee.
    Before PEARSON, HENDRY and BARKDULL, JJ.
   PEARSON, Judge.

The appellants are an infant daughter, who brought suit through her natural father and next friend, and the father, individually. The father and daughter appeal a judgment of the trial court holding that the daughter (pedestrian) and her father, the plaintiffs, are not entitled to recover the deductible portion of personal injury protection benefits from the defendant insurer of a tort-feasor.

The basic facts are not in dispute. The father took out an automobile insurance policy on his own car. This policy had a $2,000 personal injury protection deductible provision. His young daughter was á pedestrian when hit by a car insured by the appellee Prudential Property & Casualty Insurance Company. Prudential paid the father its liability limits of $15,000. The father and daughter then brought this action against Prudential to recover the $2,000 personal injury protection section of the father’s policy. The trial court ruled that Section 627.739, Florida Statutes (1977), precluded recovery by the father on behalf of his daughter of the $2,000 deductible portion of personal injury protection benefits.

The appellants, having failed to show any reason that the statute does not apply, we find no error. The judgment of the trial court is affirmed.

Affirmed.

      . “627.739 Personal injury protection; optional limitations; deductibles, optional methods of payment for repair work. — In order to prevent duplication with other private or governmental insurance or benefits for senior citizens and others with access to such insurance or benefits, each insurer providing the coverage and benefits described in § 627.736(1) shall offer to the named insureds modified forms of personal injury protection as described in this section. Such election may be made by the named insured to apply to the named insured alone, or to the named insured and dependent relatives residing in the same household. Any person electing such modified coverage, or subject to such modified coverage as a result of the named insured’s election, shall have no right to claim or to recover any amount so deducted from any owner, registrant, operator, or occupant of a vehicle or any person or organization legally responsible for any such person’s acts or omissions who is made exempt from tort liability by §§ 627.730-627.741. Premium reductions for each modification or combination of modifications shall be adequate to recognize the reduction in hazard and shall be subject to the approval of the Department of Insurance.” [Emphasis Added]


text:
    AMERICAN FIDELITY FIRE INSURANCE COMPANY, Appellant, v. ALLIED GENERAL CONTRACTORS, INC., a Florida Corporation, Appellee.
    No. 78-1090.
    District Court of Appeal of Florida, Third District.
    Dec. 19, 1978.

      Carey, Dwyer, Cole, Selwood & Bernard and Steven R. Berger and Larry L. Cook, Miami, for appellant.
    Shutts & Bowen and Karl V. Hart and Arnold L. Berman, Miami, for appellee.
    Before HAVERFIELD, C. J., and PEARSON and KEHOE, JJ.
   PER CURIAM.

American Fidelity Fire Insurance Company, plaintiff in the trial court, appeals an order transferring this cause pursuant to Section 47.051, Florida Statutes (1975) from Dade to Pinellas County where the defendant, Allied General Contractors, Inc., maintains its principal place of business.

Allied General Contractors, Inc., as general contractor, entered into a contract with the Florida State Elks Association for the construction of a hospital in Lake County. Allied subcontracted with Groover Electrical Company, Inc. to furnish and install all electrical work. American Fidelity Fire Insurance Company, as surety, issued a subcontractor’s bond naming Groover as principal and Allied as obligee. Subsequently, Groover defaulted on the subcontract. Allied timely notified American of the default and requested that American fund Gro-over’s completion of the project. American agreed and Allied then submitted invoices to American through its general agent, Bond Market Corporation, in Dade County. Pursuant to these invoices American paid to Allied $101,786.22 and Allied paid American $15,000, the remaining contract funds due Groover. Thereafter, American made demand upon Allied to reimburse it for certain payments (in excess of $40,000) made on behalf of Groover. Allied refused and American filed the instant suit in Dade County against Allied for restitution, negligence, and breach of contract. Allied filed a motion to dismiss the complaint for improper venue and argued that Section 47.-051, Florida Statutes (1975) required that it be sued in Pinellas County where its offices for the transaction of business are maintained. After a hearing, the trial court treated the motion to dismiss as one to transfer under Fla.R.Civ.P. 1.060 and thereupon entered an order transferring the cause to Pinellas County which reads in pertinent part:

* * * * * *
“ORDERED AND ADJUDGED:
“1. The Defendant, Allied General Contractors, Inc. is a Florida corporation with its principal place of business in St. Petersburg, Pinellas County, Florida.
“2. The Defendant, Allied General Contractors, Inc. pursuant to Section 47.-051, Florida Statutes, should be sued in the county in which such corporation has and usually keeps an office for transaction of its customary business (Pinellas County) absent a showing of circumstances permitting the Plaintiff to sue such Defendant in a place other than Pinellas County, Florida (e. g. a debtor-creditor relationship, which might permit Plaintiff to sue for monies due, in the county in which Plaintiff resides). There has been no such showing here.”
* * * * * *

American appeals and basically contends that the circumstances demonstrate the existence of a debtor-creditor relationship which under the holding in M. A. Kite Co. v. A. C. Samford, Inc., 130 So.2d 99 (Fla. 1st DCA 1961) permits it to bring the suit in Dade County where its general agent’s place of business is located. Inasmuch as Allied maintains no offices for the transaction of business in Dade County and there is no property in litigation, the determinative question is whether the circumstances illustrate that the cause of action accrued in Dade County.

American argues that all demands for payment by Allied were made from Dade County and the monies paid to it by Allied were paid to its attorneys in Dade County; therefore, these transactions which gave rise to the debtor-creditor relationship between the parties required the payments be made in Dade County. American then cites to the following holding in M. A. Kite Co. v. A. C. Samford, Inc., 130 So.2d 99, 101 (Fla. 1st DCA 1961) as authority in support of its argument that venue is properly laid in Dade County:

* * * * * *
. . where a contract involves the payment of money and no place of payment is expressly agreed on, it may be implied that payment is to be made where the payee resides or has an established place of business, and where payment under the contract may be made. Where there is an express promise to pay, and no place of payment is stipulated, the debtor should seek the creditor unless otherwise provided or agreed. In such cases the cause of action accrues where the default occurred, though it be in the county where the plaintiff resides, and the action may be maintained in such county for the defendant’s breach.”
* * * * * *

Nevertheless, American’s position is sustainable only if, in fact, a debtor-creditor relationship exists between defendant Allied and plaintiff American and the promise sued on is for the payment of money. James A. Knowles, Inc. v. Imperial Lumber Company, 238 So.2d 487, 489 (Fla. 2d DCA 1970). Critical for determination of proper venue is the place where the contract calls for performance and in the debtor-creditor relationship payment of the debt is the performance, the place of which is the residence of the payee (i. e. the place of payment). James A. Knowles, Inc., supra.

After an examination of the record in the case sub judice, we find no debtor-creditor relationship. The gravamen of American’s complaint is the failure of Allied to perform in accordance with the terms of the subcontract and the bond. The instant cause not being on a promise to pay monies owed, unpaid and payable, but rather a suit for breach of contract and for a tort to recover unliquidated damages, we find no error in the entry of the order transferring the action to Pinellas County. Cf. James A. Knowles, Inc., supra, and American Intern. Food Corp. v. Lesko, 358 So.2d 250 (Fla. 4th DCA 1978).

Affirmed.

      . a New York corporation

      . to be placed in trust for claimants

      . “47.051 Actions against corporations
      “Actions against domestic corporations shall be brought only in the county or district where such corporation has or usually keeps an office for transaction of its customary business, or where the cause of action accrued, or where the property in litigation is located . . .”


author: BERANEK, Judge.

text:
    PACE CARPET MILLS, INC., a Foreign Corporation, Appellant, v. LIFE CARPET AND TILE COMPANY, INC., a Florida Corporation, Appellee.
    No. 77-862.
    District Court of Appeal of Florida, Fourth District.
    Dec. 20, 1978.
    Christopher H. Cook, of Winters, Brack-ett, Lord & Held, West Palm Beach, for appellant.

      Robert C. Furr, Boca Raton, for appellee.
   BERANEK, Judge.

This is an interlocutory appeal by defendant from an order relating to jurisdiction over the person. Plaintiff sued defendant, an out-of-state corporation, and effected service of process pursuant to § 48.193, the Florida Long-Arm Statute. Defendant made a special appearance and filed a motion asserting that, “under the circumstances of the case presented,” there is no jurisdiction over the defendant’s person. The trial court denied the motion. Neither party submitted affidavits, testimony or any other proof at the hearing on the motion.

The facts as alleged in the complaint are that the plaintiff was a Florida corporation in the business of installing carpets. The defendant was engaged in manufacturing and selling carpets and held itself out to the public as a supplier of carpets. It is alleged that the defendant corporation had a local distributor in the State of Florida and that this local distributor effected a sale between plaintiff and defendant. It is specifically alleged that the defendant corporation shipped to the plaintiff corporation 8,000 square yards of carpet and that the plaintiff purchased said carpeting on a cash-on-delivery basis for the sum of $17,-704.83. Plaintiff alleges that the carpeting was defective and that the defendant breached its implied warranties of fitness and merchantability. As a result of these breaches, plaintiff claimed damages for the value of the carpeting and for the cost of replacing carpeting already installed. The complaint also asserts the defendant’s breach of warranty damaged the business reputation of the plaintiff and damages are also sought on this theory.

The statute under which plaintiff sought to effect service of process is § 48.193, which provides in part as follows: “Acts subjecting persons to jurisdiction of courts of state.

“(1) Any person, whether or not a citizen or resident of this state, who personally or through an agent does any of the acts enumerated in this subsection thereby submits that person and, if he is a natural person, his personal representative to the jurisdiction of the courts of this state for any cause of action arising from the doing of any of the following:
“(a) Operates, conducts, engages in, or carries on a business or business venture in this state or has an office or agency in this state.”

The complaint contains sufficient allegations to infer that the defendant corporation was carrying on business in Florida through a local distributor over whom it had control. AB CTC v. Morejon, 324 So.2d 625 (Fla.1975). The basic question is whether defendant had sufficient “contacts” with Florida in accordance with the due process requirements as enunciated in International Shoe Company v. Washington, 326 U.S. 310, 66 S.Ct. 154, 90 L.Ed. 95 (1945). Under the facts alleged in this case, we hold the minimum contacts test was satisfied.

Appellant next contends that the trial court erred because plaintiff did not submit affidavits or other proof in support of the factual allegations contained in the complaint. This argument has been answered in Electro Engineering Products Co. v. Lewis, 352 So.2d 862 (Fla.1977). Therein, the Supreme Court cited Dublin Company v. Peninsular Supply Company, 309 So.2d 207 (Fla. 4th DCA 1975), and set out the procedure to be followed in testing jurisdictions under the Long-Arm Statute. Plaintiff must initially allege in the complaint sufficient jurisdictional facts to show compliance with the statute. The burden then shifts to the defendant to make a prima facie showing of the inapplicability of the Long-Arm Statute. Thereafter, plaintiff is required to substantiate the jurisdictional allegations. In this case the defendant made no such showing and the allegations of jurisdictional facts in the complaint were properly taken as true for the purpose of resolving the motion to dismiss on jurisdictional grounds.

Appellant also attacks the constitutionality of the Long-Arm Statute, but these constitutional arguments are governed by Elec- tro Engineering Products Co. v. Lewis, supra, wherein the statute was specifically held to be constitutional under a similar attack. The order appealed from is, therefore, affirmed.

AFFIRMED.

ANSTEAD and DAUKSCH, JJ., concur.


text:
    UNDERGROUND SUPPLY COMPANY, INC., Appellant, v. D. H. MASON and Arminell Mason, his wife, d/b/a Mason Nursing Home and Arrow Construction & Equipment Company, Inc., a Florida Corporation, Appellees.
    No. 77-1955.
    District Court of Appeal of Florida, Fourth District.
    Dec. 20, 1978.
    J. Richard Smith, Fort Lauderdale, for appellant.
    Hal H. McCaghren, West Palm Beach, for appellees.
   BERANEK, Judge.

Plaintiff appeals from the dismissal of an action to foreclose a mechanic’s lien. The case was called for a non-jury trial and plaintiff began the presentation of evidence. While presenting the direct testimony of the first witness, an objection to an offered document was made by defendant. This objection prompted a discussion of the case between the Court and counsel. At the conclusion of this discussion the Court dismissed the matter in its entirety. We find the dismissal at this stage of the trial to have been premature and erroneous. See Rule of Civil Procedure 1.420(b); Rath Co. v. Sun Coast Fruit Company, 186 So.2d 806 (Fla. 3d DCA 1966); and Sapp v. Redding, 178 So.2d 204 (Fla. 1st DCA 1965). The order of dismissal below is reversed and the matter remanded for further proceedings.

REVERSED AND REMANDED.

DOWNEY, C. J., and DAUKSCH, J., concur.


author: STETTIN, HERBERT, Associate judge.

text:
    Lawrence S. ROBERTS and Larry Roberts, Inc., Petitioners, v. FLORIDA REAL ESTATE COMMISSION, Respondent.
    No. 78-368.
    District Court of Appeal of Florida, Fourth District.
    Dec. 20, 1978.

      Cynthia S. Tunnicliff of Spector & Tunni-cliff, Tallahassee, for petitioners.
    Howard Hadley and Kenneth M. Meer, Orlando, for respondent.
   STETTIN, HERBERT, Associate judge.

Petitioners seek review by certiorari of an order of the Florida Real Estate Commission denying their motion to quash an administrative complaint. The complaint was filed against both the individual broker, Lawrence S. Roberts, and Larry Roberts, Inc., a registered corporate broker, alleging that Roberts individually negotiated a sale of his own property to Gateley. Part of the contract of purchase and sale required Roberts to hold a $2,000 deposit “in escrow subject to this contract. . It thereafter developed the sale did not close and Gateley demanded the return of his $2,000. The complaint alleges Roberts did not return the money to Gateley because he did not have it.

These facts are claimed to be a violation of § 475.25(l)(c) and (d) F.S., a part of the real estate licensing statute condemning the failure to deliver to any person any personal property which comes into the licensee’s hands which is not his property, which he is not in law or equity entitled to retain under the circumstances, and for which demand by the person entitled has been made. Other counts in the complaint relate to the same facts.

The petitioners’ motion to quash raised various grounds but only the argument as to factual sufficiency of the administrative complaint is necessary for disposition of the case.

Section 475.26 F.S. states in part:

“The facts [in an administrative complaint] shall be alleged in concise, simple language, and shall be deemed to afford notice of the charge, if a person of ordinary understanding may reasonably be enabled to present his defense thereto

The facts alleged here do not reach the reason why the sale failed to close, and whether Roberts thereby became legally liable to return the $2,000 deposit to Gateley. If Roberts had a right to treat the deposit as forfeit he would not be liable for failing to deliver the money to Gateley. There are special conditions to the closing described in the contract of purchase and sale from which the failure to close may be presumed, but there are no concise simple allegations of fault. Without these facts a person of ordinary understanding could not be expected to prepare his defense. See Ursoleo v. Florida Real Estate Commission, 281 So.2d 532 (Fla. 2d DCA 1973), cert. den. 287 So.2d 685 (Fla.); and Sandin v. Florida Real Estate Commission, 187 So.2d 355 (Fla. 2d DCA 1966).

The petition for certiorari is granted. The Order denying Motion to Quash is reversed with leave to the Florida Real Estate Commission to amend the complaint.

DOWNEY, C. J., and BERANEK, J., concur.


text:
    BROWARD COUNTY BUILDING AND CONSTRUCTION TRADES COUNCIL, United Brotherhood of Carpenters and Joiners of America, Local Union No. 1259 (AFL-CIO), Broward County Carpenters’ District Council, John W. Partridge and Dennis Walton, Appellants, v. HARDIN CONSTRUCTION COMPANY, INC., and International Union of Operating Engineers, Local 675, Appellees.
    No. 78-657.
    District Court of Appeal of Florida, Fourth District.
    Dec. 20, 1978.
    Joseph H. Kaplan, Joseph C. Segor, and Joel V. Lumer of Kaplan, Dorsey, Sicking & Hessen, Miami, for appellants.
    E. Clay Shaw, Jr. of Huebner & Shaw, P. A., Fort Lauderdale, and J. Roy Weathers-by of Powell, Goldstein, Frazer & Murphy, Atlanta, Ga., for appellee Hardin Const. Co., Inc.
   PER CURIAM.

This is an appeal from several temporary injunctions entered during a labor dispute between the parties. In an order of March 15, 1978, the trial court enjoined the appellants from obstructing or interfering with free ingress and egress to and from the property of appellee. We find no error in this ruling. However, a further provision of the March 15 order prohibited:

B. Establishing, permitting and/or maintaining more than two (2) pickets per each aforementioned Defendant at any one time at any one entrance to Plaintiff’s property on In-verrary Boulevard, Broward County, Florida and such picketing shall be limited to the entrances of Plaintiff’s property.

We agree with appellants that there was no evidence to authorize this restriction upon appellants’ right to picket the job site. We find no other error. Accordingly, that portion of the trial court’s order of March 15, 1978, limiting the number and location of pickets as set out above is hereby stricken and • the orders appealed are affirmed as modified.

ANSTEAD, MOORE and BERANEK, JJ., concur.


text:
    David Lee COTTRILL, Appellant, v. STATE of Florida, Appellee.
    No. 78-733.
    District Court of Appeal of Florida, Fourth District.
    Dec. 20, 1978.
    Robert G. Ferrell, III, and Bruce W. Jaco-bus of Ferrell & Jacobus, Melbourne, for appellant.
    Robert L. Shevin, Atty. Gen., Tallahassee, and Joy B. Shearer, Asst. Atty. Gen., West Palm Beach, for appellee.
   WETHERINGTON, GERALD T., Associate Judge.

Appellant, David Lee Cottrill, appeals an order withholding adjudication and placing him on five years’ probation entered pursuant to a jury verdict finding him guilty of committing a sexual battery on his 16 year old step-daughter. He contends that the circuit court erred in admitting into evidence over objection the testimony of a state’s witness, Reverend Lawrence Reynolds, a minister of the Church of God of the Community Church of God of Melbourne, Florida. This witness testified that appellant admitted to him that he had committed the alleged crime.

Appellant contends that the circuit court erred in admitting Reverend Reynolds’ testimony in violation of the privilege contained in Section 90.241, Florida Statutes (1977).

Section 90.241, Florida Statutes (1977) states, in pertinent part, as follows:

(1) No minister of the gospel, no priest of the Catholic Church, no rector of the Episcopal Church, no ordained rabbi, no practitioner of Christian Science, and no regular minister of religion of any religious organization or denomination usually referred to as a church, over the age of 21 years, shall be allowed or required in giving testimony as a witness in any litigation, to disclose any information communicated to him in a confidential manner, properly entrusted to him in his professional capacity, and necessary to enable him to discharge the functions of his office according to the usual course of his practice or discipline, wherein such person so communicating such information about himself or another is seeking spiritual counsel and advice relative to and growing out of the information so imparted.
(4) It shall be the duty of the judge of the court wherein such litigation is pending, when such testimony as herein prohibited is offered, to determine whether or not that person possesses the qualifications which prohibit him from testifying to the communications sought to be proved by him.

In a hearing conducted outside of the jury’s presence, Reverend Reynolds testified that the incriminating statements were made to him in a marriage counseling session with appellant and his wife and that he did not consider the communication as either confidential or spiritual. He further testified that appellant was not a member of his church and did not attend church services. Other members of appellant’s family did attend church services although they were not members of the church.

Appellant sought leave to testify that the incriminating communications were made during the course of spiritual counseling within the meaning of the above statute. The circuit court refused to permit this testimony, holding that the state had laid the necessary predicate for the admissibility of the testimony of Reverend Reynolds.

The circuit court erred in refusing to hear appellant’s testimony. Section 90.241, Florida Statutes, quoted above specifically requires in subparagraph 4 that the judge shall determine whether the qualifications for the privilege have been met. To do this, it is necessary for the judge to hear all relevant evidence on the issues involved before making his finding. This is consistent with the general principle that where a claim of privilege is involved each party must be allowed to present evidence relevant to the claim of privilege. See Leithauser v. Harrison, 168 So.2d 95 (Fla.2d DCA 1964).

The order appealed from is therefore reversed and the cause is hereby remanded to the circuit court for further proceedings consistent with this opinion.

REVERSED and REMANDED.

ANSTEAD and LETTS, JJ., concur.

      . Section 90.241, Florida Statutes, was repealed effective July 1, 1978, after the communication in question was made. See Ch. 76-237, Laws of Florida, Sections 2 and 8. This privilege in reworded form has been retained in Section 90.505 of the new Florida Evidence Code effective July 1, 1979. See Ch. 78-379, Laws of Florida, 1978.


author: MILLS, Judge.

text:
    In the Interest of S. E. B., a child.
    No. KK-20.
    District Court of Appeal of Florida, First District.
    Dec. 20, 1978.
    Michael J. Minerva, Public Defender, and Janice G. Scott, Asst. Public Defender, for appellant.
    Robert L. Shevin, Atty. Gen., and A. S. Johnston, Asst. Atty. Gen., for appellee.
   MILLS, Judge.

S.E.B. appeals an order of adjudication of delinquency and urges the trial court erred in denying his motion to dismiss the delinquency petition since it was not filed within thirty (30) days from the date the complaint was referred to the intake office. Fla.R. Juv.P. 8.110(e) and Section 39.05(7), Florida Statutes (1977). We agree and reverse.

S.E.B. was taken into custody for an armed robbery on December 26, 1977. The complaint based on this conduct was filed with the appropriate intake officer as required by Section 39.03(2) Florida Statutes (1977) on December 27, 1977. On January 11, 1978, an indictment was returned against S.E.B. alleging that he had committed a robbery with a weapon. S.E.B.’s motion to dismiss the indictment was granted by the circuit court March 27, 1978 on the basis that the indictment was insufficient to charge a juvenile with a criminal offense. The delinquency petition was filed April 24, 1978 (118 days after the complaint was filed with the intake officer). S.E.B. moved to dismiss the delinquency petition as untimely-

Section 39.05(7), Florida Statutes (1977) provides:

(7) On motions by or in behalf of a child, a petition alleging delinquency shall be dismissed with prejudice if it was not filed within 30 days from the date the complaint was referred to the intake office.

Fla.R.Juv.P. 8.110(e) contains a similar provision. Under Section 39.05(7), the delinquency petition was untimely.

The state contends the petition was timely because it was filed within thirty days of the dismissal of the defective indictment. The state further asserts that the juvenile court was divested of jurisdiction from the time the indictment was returned until it was dismissed. We disagree.

Jurisdiction of the juvenile court attaches when the child is taken into custody or when the summons is served, whichever first occurs. Section 39.06(7), Florida Statutes (1977). Jurisdiction may be divested following a waiver hearing as provided by Section 39.02(5)(a), Florida Statutes (1977). No waiver hearing was held herein. Or, jurisdiction may be divested when an indictment is returned against a child as set forth in Section 39.02(5)(c), Florida Statutes (1977). That section provides:

(c) A child of any age charged with a violation of Florida law punishable by death or by life imprisonment shall be subject to the jurisdiction of the court as set out in s. 39.06(7) unless and until an indictment on such charge is returned by the grand jury, in which event and at which time the court shall be divested of jurisdiction under this statute and the charge shall be made and the child shall be handled in every respect as if he were an adult. . . . (Emphasis supplied)

Jurisdiction herein was not divested by virtue of the indictment. As previously noted, the indictment alleged that S.E.B. committed robbery with a weapon. This offense is not punishable by life imprisonment, but rather is punishable by a maximum term of imprisonment of thirty years. Sections 812.13(2)(b) and 775.082(3)(b), Florida Statutes (1977). Since the juvenile court was not divested of jurisdiction, the delinquency petition was required to be filed within thirty days from December 27, 1977. Even if the thirty day period could be considered to have been tolled by virtue of the defective indictment, the delinquency petition was still untimely. There was no reason for the thirty day period to start anew after the dismissal of the defective indictment.

The adjudication of delinquency is reversed with directions that S.E.B.’s motion to dismiss the delinquency petition as untimely be granted.

BOYER, Acting C. J., concurs.

BOOTH, J., dissents without opinion.


text:
    Carlton VARNES, Petitioner, v. Louie L. WAINWRIGHT, Secretary, Department of Corrections, the State of Florida, et al., Respondents.
    No. LL-489.
    District Court of Appeal of Florida, First District.
    Dec. 20, 1978.
    Carlton Varnes, in pro. per.
    No appearance required of respondents.
   SMITH, Acting Chief Judge.

By petition for habeas corpus Varnes demands that the Clerk of the Circuit Court of Columbia County receive and docket his timely notice of appeal from a circuit court order denying his motion to vacate and set aside the judgment of his conviction, Fla.R. Cr.P. 3.850. The clerk returned Varnes’ notice of appeal to him because it was not tendered with the prescribed filing fee.

Rule 7 of the Internal Rules of this Court, adopted June 3, 1974, provides:

The Clerk of this Court shall file and docket each certified copy of notice of appeal from an order entered on a motion for relief under the provisions of Rules of Criminal Procedure, Rule 3.850, without the payment of any fee or costs, in like manner and to the same extent as in habeas corpus proceedings or appeals therefrom, arising out of, or in connection with criminal causes or convictions as is now provided in Florida Appellate Rule 2.2b(6) [as amended in Fla.R.Jud.Admin. 2.040(b)(3)].
No clerk or trial court in this district, from which an appeal may be taken to this Court from an order entered on a motion for relief under Rules of Criminal Procedure, Rule 3.850, shall require the payment of any fee or any costs upon the filing of any such notice of appeal, but he shall file any such notice of appeal in the cause from which the appeal is taken and transmit a certified copy thereof to the Clerk of this Court with advice that, in accordance with this rule, no filing fee was deposited.

Our Rule 7 was adopted pursuant to Section 35.07, Florida Statutes (1977), which authorizes us, subject to the Supreme Court’s rulemaking power, to “make such regulations as necessary for the internal government of the court.” Rule 7 is not inconsistent with Fla.R.Jud.Admin. 2.040(b) (3), concerning internal government of the district courts of appeal, and providing:

“The payment of the fee or any costs shall not be required in habeas corpus proceedings or appeals therefrom, arising out of or in connection with criminal actions.”

The clerk of the circuit court no doubt acted without knowledge of this court’s internal Rule 7, which was previously distributed but is now more formally published by this opinion. The clerk of this court will docket Varnes’ appeal and the clerk of the circuit court will forthwith transmit the record in accordance with Fla.R.App.P. 9.140(g).

The prayer of the petition is GRANTED.

ERVIN and BOOTH, JJ., concur.


text:
    J. C. GISSENDANER, Appellant, v. George RICH et al., Appellees.
    No. JJ-452.
    District Court of Appeal of Florida, First District.
    Dec. 22, 1978.
    Rehearing Denied Jan. 12, 1979.
    O. E. Adams, Sr., Pensacola, for appellant.
    Donald H. Partington of Clark, Parting-ton, Hart & Hart, Pensacola, for appellees.
   PER CURIAM.

Appellant claims the trial court erred in denying his foreclosure suit against appel-lee’s home. The record reveals that appel-lees’ decedent had granted a mortgage on the home as security for a retail installment sales agreement she signed in connection with a home improvement contract. The trial court denied the complaint in part because the home improvement contractor had failed to obtain a signed completion certificate for the repairs, which is required by “The Home Improvement Sales and Finance Act”, Section 520.60 et seq., Florida Statutes (1977). We affirm on that ground. Section 520.81(1) clearly states that the contractor “shall prepare a certificate which shall be signed by both parties.” Accordingly, the judgment is AFFIRMED.

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


author: BOOTH, Judge.

text:
    Marianne McDOWELL, Appellant, v. SCHOOL BOARD OF SUWANNEE COUNTY, Florida, Appellee.
    No. KK-236.
    District Court of Appeal of Florida, First District.
    Dec. 22, 1978.

      Patricia A. Renovitch, Tallahassee, for appellant.
    William Slaughter, II, Live Oak, for ap-pellee.
   BOOTH, Judge.

This cause is before us on appeal from final administrative action of the School Board of Suwannee County [Board] wherein the Board by a three-to-two vote denied appellant a hearing with regard to the rejection by the Board of the Superintendent’s nomination of appellant for a continuing contract.

Appellant has been employed by appellee as an annual contract teacher for the years 1975 through 1978. In 1978, Superintendent of Schools, Verna L. Bass, nominated appellant for appointment to a continuing contract beginning with the 1978-79 school year. The nomination was based upon three consecutive years of service in the Suwannee County School District and a satisfactory performance during that time. At the April 18, 1978, meeting, the Board rejected the Superintendent’s nomination of appellant for a continuing contract and instead proposed retaining appellant on a fourth-year annual contract. The Superintendent again nominated appellant for appointment to a continuing contract. At its meeting on May 11, 1978, the Board withdrew its offer of a proposed fourth-year annual contract and again rejected the Superintendent’s nomination for appointment of appellant to a continuing contract. No “good cause” within the meaning of Florida Statute § 230.23(5)(c) was given for the rejection of appellant’s nomination. Appellant’s written request for an explanation of the rejection was denied. On June 7, 1978, the Board issued its order denying appellant’s request for a hearing.

The issue before this Court is whether the Board has departed from the essential requirements of law, as more specifically set forth in § 230.23(5)(c), by refusing to provide the nominee for a continuing contract with reasons for the nominee’s rejection and opportunity for hearing and response to the reasons cited. Florida Statute § 230.-23(5)(c) provides the Board shall:

“(5) PERSONNEL. — Designate positions to be filled, prescribe qualifications for those positions, and provide for the appointment, compensation, promotion, suspension, and dismissal of employees as follows, subject to the requirements of chapter 231:
* * * * * *
(c) Appointment of instructional staff.— Act not later than 6 weeks before the close of the post school conference during any year on the nominations by the superintendent of supervisors or principals; act not later than 4 weeks before the close of the post school conference during any year on the nominations by the superintendent of all other members of the instructional staff. The school board may reject for good cause any supervisor, principal, other member of the instructional staff, or other employee nominated. In case the third nomination by the superintendent for any position be rejected for good cause, the said school board shall then proceed on its own motion to fill such positions.” (e. s.)

Florida Statute § 231.36(3)(a) provides that the Board shall issue a continuing contract to the teacher meeting all of the requirements set forth in that statute, as follows:

“(3)(a) The school board of each district shall provide continuing contracts as prescribed herein. Each member of the instructional staff, excluding supervisors and principals, in each district school system, except in districts operating under local, special or general tenure laws with stated population application, who:
1. Holds a regular certificate based at least on graduation from a standard 4-year college, or as otherwise provided by law;
2. Has completed 3 years of service in the same district of the state during a period not in excess of 5 successive years, such service being continuous except for leave duly authorized and granted;
3. Has been reappointed for the fourth year; and
4. Has been recommended by the superintendent for such continuing contract based on successful performance of duties and demonstration of professional competence
shall be entitled to and shall be issued a continuing contract in such form as may be prescribed by regulations of the state board.”

Under the foregoing statutes, a nominee for a continuing contract, as opposed to an annual contract, has an earned status which entitles that nominee to a statement of good cause for the Board’s rejection of the nomination. Incident to the requirement that the nominee be informed of the reasons for the Board’s rejection is the right to respond and to request a hearing. The annual contract signed by appellant in this case does not waive or otherwise relieve the Board of this statutory obligation.

Accordingly, final agency action herein reviewed is REVERSED, and the cause REMANDED for further proceedings consistent herewith.

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


author: BOYER, Judge.

text:
    Lawrence ALLEN, Appellant, v. STATE of Florida, Appellee.
    No. EE-105.
    District Court of Appeal of Florida, First District.
    Dec. 22, 1978.

      William D. Pridgeon, of Scruggs, Carmichael, Long, Tomlinson, Rowcow, Pridgeon, Helpling & Young, Gainesville, E. C. Deeno Kitchen and Thomas M. Ervin, Jr., of Ervin, Varn, Jacobs, Odom & Kitchen, Tallahassee, for appellant.
    Robert L. Shevin, Atty. Gen., and A. S. Johnston, Asst. Atty. Gen., for appellee.
   BOYER, Judge.

Appellant seeks reversal of an adverse judgment and resulting sentence following a jury trial at which the jury returned a verdict of guilty of manslaughter.

In September of 1975 at 1:00 in the morning a collision occurred at an intersection in a residential area of Gainesville. Appellant and one Alderman were in a borrowed Dodge Demon. The other vehicle involved in the accident was driven by the deceased, George Welsch. There were no eyewitnesses to the accident. There was a dispute between appellant and Alderman as to who was driving the Dodge at the time of the accident. Appellant claimed that Alderman was driving while Alderman testified that appellant was driving. After the accident appellant was found in the back seat on the right side and Alderman was in the front seat on the right side. Alderman testified at the trial that appellant had planned to take the car out on Newberry Road and “do it in the top” or “floor it”. He further testified that appellant turned North onto Northwest 18th Street and at the first intersection turned the car’s “lights off to see if lights were coming in the opposite direction”; that as they approached the second intersection Alderman saw a car coming from the East and yelled appellant’s name; that when they went through the first intersection they were traveling approximately 20 miles per hour and that when they went through the second intersection the Dodge was traveling at least 50 or 60 miles per hour. Alderman testified that he did not know whether or not appellant had turned his lights back on and further that to Alderman’s knowledge appellant never applied his brakes. Alderman admitted that he had told a police officer, Mike Barber, after the accident that he (Alderman) was the driver of the vehicle and that he had told others the same thing the next day in the hospital. Testimony was adduced from police officers and an F.B.I. agent that on the basis of hair specimens and fingerprints appellant was the driver. There was testimony that appellant and Alderman had drank beer earlier in the evening but there was no testimony that either was intoxicated.

At trial, appellant’s attorney was not allowed to elicit testimony from police officer Barber as to Alderman’s statements to him that he (Alderman) was the driver of the car at the time of the accident; the trial judge sustaining an objection to that testimony on the basis that it was hearsay. Neither was appellant allowed the benefit of testimony sought to be adduced from one David Boercker, who was called as an expert witness to testify as to the direction that the respective vehicles would move after the collision and the direction that bodies in the vehicles would move in relation to the vehicles they were in. The learned trial judge rejected Mr. Boercker’s testimony. At the conclusion of the state’s case and again at the conclusion of all the evidence appellant’s attorney moved for a judgment of acquittal on the basis that the evidence was insufficient to prove culpable negligence. Both such motions were denied.

Three points are raised on this appeal, the first being appellant’s contention that the evidence was insufficient as a matter of law to prove appellant guilty of culpable negligence and therefore guilty of manslaughter. No useful purpose will be achieved by a lengthy recitation of the evidence adduced in this case nor a discussion of the many cases discussing manslaughter committed by the culpably negligent operation of an automobile. Suffice to say that our review of the record sub judice reveals sufficient evidence to sustain the jury’s verdict and the resulting judgment and sentence here appealed.

Appellant’s second point relates to the exclusion of the proffered testimony of Mr. Boercker as an expert witness. The testimony sought of him was of particular importance because of the conflict as to which of the two occupants were the driver of the Dodge automobile. The state emphasized that although Mr. Boercker had a Bachelor of Arts degree he did not hold a Doctorate and had never before testified in court. Neither are essential to his qualifications. There must always be a first time for everyone and extensive education is not necessarily a prerequisite to expertise. In order to qualify as an expert witness one needs only to have acquired such special knowledge of the subject matter of his testimony either by study or by practical experience that he can give the jury assistance and guidance in solving a problem to which their equipment of good judgment and average knowledge is inadequate. (See 13 Fla.Jur., Evidence, § 310, et seq.; Hosbein v. Silverstein, 358 So.2d 43 (Fla. 4th DCA 1978); Seibels, Bruce & Company v. Giddings, 264 So.2d 103 (Fla. 3rd DCA 1972) and Cromarty v. Ford Motor Co., 341 So.2d 507 (Fla.1976).) The record reveals that Mr. Boercker had a Bachelor of Arts degree in Physics and as a graduate student at the University of Florida had earned 180 credit hours of Physics toward his Doctorate degree and had co-authored a paper in Physics that had been published. The state also urges that there was insufficient evidence in the record of physical facts and circumstances upon which Mr. Boercker could have based his testimony. Although Mr. Boercker testified on the proffer of his testimony that such additional facts and circumstances would be helpful, he testified that they were not essential as a basis for the testimony sought to be elicited from him. We are of the view that the learned trial judge abused his discretion in rejecting Mr. Boercker as an expert witness.

The state also seeks comfort in this court’s opinion in Wright v. State, 348 So.2d 26 (Fla. 1st DCA 1977), certiorari denied, 353 So.2d 679 (Fla.1977). However, it may find no solace there. This court held in that decision only that the evidence there adduced from the expert witness was beyond his scope of expertise. Sub judice we neither accept nor reject the testimony sought to be adduced by Mr. Boercker but only hold that it was error not to permit him to testify.

Appellant’s third point relates to the rejection of the questions sought to be propounded on cross examination to police officer Barber concerning the statements made to him by the state’s witness Alderman as to which of the occupants was the driver of the Dodge automobile. That exclusion was error. (See Baker v. State, 336 So.2d 364 (Fla.1976).

REVERSED and REMANDED for a new trial.

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


author: McCORD, Chief Judge.

text:
    CMI CREDIT INSURANCE, INC., a corporation, Appellant, v. UNITED STATES FIDELITY AND GUARANTY COMPANY, a corporation, Appellee.
    No. JJ-306.
    District Court of Appeal of Florida, First District.
    Dec. 28, 1978.
    Fred M. Johnson, of Fuller & Johnson, Jacksonville, for appellant.
    William C. Andrews, of Andrews & De-Laney, Gainesville, for appellee.
   McCORD, Chief Judge.

Appellant CMI Credit Insurance, Inc., (CMI) appeals the trial court’s decision on rehearing that an oral contract between CMI and appellee, Mr. Mobile Homes, Inc., was not enforceable against a bond on Mr. Mobile Homes which was guaranteed by appellee, United States Fidelity and Guaranty Company (USF&G). We affirm.

Mr. Mobile Homes, Inc., is a mobile home dealership licensed in Florida. The bond in question was issued pursuant to § 320.-77(11), Fla.Stat.(1975). That statute provides, in pertinent part:

“(11) Bond Annually, before any license shall be issued to a mobile home dealer, the applicant shall deliver to the department a good and sufficient surety bond, . . The bond . . shall be conditioned upon the mobile home dealer’s complying with the conditions of any written contract made by him in connection with the sale or exchange of any mobile home . . . . The bond shall be to the department and in favor of any person who shall suffer any loss as a result of any violation of the conditions hereinabove contained. . .” (Emphasis supplied.)

The terms of the bond itself provide as follows, in pertinent part:

“The condition of the above obligation [bond] is such that:
sfc He sfc * sfc %
Whereas, the above named principal is required as a condition precedent to his appointment as such dealer to deliver annually to the obligee hereto a good and sufficient surety bond for the license period for protection of any person who shall suffer loss as a result of any failure to comply with the conditions of any written contract made by such dealer in connection with the sale or exchange or any mobile home . . .” (Emphasis supplied.)

From the language of the applicable statute and the bond itself, we conclude that the bond would be applicable in this case only to losses incurred pursuant to a written contract.

The facts show that CMI suffered a loss when Mr. Mobile Homes failed to pay to CMI the proceeds from the sale of three mobile homes which belonged to CMI. The trial court correctly found that the agreement between CMI and Mr. Mobile Homes by which Mr. Mobile Homes handled the sale of the three mobile homes for CMI was an oral agreement. No written contract covering the arrangement between them was produced. CMI’s loss is not within the protection of § 320.77(11), Fla.Stat.(1975).

AFFIRMED.

SMITH and MELVIN, JJ., concur.


text:
    Willie E. WILLIAMS, Appellant, v. STATE of Florida, Appellee.
    No. KK-4.
    District Court of Appeal of Florida, First District.
    Dec. 28, 1978.
    Michael J. Minerva, Public Defender and Janice G. Scott and John D. C. Newton, II, Asst. Public Defenders, for appellant.
    Robert L. Shevin, Atty. Gen. and Wallace E. Allbritton, Asst. Atty. Gen., for appellee.
   PER CURIAM.

Appellant contends on this appeal that his final judgment and sentence for heroin possession and attempting to elude a police officer, entered pursuant to a plea of nolo contendere, must be reversed because the plea was not voluntary. After a thorough review of the record, we agree and reverse. There is ample authority for addressing the issue on direct appeal where as here that attack on the voluntariness of the plea appears on its face to be substantial. See Lovelace v. Wainwright, 352 So.2d 907 (Fla. 1st DCA 1977); Wood v. State, 357 So.2d 1060 (Fla. 1st DCA 1978). See also Bloom v. State, 290 So.2d 128 (Fla. 3d DCA 1974).

The record indicates that a great deal of confusion surrounded the giving of appellant’s plea. It appears that the officer who had investigated the drug charges against appellant had agreed to recommend that the sentence on the charge be made concurrent with any time left on appellant’s parole violation (approximately 18 months) if appellant would plead nolo contendere and cooperate with the officer in certain ongoing drug investigations. The assistant state attorney stated at the time of the plea that if appellant did not cooperate, “he could withdraw his plea and go to trial and then the judge could give him up to five years.”

Appellant did not cooperate with the investigation and subsequently came up for sentencing before a different judge not familiar with the plea arrangement. The sentencing judge made limited inquiry into the plea agreement but the full details of the agreement, including the assistant state attorney’s comment that appellant would be allowed to withdraw his plea if he did not cooperate, were not communicated to the judge. After a long dialogue between appellant, the assistant state attorney and appellant’s counsel in which the terms of the agreement were disputed, the judge appeared to cut off further discussion, stated that he would not allow appellant to withdraw his plea, adjudicated him guilty on both counts and sentenced him to a five year prison term.

It is fundamental that a plea of guilty or nolo contendere must be voluntary to be effective. Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969). On this record we cannot say that appellant’s plea was in fact voluntary. Whatever the exact plea agreement was, it is clear that the assistant state attorney agreed to allow appellant to withdraw the plea and stand trial if he did not cooperate with the investigation. It is also clear that this part of the agreement was not made known to the sentencing judge by either the assistant state attorney or appellant’s counsel. Numerous cases hold that a trial court has an affirmative duty to offer a defendant an opportunity to withdraw his plea where there is confusion or legitimate disagreement as to the terms of a plea negotiation. Reynolds v. State, 339 So.2d 714 (Fla. 2d DCA 1976); Morton v. State, 317 So.2d 145 (Fla. 2d DCA 1975); Bloom v. State, supra.

Accordingly, the judgment and sentence are reversed and the cause is remanded with directions to allow appellant to withdraw his plea and stand trial.

ERVIN, Acting C. J., MELVIN, J., and MASON, ERNEST E., Associate Judge, concur.