author: MILLS, Acting Chief Judge.

text:
    SCHOOL BOARD OF ESCAMBIA COUNTY Florida, Petitioner, v. The PUBLIC EMPLOYEES RELATIONS COMMISSION and the Escambia Education Association, Respondents.
    No. CC-245.
    District Court of Appeal of Florida, First District.
    Oct. 14, 1977.

      Michael W. Casey, III, of Muller & Mintz, Miami, Louis F. Ray, Jr., Pensacola, for petitioner.
    Curtis L. Mack, Gerald A. Williams, and Thomas W. Brooks, Tallahassee, Richard H. Frank and John J. Chamblee, Jr., of Frank & Meyer, Tampa, for respondents.
   MILLS, Acting Chief Judge.

Petitioner, School Board of Escambia County, Florida (Board), seeks review of an order of the respondent, Public Employees Relations Commission (PERC), which found that the Board had engaged in unfair labor practices in violation of Section 447.-501(l)(a) and (c), Florida Statutes (Supp. 1974), by (1) engaging in surface bargaining, (2) photographing lawful union activities, and (3) refusing to bargain in good faith on dues deductions and threatening its employees with one lump sum dues deduction. PERC ordered the Board to cease and desist from its unfair labor practices and to reinstitute dues deductions at the cost of five cents per card per month. The Board contends that PERC erred in finding that the Board had engaged in unfair labor practices. We will address each finding separately.

FAILING TO BARGAIN IN GOOD FAITH BY “SURFACE BARGAINING”.

On 22 April 1975, the respondent, Escam-bia Education Association (EEA), was designated as exclusive collective bargaining representative for a unit consisting primarily of teachers. On 23 April, the EEA and the Board met formally for the first time and EEA presented a proposed contract of 123 pages. Meetings of 13 and 20 May produced an agreement on the recognition article and interim dues deductions. No bargaining was conducted from 20 May until 1 July due to the actions of the Board. During that period of time, the EEA placed over twenty-two phone calls to the Board’s agents and the chief negotiator’s associates requesting that the chief negotiator (Dr. Moses) return the calls. Subsequent bargaining sessions were also hindered by the Board’s actions. Although the parties had agreed to certain negotiating guidelines, the Board chose to ignore some of the guidelines and required that certain procedures not included in the guidelines be followed. During the period from 1 July to 23 July, it was found that the Board was unprepared for approximately seven of the nine meetings and late to four of the meetings. The EEA declared a statutory impasse on 23 July.

At the 1 July meeting, the Board announced that it considered a significant majority of the items in the EEA’s proposed contract to be nonbargainable. These included school calendars, class size, lunch duty, promotion and transfer procedures, dismissal and layoff procedures, teachers’ aides, extra time for extra duties, and filling of vacancies. At no time during the course of negotiations prior to impasse did the Board waiver in its definition of non-negotiability, nor did it offer to bargain about the effects of its “non-negotiable” policies on the members of the unit. The Board also insisted that all proposals were part of a total “package” and could only be accepted or rejected along with the rest of the package. During the July sessions, the Board submitted language on grievance procedures which was accepted by the EEA, and representatives of both the EEA and the Board initialed the proposal. The EEA presented proposals on sabbatical and military leave that were accepted by the Board; however, Dr. Moses would not sign or tentatively agree to those sections because to do so would “break his package”. The Board refused to formally agree to its own counterproposals on retirement and insurance during maternity leave because of its package concept.

After statutory impasse was declared, the parties met with a mediator approximately five times from 13 August through 26 September. At the first meeting, the Board’s team was approximately two hours late (Dr. Moses never arrived), and was not prepared. The mediator therefore adjourned the session almost immediately. Dr. Moses also did not show up for a mediation session scheduled on 23 September. On the morning of 26 September, the Board presented a proposal touching on all issues it considered negotiable. The EEA was unable to accept the package and declared itself ready to go to the special master.

Between 26 September and 30 October, two special masters recused themselves as prejudiced by ex parte communications received from the Board. At the 23 October meeting, the EEA presented a significantly reworked proposal which included identical language from nine of the Board’s last proposals; however, Dr. Moses refused to tentatively agree to those sections because he would not “break his package” and again placed the 26 September proposal back on the table and refused to modify it.

At the beginning of November, EEA attempted to schedule two meetings with the Board. The Board did not appear at either meeting. The parties agreed to a marathon bargaining session from 28 November to 30 November. Agreement was tentatively reached subject to ratification by the Board and the employees in the bargaining unit. The Board approved the contract, but it was rejected by the employees. In the tentative agreement, salary was reduced by 3.6 percent and none of the items the Board considered non-negotiable were mentioned, such as: dismissal of employees, layoff, tenure, evaluation, scheduling of planning period, and class size, among others.

PERC concluded that whether an employer has bargained in good faith must be determined by the totality of the circumstances rather than single acts standing alone. PERC found that the Board’s stance throughout negotiations that certain major issues were non-negotiable, its insistance on a “total package agreement”, its failure to attend scheduled meetings and habitual lateness, and its failure to provide the EEA with relevant information, were inconsistent with the Board’s duty to bargain in good faith. PERC therefore concluded that the Board had violated Section 447.501(l)(c). We agree.

The Board asserts that this matter is merely one of “hard bargaining”. It points out that the EEA could not bring pressure upon the Board to make concessions because the EEA could not strike, and argues that it is not surprising that the Board used this “power advantage” at the bargaining table. We do not believe that the constitutional and legislative prohibitions against strikes by public employees were ever intended to give public employers a power advantage over their employees in contract negotiations. Strikes are prohibited to protect the public, not to circumvent the rights of public employees to meaningful collective bargaining with their employer.

PHOTOGRAPHIC SURVEILLANCE.

For a period of two or three days in August, members of the EEA picketed the Board’s central office building after having obtained a parade permit from the City of Pensacola. When the picketing began, the Board’s Director of Employee Relations directed that photographs of the picketing be taken. Two photographers took pictures that were given to the Director who testified that the photos were taken for a historical record he was compiling on labor relations. An assistant principal, a member of the Board’s bargaining team, stated that an additional reason for taking the pictures was to determine whether the picketers were violating the law. The picketers testified that the presence of the photographers increased their apprehension of reprisals from the Board for their picketing activity. The hearing officer found that the Board made no attempt to utilize the photos for retaliation.

PERC concluded that the photographic surveillance of the pickets was coercive and violated the employees’ rights to engage in union activities, and therefore was an unfair labor practice within thé meaning of Section 447.501(l)(a). We agree.

Although Florida courts have not addressed this issue, there have been numerous cases which have held such photographic activity to be an unfair labor practice under the National Labor Relations Act. N.L.R.B. v. Associated Naval Architects, 355 F.2d 788 (4th Cir. 1966); N.L.R.B. v. Rybold Heater Co., 408 F.2d 888 (6th Cir. 1969); N.L.R.B. v. Preston Feed Corporation, 309 F.2d 346 (4th Cir. 1962); Radio Industries, Inc., 101 N.L.R.B. 912 (1952). The exceptions have been where employers have taken photographs to be used as evidence in court proceedings. Larand Leisurelies, Inc. v. N.L.R.B., 523 F.2d 814 (6th Cir. 1975); Hilton Mobile Homes, 155 N.L. R.B. 873 (1965). In National Spinning Co., Inc., 174 N.L.R.B. 379 (1969), photographs were taken to provide evidence of violations of an existing injunction. The photographs were not taken to determine whether a violation had occurred, but were taken to prove that a violation had occurred. This distinction was recognized in Radio Industries, Inc., supra. In that case pictures were taken of union picketing and leaflet distribution activities in front of the plant. As justification for the photographs, the employer pointed to injunction proceedings which it had brought and its need for evidence that the union activities were not peaceful. The NLRB found that while there was justification for taking pictures of actual incidents, pictures taken of totally peaceful situations could not be justified.

In this case the Board’s asserted purposes for taking the photographs are not sufficient to justify its actions. Employees engaged in lawful union activities have a right to be free from intimidation and coercion. The fact that the photos were not actually used to retaliate against those employees who picketed does not prevent the action from being an unfair labor practice. It is the act of photographing itself which tends to intimidate and restrain, and, therefore, the act of photographing is the unfair labor practice. N.L.R.B. v. Associated Naval Architects, supra.

DUES DEDUCTIONS.

On 20 May, the EEA and the Board met and worked out an interim agreement concerning dues deductions for the remainder of the 1974-75 school year (June, July and August). The agreement provided that dues would be deducted monthly by the Board and the EEA would pay the Board $325.00 as the cost of dues deductions for the three-month period. On 15 July, at a negotiating session, the issue of the cost of dues deduction for the following school year was brought up. The Board proposed that the EEA pay the Board $12,500.00 annually for the costs of processing the dues deductions. On 16 July, EEA suggested a counter-proposal on dues deductions, whereupon the Board’s bargaining team caucused for five hours and then returned to the table with a proposal which retained the $12,-500.00 cost, permitted deductions without annual card resubmission, and mandated a lump sum deduction of dues from the teacher’s first paycheck. The Board’s subsequent proposals provided for only minimal decreases from the $12,500.00 figure, and one proposal presented a potential increase in cost to EEA (50 cents per month per deduction — a cost of $15,000.00 if all unit members authorized deductions).

When the teachers returned for the 1975-76 school year, no agreement had been reached regarding dues deductions. The Board had stopped deducting dues at the end of August, the last month covered by the interim agreement, and refused to resume the withholding of dues in the absence of a valid collective bargaining agreement. The Board further refused to consider executing a separate agreement regarding dues deductions, saying it was unwilling “to break its package” at the table.

For the previous six years, the Board had deducted monthly dues for the EEA based on the annual re-execution of authorization cards by employees; however, the Board refused to follow this practice and dues were not withheld from the paychecks of those members who executed annual dues authorization cards.

On 2 October, the Board sent a memo to all teachers indicating that the entire amount of annual dues would be deducted in one lump sum payment unless the member withdrew his dues authorization card. After the release of the memo, several teachers withdrew their authorization cards and a substantial number of teachers withdrew from the EEA. No lump sum deductions from the October paychecks were made by the Board.

At the end of September, the parties had agreed to a figure of $1,300.00 as the cost for dues deductions for the entire year (five cents per card per month) and this was incorporated into the tentative agreement reached at the end of November which was ratified by the Board but rejected by the employees in the unit.

PERC found that by refusing to bargain in good faith on dues deductions and by threatening its employees with one lump sum deduction, the Board had engaged in unfair labor practices within the meaning of Sections 447.501(l)(a) and (c).

According to PERC’s final order, the Board was not charged with failing to bargain in good faith on dues deductions or with threatening its employees by promulgating the 2 October memorandum. The complaint only alleged that the Board refused to deduct dues as required by Section 447.303, Florida Statutes (Supp.1974), thereby violating Section 447.501(l)(a). However, since the Board does not assert that the variance between the charge and the finding was error, we will not address that issue.

We agree with PERC that the Board failed to bargain in good faith on dues deductions, and that under the circumstances of this case, the memorandum on dues deductions violated Section 447.501(l)(a).

Having found the Board guilty of unfair labor practices, PERC ordered the Board to begin deducting dues from the salaries of EEA members who authorize the deductions “ . . . at a cost to the Association which the parties herein have twice found to be reasonable, i.e., five cents per card per month, until such time as changed circumstances mandate a renegotiation of the reasonable cost of dues deductions.” The Board argues that PERC erred as a matter of law in ordering the Board to implement dues deductions in the absence of a collective bargaining contract, contending that Section 447.303 only requires dues to be deducted during the term of a collective bargaining agreement. This issue is now moot. In 1977 the legislature amended Section 447.303, and it is now perfectly clear that dues deductions shall commence upon written request and shall be in force as long as the organization remains the certified bargaining agent for the employees. Chapter 77-343, § 10, Laws of Florida. Section 447.503(4)(a), Florida Statutes (Supp.1974) provides that if PERC finds that an unfair labor practice has been committed, it shall issue an order “ . requiring the respondent party to cease and desist from the unfair labor practice and to take such positive action, including reinstatement of employees with or without back pay, as will effectuate the policies of this part.” In this ease, the Commission ordered the Board to take the positive action of instituting dues deductions at a cost which the Board had previously agreed was reasonable. Under Section 447.503(4)(a), PERC had the authority to issue such an order.

The Board also urges that the hearing officer abused his discretion in failing to grant a continuance to the Board on the third day of the unfair labor practices hearing. We do not agree.

We affirm the order of PERC.

SMITH and ERVIN, JJ., concur.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    Dewey LIGHTSEY, Appellant, v. STATE of Florida, Appellee.
    No. 76-1387.
    District Court of Appeal of Florida, Second District.
    Oct. 14, 1977.
    Jack 0. Johnson, Public Defender, W. C. McLain, Asst. Public Defender, and Paul C. Helm, Legal Intern, Bartow, for appellant.
    Robert L. Shevin, Atty. Gen., Tallahassee, and Davis G. Anderson, Jr., Asst. Atty. Gen., Tampa, for appellee.
   PER CURIAM.

Appellant, Dewey Lightsey, was charged by information with grand larceny of an airboat owned by the DeSoto County Sheriff’s Department. He was tried by a jury and convicted. The trial judge adjudged him guilty and sentenced him to three years in state prison. On this appeal, appellant complains that his case was prejudiced by the state’s failure to disclose the name of one of its witnesses until the day of trial. We agree and reverse for a new trial.

Despite a defense demand for the names of all witnesses, made pursuant to Fla.R.Crim.P. 3.220, the state did not disclose the name of Gerald Lewis until the day of the trial. This was a clear violation of the Rules of Criminal Procedure; and so before allowing Lewis to testify, it was the duty of the trial court to make an adequate inquiry to determine whether the appellant was harmed or prejudiced by the state’s noncompliance. Richardson v. State, 246 So.2d 771 (Fla.1971); Johnson v. State, 312 So.2d 231 (Fla.2d DCA 1975). The court made no such inquiry. While it did look into the circumstances surrounding the state’s failure to disclose, it did not investigate the effect of that failure upon defendant’s case. Thus, unless the court’s error was harmless, and we do not believe that it was, we must reverse. Johnson v. State, supra.

Gerald Lewis’ testimony was the only testimony which corroborated that of the state’s main witness John Howell who was a codefendant in the case. Consequently although Lewis failed positively to identify the appellant, his testimony was prejudicial to appellant since the uncorroborated testimony of a codefendant is to be treated with special caution by the jury. Dupree v. State, 195 So.2d 1 (Fla.2d DCA 1967). This was particularly so in this case because there was evidence to show that Howell named appellant as a codefendant only after investigators told him that they believed there were two people involved in the crime and that they were prepared to arrest Howell’s wife if he did not name a second person.

The judgment and sentence are reversed and the case is remanded for a new trial.

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


author: OTT, Judge.

text:
    Billie NEWSOME, Appellant, v. ST. PAUL FIRE AND MARINE INSURANCE COMPANY, a corporation, and Patricia B. Messing, Appellees.
    No. 76-1976.
    District Court of Appeal of Florida, Second District.
    Oct. 14, 1977.
    John B. Cechman of Goldberg, Rubinstein & Buckley, P. A., Fort Myers, for appellant.
    Gerald W. Pierce and Patrick E. Ger-aghty of Henderson, Franklin, Starnes & Holt, Fort Myers, for appellees.
   OTT, Judge.

The court below entered a directed verdict and final judgment against the plaintiff/appellant and in favor of defendant/appellee. We reverse.

At about 10:30 p. m. on September 9, 1974 appellee/Messing parked her car in front of the Surf Club on Estero Boulevard in Ft. Myers Beach. There was evidence that Messing had consumed a “few” drinks in the midafternoon and an undetermined number of drinks before dinner that evening — in total more than three but less than ten. Almost immediately upon entering the Surf Club she was advised that her car had rolled out into Estero Blvd. Just after Messing entered the Surf Club, Stearns, operating his vehicle on Estero Blvd., noticed the Messing vehicle in the “middle of the street” blocking an entire lane of traffic. He brought his own vehicle to a stop off the street and entered the Surf Club to attempt to find the owner of the car. Howell, an acquaintance of Messing, secured Messing’s keys and he and Stearns returned to the car to remove it from the middle of the street.

The appellant — who lived across the street from the Surf Club — was walking on the opposite side of Estero Blvd. when he noticed the appellee’s vehicle drift into the road. He then noticed Stearns and Howell exit the Surf Club and attempt to push the motor vehicle (even though Howell had the keys) off Estero Blvd. which he knew to be heavily traveled. The appellant went to help. As he and the two others were pushing the car a passing vehicle struck him.

An expert testified that a car in the park position would move “very little”, i. e., a “couple of inches . . . just what slack there is in the gears.” He testified that he had never seen a car placed in the park position “pop” out of the park position on its own. He also stated that a 1968 Ford such as the Messing vehicle could, on occasion, require additional upward force on the automatic transmission lever to activate the neutral safety switch in order to start the machine. Since Howell did not testify, it was not established whether Howell tried to start the car and was unsuccessful or merely decided to push the car at the outset. All Stearns testified to in this regard was that Howell had taken the appellee’s car “out of gear” before they started to push it. There was no testimony of any defect or problem with the automobile.

The rescue doctrine is applicable. In Perotta v. Tri-State Insurance Company, 317 So.2d 104, 105 (Fla. 3d DCA 1975) the rescue doctrine was defined:

The rescue doctrine, . . . generally is that one who is injured in reasonably undertaking a necessary rescue, may recover for his personal injuries from the person whose negligence created the peril necessitating the rescue.

See Rose v. Peters, 82 So.2d 585 (Fla.1955). For the rescue doctrine to come into play the defendant must have been negligent, the person (or property) to be rescued must have been in imminent peril, and the rescuer must have acted reasonably. Without definitively answering any of these questions with reference to the facts of the instant case, we hold that the proof adduced by appellant clearly presents a jury question. Where there is any evidence upon which a jury could lawfully find for the movant’s adversary, a verdict should not be directed. Jones v. Smith, 279 So.2d 343 (Fla. 4th DCA 1973); See Tropeano v. Matthews, 281 So.2d 251 (Fla. 4th DCA 1973). The evidence falls within this standard.

The final judgment is set aside and the case is remanded for a new trial consistent with this opinion.

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


text:
    Fred Lyman BRUMBLEY, Appellant, v. STATE of Florida, Appellee.
    No. FF-217.
    District Court of Appeal of Florida, First District.
    Oct. 17, 1977.
    Michael J. Minerva, Public Defender, and Louis G. Carres, Asst. Public Defender, for appellant.
    Robert L. Shevin, Atty. Gen., and Richard W. Prospect, Asst. Atty. Gen., for appellee.
   PER CURIAM.

Appellant was found guilty by jury of three counts of robbery, was adjudged guilty and sentenced to 30 years imprisonment on each count, to run consecutively. Represented by the Public Defender, he appeals the judgments and sentences. Pursuant to Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), the Public Defender has filed a brief reviewing the proceedings and trial below and stating that he has found no arguable point of reversible error which can be raised on direct appeal in this case. He further states that, in his opinion, the evidence adduced to prove Count III is arguably insufficient; that the only evidence to support Count III was the testimony of the alleged victim who was unable to testify that appellant was one of the robbers. He points out, however, that the issue of the sufficiency of the evidence as to that count was not raised in the trial court and, therefore, may not be raised for the first time on appeal. This is correct. See State v. Barber, 301 So.2d 7 (Fla.1974).

The judgments and sentences are affirmed but pursuant to State v. Barber, supra, such affirmance as to Count III is without prejudice to appellant filing an appropriate motion in the trial court pursuant to Florida Rule of Criminal Procedure 3.850 as to adequacy of his state appointed trial counsel in failing to preserve the issue of sufficiency of the evidence to sustain the conviction under Count III.

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


author: BOYER, Judge.

text:
    Gerald A. LEWIS, as Comptroller, etc., Appellants, v. CREATIVE DEVELOPERS, LTD., a Florida Limited Partnership, Appellee.
    No. FF-418.
    District Court of Appeal of Florida, First District.
    Oct. 17, 1977.
    Robert L. Shevin, Atty. Gen., and Joseph C. Mellichamp, Asst. Atty. Gen., for appellants.
    Kenneth R. Hart, of Brown & Hart, Tallahassee, for appellee.
   BOYER, Judge.

This is an appeal from a summary judgment finding that a taxpayer, Creative Developers, Ltd. (appellee herein) does not have to pay the interest penalty set forth in Section 201.17(2)(c), Florida Statutes, on a property transaction in which it was involved.

Section 201.17, Florida Statutes, states as follows:

(1) Whoever makes, signs, issues, or accepts, or causes to be made, signed, issued, or accepted, any instrument, document, or paper of any kind or description whatsoever, without the full amount of the tax herein imposed thereon being fully paid, or whoever makes use of any adhesive stamp to denote any tax imposed by this chapter without canceling or obliterating such stamps as herein provided, shall be guilty of a misdemeanor of the second degree, punishable as provided in s. 775.082 or s. 775.083.
“(2) Any document, instrument, or paper upon which the tax under this chapter is imposed and which, upon audit or at time of recordation, does not bear the proper value of stamps shall subject the person or persons liable for the tax upon the document, instrument, or paper to:
“(a) Purchase of the stamps not affixed.
“(b) Payment of a penalty to the Department of Revenue equal to the purchase price of the stamps not affixed. This penalty is to be in addition to, and not in lieu of, any other penalty imposed by law.
“(c) Payment of interest to the Department of Revenue, accruing from the date of recordation until paid, at the rate of 1 percent per month or fraction thereof, based on the purchase price of the stamps not affixed.”

The property transaction involved herein occurred on July 31, 1973. The taxpayer paid the minimum documentary stamps on the deed and thereafter the defendant (appellant herein), Department of Revenue, notified the taxpayer that additional stamps were due. On February 14, 1974, the taxpayer filed a complaint asking for injunc-tive and declaratory relief to determine its rights and liabilities under Chapter 201 of the Florida Statutes. The trial court stayed the outcome of the case pending the Florida Supreme Court’s decision in Florida Department of Revenue v. De Maria, 338 So.2d 838 (Fla.1976) which both parties recognized as controlling.

While the matter was stayed Section 201.17(2)(c) of the Florida Statutes was enacted providing for interest on unpaid documentary stamps at the rate of one percent per month from the date of recordation. That statute became effective on June 28, 1976. Subsequently, the Florida Supreme Court decided De Maria in favor of the Department and additional documentary stamps were imposed on the deed. The lower court addressed the issue of whether or not Section 201.17(2)(c), Florida Statutes, was applicable to the transaction involved herein and on April 7,1977, the court found as follows:

“During the pendency of this litigation and during a time when this action was stayed by this Court pending the outcome of an appellate case dealing with similar facts, Section 201.17(2)(c), Florida Statutes, was enacted and became effective. Section 201.17(2)(c) contains no language stating that it is to be applied retroactively and its requirement regarding the payment of interest may not be applied to any liability for excise tax which may arise out of the transaction which is the subject of this action.”
We agree with the trial court and affirm.

It has long been the law in Florida that statutes are to be applied prospectively unless their terms clearly and unequivocally show that the intent of the legislature is that they be applied retroactively. Larson v. Independent Life and Accident Insurance Company, 158 Fla. 623, 29 So.2d 448 (1947). The most recent and most compelling statement is found in the Florida Supreme Court case of Fleeman v. Case, 342 So.2d 815, 817 (Fla.1977) which states that the law of Florida now requires “a declaration of retroactive application be made expressly in the legislation under review”. Nowhere in the statute in question is there an express statement that the statute is to be applied to taxes which were delinquent at the time of the statute’s enactment.

Although Fleeman was decided subsequent to the enactment of the legislation in question, we believe the rationale expressed therein is applicable to the case sub judice. In so deciding, we reject the Department’s argument that because the statute says the interest shall be paid from the date of rec-ordation that this evidences a legislative intent the statute be applied retroactively.

AFFIRMED.

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


author: MILLS, Judge.

text:
    E. H. N., a child, Petitioner, v. Honorable Ben C. WILLIS as Circuit Judge of the Second Judicial Circuit of Florida, in and for Gadsden County, Florida, Respondent.
    No. GG-454.
    District Court of Appeal of Florida, First District.
    Oct. 17, 1977.

      Michael J. Minerva, Public Defender, Edward L. Harvey, Asst. Public Defender, for petitioner.
    Robert L. Shevin, Atty. Gen., Wallace E. Allbritton, Asst. Atty. Gen., for respondent.
   MILLS, Judge.

By Suggestion for Writ of Prohibition, the minor contends that the adult division of the circuit court is without jurisdiction to try him as an adult on four felony charges because the juvenile division of the circuit court has not waived jurisdiction and certified the cases to the adult division for trial. We agree.

The minor was charged by separate infor-mations with two felonies. Thereafter, he was charged by a single information with two additional felonies. He moved to dismiss the informations because the juvenile division had not waived jurisdiction and certified the cases to the adult division. The adult division denied the motion to dismiss because at the time the four felonies were committed the minor was serving a sentence based on a prior felony conviction in the adult division following a waiver and certification by the juvenile division. The adult division was of the opinion that this action placed the minor in adult status under that part of Section 39.02(5)(a), Florida Statutes (1975), which provides that after entry of an order of waiver, “thereafter the child shall be subject to the jurisdiction of the appropriate court as if the child were an adult”. Further, the adult division was of the opinion that the quoted part of Section 39.02(5)(a) was particularly applicable to this case because the four felonies arose from or were closely connected with the incarceration arising out of the prior felony conviction.

Unless charged by indictment with a crime punishable by death or life imprisonment, a child must be initially charged by a delinquency petition. A. D. T., a minor v. State, 318 So.2d 478 (Fla.lst DCA 1975). The four charges against the minor were not punishable by death or life imprisonment.

Section 39.02(5)(a) provides:

“If the judge finds, after a waiver hearing as provided in s. 39.09, that any child who is fourteen [14] years of age or older and who, if an adult, would be charged with a violation of Florida law should be tried as an adult, the judge may enter an order waiving jurisdiction and certifying the case for trial as if the child were an adult, and thereafter the child shall be subject to the jurisdiction of the appropriate court as if the child were an adult.”

Under this statute, it is the case that is certified for trial as if the child were an adult. The case is the one pending before the juvenile division in which the child is charged with being delinquent by reason of an alleged violation of the law. This statute transforms the child into an adult for the sole purpose of dealing with the alleged violation pending in the juvenile division and no other. The words “and thereafter the child shall be subject to the jurisdiction of the appropriate court as if the child were an adult”, mean nothing more than that after the case is certified for trial as if the child were an adult he is thereafter to be dealt with as an adult with respect to the alleged violation certified for trial.

Therefore, a child cannot be tried as an adult on a criminal charge unless the juvenile division has first waived jurisdiction and certified the case for trial as though the child were an adult. This is necessary as to a new criminal charge although the juvenile division has previously waived jurisdiction as to an earlier criminal charge and certified the case for trial as though the child were an adult.

The Writ of Prohibition is made permanent.

McCORD, C. J., and BOYER, J., concur.


text:
    Richard A. PAYNE, Petitioner, v. Reubin O’D. ASKEW, Governor, State of Florida, and Louie L. Wainwright, Secretary, Department of Offender Rehabilitation, State of Florida, Respondents.
    No. HH-72.
    District Court of Appeal of Florida, First District.
    Oct. 17, 1977.

      Alan R. Parlapiano, Public Defender, for petitioner.
    Robert L. Shevin, Atty. Gen., Richard W. Prospect, Asst. Atty. Gen., for respondents.
   MILLS, Judge.

We deny, but without prejudice, petitioner’s. application for habeas corpus because the trial court failed to follow the procedure set forth in Section 941.10(1), Florida Statutes (1975).

A grand jury of the State of Louisiana indicted the petitioner for first degree murder. The Governor of the State of Louisiana made a demand upon the Governor of the State of Florida for extradition of petitioner to Louisiana. The Governor of Florida issued a warrant of arrest directing the Secretary of the Department of Offender Rehabilitation of the State of Florida to arrest the petitioner and to deliver him, subject to the provisions of Chapter 941, Florida Statutes (1975), to the duly authorized agent of the State of Louisiana. Petitioner was arrested and in accordance with the provisions of Section 941.10(1) was taken before a circuit judge of the Eighth Judicial Circuit.

Section 941.10(1) states:
“No person arrested upon such warrant shall be delivered over to the agent whom the executive authority demanding him shall have appointed to receive him unless he shall first be taken forthwith before a judge of a court of record in this state, who shall inform him of the demand made for his surrender and of the crime with which he is charged, and that he has the right to demand and procure legal counsel; and if the prisoner or his counsel shall state that he or they desire to test the legality of his arrest, the judge of such court of record shall fix a reasonable time to be allowed him within which to apply for a writ of habeas corpus. When such writ is applied for, notice thereof, and of the time and place of hearing thereon, shall be given to the State Attorney for the county in which the arrest is made, and in which the accused is in custody, and to the said agent of the demanding state.”

In the case before us, the trial court informed petitioner that Louisiana wanted him on a charge of first degree murder and provided petitioner with counsel, but when petitioner’s counsel informed the court that he desired to test the legality of his arrest, the court immediately heard and ruled upon the evidence concerning the legality of his arrest, failing to require him to file an application for writ of habeas corpus as required by Section 941.10(1). In addition, at the conclusion of the proceeding, the trial court gave petitioner time to apply to this Court for a writ of habeas corpus.

The latter two actions by the trial court were improper. At the initial proceeding under Section 941.10(1), the trial court is permitted to do no more than (1) inform the accused that he is wanted in another state and for what crime, (2) inform the accused that he has a right to counsel and (3) if the accused or his counsel states that he desires to test the legality of the arrest, fix a reasonable time for the filing of a petition for writ of habeas corpus and when applied for set the time and place for the hearing. The petition for writ of habeas corpus is filed in the circuit court, not the District Court of Appeal.

Although the procedure followed by the trial court was an expeditious one and although petitioner was given the opportunity to challenge the legality of his arrest and obtained an adverse ruling, we are compelled to require the trial court to comply with the procedure set forth in Section 941.10(1).

Remanded to the trial court with directions to fix a reasonable time to be allowed petitioner within which to apply for a writ of habeas corpus in the trial court and to otherwise comply with the provisions of Section 941.10(1).

McCORD, C. J., and BOYER, J., concur.


author: PER CURIAM. SMITH, Judge,

text:
    D. L. J., a child, Appellant, v. STATE of Florida, Appellee.
    No. EE-102.
    District Court of Appeal of Florida, First District.
    Oct. 18, 1977.
    Richard W. Ervin, III, Public Defender, and Michael M. Corin, Asst. Public Defender, for appellant.
    Robert L. Shevin, Atty. Gen., and Charles W. Musgrove, Asst. Atty. Gen., for appellee.
   PER CURIAM.

Affirmed.

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

SMITH, J., dissents.

SMITH, Judge,

dissenting:

The majority are of the view that the evidence was sufficient in this case to support the trial court’s finding that “the above named child did commit the offenses as alleged in the petition,” namely, attempt to enter a conveyance with intent to commit an offense therein, and loitering. I conceive that the evidence was insufficient to support the trial court’s finding in re-, spect to either count, and would therefore reverse the order appealed. Section 39.-14(1), Florida Statutes (1975); State v. Ecker, 311 So.2d 104 (Fla.1975), cert. den., 423 U.S. 1019, 96 S.Ct. 455, 46 L.Ed.2d 391 (1975).


text:
    Virginia Lightfoot POWELL, Appellant, v. George Mathews POWELL, IV, Appellee.
    No. EE-227.
    District Court of Appeal of Florida, First District.
    Oct. 18, 1977.
    Hugh T. Handley, Fort Walton Beach, for appellant.
    Gregory M. Anchors of Moore & Anchors, Niceville, for appellee.
   PER CURIAM.

Having considered the briefs and arguments of counsel, we affirm the final judgment of dissolution. Appellant’s motion for injunctive relief is granted and appellee is enjoined from taking the three minor children whom he was granted custody from the jurisdiction of the State of Florida until this opinion has become final.

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


text:
    Paul Samuel PETERSON, Appellant, v. The STATE of Florida, Appellee.
    No. 76-1171.
    District Court of Appeal of Florida, Third District.
    Oct. 18, 1977.
    Bennett H. Brummer, Public Defender and Karen M. Gottlieb, Asst. Public Defender, for appellant.
    Robert L. Shevin, Atty. Gen. and Joel D. Rosenblatt, Asst. Atty. Gen., for appellee.
    Before PEARSON, HAVERFIELD and NATHAN, JJ.
   PER CURIAM.

Affirmed. See James v. State, 334 So.2d 83 (Fla. 3d DCA 1976).


author: GRIMES, Acting Chief Judge.

text:
    Austin L. DAVIS, Appellant, v. STATE of Florida, Appellee.
    No. 77-25.
    District Court of Appeal of Florida, Second District.
    Oct. 19, 1977.

      Richard D. Mars, Lakeland, for appellant.
    Robert L. Shevin, Atty. Gen., Tallahassee, and C. Marie King, Asst. Atty. Gen., Tampa, for appellee.
   GRIMES, Acting Chief Judge.

Appellant was convicted of possession of more than five grams of marijuana in violation of Section 893.13, Florida Statutes (1975). In this appeal, he raises three points worthy of discussion.

Denial of Motion to Suppress

The testimony at the suppression hearing showed that at 1:45 a. m. a confidential informant told the police that an automobile with marijuana in it was parked at the Eastgate Liquor Lounge in Lakeland. The informant had provided reliable information in the past. The informant stated that he had seen the marijuana in the trunk a short time before. He described the make, year, and license number of the automobile. At 1:55 a. m. two police officers found the automobile at the lounge and placed it under surveillance. At 2:20 a. m. appellant and a female companion came out of the lounge and drove off in the automobile which was under observation. The police stopped the automobile at 2:30 a. m. and found marijuana in the trunk.

In view of the previous reliability of the informant, the fact that he had recently seen the marijuana in the automobile, and the corroborating circumstances observed by the officers, we believe the police had probable cause to search the vehicle. Spinelli v. United States, 393 U.S. 410, 89 S.Ct. 584, 21 L.Ed.2d 637 (1969); Aguilar v. Texas, 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723 (1964); Draper v. United States, 358 U.S. 307, 79 S.Ct. 329, 3 L.Ed.2d 327 (1959). The exigent circumstances obviated the need for a search warrant. Chambers v. Maroney, 399 U.S. 42, 90 S.Ct. 1975, 26 L.Ed.2d 419 (1970); Carroll v. United States, 267 U.S. 132, 45 S.Ct. 280, 69 L.Ed. 543 (1925). Therefore, the motion to suppress was properly denied.

Denial of Motion for Judgment of Acquittal

At the trial both arresting officers gave essentially the same testimony. After telling why they had the car under surveillance and caused it to be stopped, they related what happened at the scene. As soon as the car was stopped, the officers asked the appellant to open the trunk. He acted very nervous. The appellant asked the officers if they had a search warrant and when he was told they did not, he asked his companion to contact his attorney. He also told the officers that he did not have the key to the trunk. The officers informed the appellant that while they did not have a search warrant, they did have probable cause to believe that he was transporting contraband. They had the appellant empty his pockets and found the key to the trunk. Upon opening the trunk, the officers observed a large amount of marijuana.

The appellant contends that his motion for a directed verdict of acquittal should have been granted. He contends that in attempting to show that he had constructive possession of the marijuana, the state failed to prove that he had knowledge of its presence.

There is no doubt that knowledge is a necessary element of constructive possession. Hively v. State, 336 So.2d 127 (Fla. 4th DCA 1976); Frank v. State, 199 So.2d 117 (Fla. 1st DCA 1967); Spataro v. State, 179 So.2d 873 (Fla. 2d DCA 1965). However, knowledge may be shown by either direct or circumstantial evidence. Willis v. State, 320 So.2d 823 (Fla. 4th DCA 1975); Frank v. State, supra. We believe the facts that appellant had possession of the trunk key and attempted to conceal it were sufficiently incriminating circumstances from which the jury could infer that he knew marijuana was in the trunk and that it was in his constructive possession.

Denial of Motion for Mistrial

During redirect examination of one of the arresting officers, the following dialogue occurred in the presence of the jury:

“MR. PICKARD [prosecutor]: Were you informed by the confidential informant who the marijuana belonged to?
PRESCOTT: It was purported to belong to Mr. Davis.”

Defense counsel immediately moved for a mistrial. The court instructed the jury to disregard the question and answer, but did not grant a mistrial.

Ordinarily, a curative instruction will obviate the reception of inadmissible evidence. However, here the appellant testified that he had loaned his car to a third party earlier in the evening and did not know there was marijuana in the trunk. Except for the circumstantial evidence discussed earlier in this opinion, there was nothing before the jury which would tend to prove the appellant had knowledge of the marijuana. Therefore, the officers’ hearsay observation which implicated the appellant was particularly significant. There is no way for us to know whether this statement influenced the jury in returning its verdict of guilt, but the danger is too great. Cf. Smith v. State, 194 So.2d 310 (Fla. 1st DCA 1967). The state’s contention that the prosecutor’s question was permissibly prompted by cross-examination is without merit. The cross-examination in this regard simply established that the confidential informant did not tell the police that the appellant was present when the marijuana had been observed.

The motion for mistrial should have been granted. Accordingly, the judgment is reversed and the case is remanded for a new trial.

OTT and RYDER, JJ., concur.


text:
    Katherine Stuart JOHNSON, Appellant, v. Billy Jack JOHNSON, Appellee.
    No. 77-1394.
    District Court of Appeal of Florida, Second District.
    Oct. 19, 1977.

      Julian D. Clarkson, of Holland & Knight, Fort Myers, and C. A. Boswell, Bartow, for appellant.
    Joseph G. Bywater, of Pittman & Bywa-ter, Lakeland, for appellee.
   PER CURIAM.

The principal point on appeal is whether a court may determine conditions of parental visitation based upon a written psychiatric report without affording the adversely affected parent the right of cross-examination. We think not. Cf. Hosking v. Hosking, 318 So.2d 559 (Fla. 2d DCA 1975); McGuire v. McGuire, 140 So.2d 354 (Fla. 2d DCA 1962).

Reversed.

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


author: RAWLS, Judge.

text:
    Joe PHILLIPS, Appellant, v. STATE of Florida, Appellee.
    No. DD-15.
    District Court of Appeal of Florida, First District.
    Oct. 20, 1977.
    William R. Slaughter, of Slaughter & Slaughter, Live Oak, for appellant.
    Robert L. Shevin, Atty. Gen. and Richard L. Wilson, Asst. Atty. Gen., for appellee.
   RAWLS, Judge.

In the name of “Williams”, the state adduced evidence of collateral crimes in procuring appellant’s conviction of committing the crime of involuntary sexual battery. We reverse.

The alleged victim of the crime testified that he went to the home of appellant to locate a wallet that he had misplaced there earlier in the day. After procuring the wallet, the victim swore that, over his resistance, appellant grabbed him; dragged him throughout the house locking the doors; took him into a bedroom; pulled his pants down; slung him onto a bed; and proceeded to perform fellatio upon him. At the conclusion of the homosexual act, appellant released the victim and permitted him to ride his motorcycle home. Some three hours after he returned home, the victim told his father of the alleged attack. Appellant, in strenuously denying the victim’s testimony, testified that the victim appeared angered when he refused to allow the victim to ride his (appellant’s) motorcycle. At this point, we view a clear case of “one on one” — a classic factual dispute that our system of jurisprudence submits to a jury for resolution.

But the state was not satisfied. Over appellant’s objection, the state proffered testimony of a 15-year old witness, who stated he had voluntarily submitted to appellant’s sexual advances. This witness testified on direct examination that he had known appellant for more than a year; had visited in appellant’s home about 30 times; had a minor male friend, 16 years old, who lived in appellant’s home; and that during the witness’ visits, appellant would show the boys pamphlets that depicted “boys sucking each other off”. This witness further testified that on 10 to 15 occasions appellant grabbed him between the legs, and in response to appellant’s promise to take him on trips and to let him ride appellant’s motorcycle, he. consented to appellant’s advances on two occasions in appellant’s home. Defense counsel restricted his cross examination of this witness upon the two incidents that he testified occurred in appellant’s home and as to the witness’ voluntary consent to engage in the sexual acts. Upon re-direct, in response to the state’s inquiry as to any homosexual advances by appellant without his consent, the witness testified about a trip that he and appellant had taken to Columbus, Georgia; that appellant bought him a lot of beer, got him drunk, and “found him feeling me”.

Squarely in point is this court’s opinion in Banks v. State, 298 So.2d 543 (Fla. 1st DCA 1974); As stated therein:

“. . .A review of this record leads us to the inescapable conclusion that the singular purpose of injecting this collateral crime into the trial by the state was to prove the bad character of defendant and his propensity to commit a homosexual act.”

The judgment appealed is reversed and remanded for a new trial.

McCORD, C. J., and SMITH, J., concur.

      . Williams v. State, 110 So.2d 654 (Fla.1959).

      . The victim was 13 years old at the time of the alleged offense.


text:
    Larry R. FORD, Appellant, v. BARNACLE BILL’S SEAFOOD GALLEY, INC., Appellee.
    No. EE-6.
    District Court of Appeal of Florida, First District.
    Oct. 20, 1977.
    Dennis A. Barbarisi, Fort Walton Beach, for appellant.
    C. LeDon Anchors of Estergren, Fortune, Anchors & Powell, Fort Walton Beach, for appellee.
   PER CURIAM.

Ford’s appeal seeks review of a final judgment for damages in favor of Barnacle Bill, appellant’s tenant, resulting from delay caused by Ford in repairing the leased premises following storm damage. Having considered the errors alleged by appellant pertaining to the admission of appellee’s exhibits, denying appellant’s motion for new trial and motion for remittitur, and the admission into evidence of appellant’s exhibit, we find no error.

AFFIRMED.

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


author: MELVIN, Judge.

text:
    Ronald Charles USSERY, Appellant, v. STATE of Florida, Appellee.
    No. EE-172.
    District Court of Appeal of Florida, First District.
    Oct. 20, 1977.
    Michael J. Minerva, Public Defender, and Theodore E. Mack, Asst. Public Defender, for appellant.
    Robert L. Shevin, Atty. Gen. and Wallace E. Allbritton, Asst. Atty. Gen., for appellee.
   MELVIN, Judge.

Appellant-defendant appeals from a judgment of guilty for the crimes of possession of devices for unlawful use of a controlled substance and unlawful possession of a controlled substance. The judgment is based on a jury verdict, no error is claimed, and the same is affirmed. The trial court imposed two consecutive sentences to imprisonment at “hard labor” with no credit for jail time served.

While there is no longer any provision for a sentence “at hard labor”, such omission is not a proper basis for any assumption that those in charge of the penitentiary system cannot include hard labor as a proper part of a correctional program. McDonald v. State, 321 So.2d 453 (Fla.4th DCA 1975). Such provision in a sentence is technical surplusage and may be, and is hereby, stricken as such. However, we must reverse the sentence imposed as to Count I with directions that appellant be sentenced in compliance with Section 921.161, Florida Statutes, relating to credit for jail time served on these charges. Thus, when the first sentence has been amended, appellant will have received all the time credit benefit to which he is entitled. He is not entitled to double credit which would be the result if such time credit was allowed as to the consecutive sentence imposed as to Count II. It will not be necessary for appellant to be present before the trial court for the entry of the corrective sentence. Affirmed in part and reversed in part.

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


text:
    Clifford ASHLEY, Appellant, v. STATE of Florida, Appellee.
    No. FF-364.
    District Court of Appeal of Florida, First District.
    Oct. 20, 1977.

      Clifford Ashley, in pro per.
    Robert L. Shevin, Atty. Gen., and Charles W. Musgrove, Asst. Atty. Gen., for appellee.
   MELVIN, Judge.

Appellant-defendant appeals from an order entered by the trial court denying his motion to vacate pursuant to Florida Rule of Criminal Procedure 3.850. He now complains that his trial counsel was ineffective, that he was denied right to due process, that the information was defective, and that the prosecuting attorney’s argument was prejudicial.

Appellant had his direct appeal to this court. Ashley v. State, 341 So.2d 294 (Fla.1st DCA 1976). The record does not demonstrate ineffective trial counsel. At most, the record reflects only a difference in judgment as to proper trial tactics. Fuller v. Wainwright, 238 So.2d 65 (Fla.1970). As to all remaining points, the matters presented to the trial court via Rule 3.850 and now this court could have been raised for consideration in the direct appeal, but appellant did not do so. Appellant may not be permitted to re-hash such matters now. Stallings v. State, 319 So.2d 640 (Fla.1st DCA 1975), and Arline v. State, 303 So.2d 37 (Fla.1st DCA 1974).

Florida Rule of Criminal Procedure 3.850 was not designed or intended to serve as a second appeal vehicle upon which to bring before the trial and appellate courts unfounded charges as to the operation of the judicial process, as has occurred in this and many other cases with which our courts have been burdened. Such attempted abortive use is an ill-graced attempt to pollute the streams of justice. When lead-footed justice has come to the end of its long trail, society has a direct interest that these type unfounded extractions of time-consuming judicial labors shall come to an end.

The judgment appealed is AFFIRMED.

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


text:
    Donald O. BEAL and Alice Beal, his wife, Appellants, v. THIRD NATIONAL BANK, etc., et al., Appellees.
    No. GG-4.
    District Court of Appeal of Florida, First District.
    Oct. 20, 1977.

      Joseph M. Murasko, Fern Park, for appellants.
    Alan B. Fields, Jr. of Dowda, Hedstrom & Fields, Palatka, and Carl Bertoch, Lutz, for appellees.
   MELVIN, Judge.

Appellants-plaintiffs seek, by interlocutory appeal, reversal of an order dismissing their amended complaint as to defendant Third National Bank. The defendant had filed its motion to dismiss the second amended complaint and for a protective order. Thereafter, defendant filed supplemental motion to dismiss the complaint, alleging entitlement to the provisions of 12 U.S.C. § 94 which provides:

“Actions and proceedings against any association under this chapter may be had in any district or Territorial court of the United States held within the district in which such association may be established, or in any State, county, or municipal court in the county or city in which said association is located having jurisdiction in similar cases.”

Appellants urge that defendant bank waived its right to claim such venue benefits by first moving to dismiss the complaint on other grounds and moving for a protective order. We hold that the venue motion was filed in season. Fla.R.Civ.P. 1.140 and Vann v. First National Bank in Little Rock, 324 So.2d 94 (Fla.3d DCA 1975).

Defendant bank asserts that it has no banking facilities outside Davidson County, Tennessee. The bank timely asserted its absolute right to venue privileges pursuant to 12 U.S.C. § 94. Mercantile National Bank v. Langdeau, 371 U.S. 555, 83 S.Ct. 520, 9 L.Ed.2d 523 (1963); and Michigan National Bank v. Robertson, 372 U.S. 591, 83 S.Ct. 914, 9 L.Ed.2d 961 (1963).

AFFIRMED.

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


text:
    BOYETT’S SEPTIC TANK SERVICE, INC., and Auto-Owners Insurance Company, Appellants, v. David K. LIPHAM, Individually and for the use and benefit of United Services Automobile Association, Appellees.
    No. GG-332.
    District Court of Appeal of Florida, First District.
    Oct. 20, 1977.
    W. Christopher Hart of Clark, Parting-ton, Hart & Hart, Pensacola, for appellants.
    William R. Ptomey, Jr., Pensacola, for appellees.
   PER CURIAM.

This interlocutory appeal questions the correctness of a partial summary judgment rendered in favor of appellees.

The record on appeal fails to conclusively establish that there was no genuine triable issue of a material fact under the issues as made by the complaint and the answer thereto. Under these circumstances, appel-lees were not entitled to a partial summary judgment as a matter of law, and the trial court erred in holding to the contrary.

The partial summary judgment appealed is reversed and the cause remanded to the trial court for the purpose of receiving evidence on the issues as made by the pleadings, and rendering final judgment thereon.

Reversed and remanded.

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


text:
    EASTERN AIR LINES, INC., Appellant, v. JACKSONVILLE PORT AUTHORITY, etc., Appellee.
    No. FF-48.
    District Court of Appeal of Florida, First District.
    Oct. 21, 1977.
    Carmen L. Leon and William G. Bell, Jr., Miami, for appellant.
    Dawson A. McQuaig, Michael S. Nabi and William Lee Allen, Jacksonville, for appel-lee.
   PER CURIAM.

Eastern has filed its notice of appeal from a judgment awarding damages to Jacksonville Port Authority (JPA) resulting from Eastern’s default in complying with the terms of the lease with JPA. Having considered the record and briefs of the parties, we find no error.

AFFIRMED.

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


author: SMITH, Judge.

text:
    Calvin WILLIAMS, Appellant, v. STATE of Florida, Appellee.
    No. FF-55.
    District Court of Appeal of Florida, First District.
    Oct. 21, 1977.
    Michael J. Minerva, Public Defender, Tallahassee, for appellant.
    Robert L. Shevin, Atty. Gen., and Charles W. Musgrove, Asst. Atty. Gen., Tallahassee, for appellee.
   SMITH, Judge.

Two eye-witnesses testified they saw a man attempt a burglary and later identified a man being held by the police as the burglar. A policeman testified appellant was the person identified by the eye-witnesses. This identification evidence is sufficient to support a conviction. Johnson v. State, 249 So.2d 452 (Fla.4th DCA 1971) and Willis v. State, 208 So.2d 458 (Fla.1st DCA 1968), cert. quashed, 217 So.2d 106 (Fla.1968) are not to the contrary.

AFFIRMED.

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


text:
    Sulalie D. MIXSON, Oscar Fowler, Lucille Hobson and Shirley Ann Auvil, Appellants, v. Ray S. BRILL, Jr., as guardian of Leola T. Abel, an incompetent, Appellee.
    No. FF-154.
    District Court of Appeal of Florida, First District.
    Oct. 21, 1977.
    Gene H. Auvil, Miami, for appellants.
    Ray S. Brill, Jr., Gainesville, in pro. per.
   PER CURIAM.

Appellants filed their interlocutory appeal from an order denying their motion to dismiss appellee’s complaint. We find no substance to the complained of error. The order is

AFFIRMED.

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


text:
    Sulalie D. MIXSON, etc., Appellant, v. Guardianship of Leola T. ABEL, etc., Appellee.
    No. FF-264.
    District Court of Appeal of Florida, First District.
    Oct. 21, 1977.
    Gene H. Auvil, Miami, for appellant.
    Ray S. Brill, Jr., Gainesville, for appellee.
   PER CURIAM.

Appellant appeals an order awarding attorney fees, guardian fees and costs. Having examined the record and the briefs, we find the order entered without error.

AFFIRMED.

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


text:
    D.W.A., a juvenile, Appellant, v. STATE of Florida, Appellee.
    No. FF-334.
    District Court of Appeal of Florida, First District.
    Oct. 21, 1977.

      Alan B. Bookman of Holsberry, Emmanuel, Sheppard & Condon, Pensacola, for appellant.
    Robert L. Shevin, Atty. Gen. and Patti Englander, Asst. Atty. Gen., for appellee.
   PER CURIAM.

Having examined the record and briefs of counsel, we find no error in the lower court’s order adjudicating appellant a delinquent child.

AFFIRMED.

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


text:
    Joseph J. GALLOPO, Appellant, v. STATE of Florida, Appellee.
    No. 76-1679.
    District Court of Appeal of Florida, Second District.
    Oct. 21, 1977.
    Jack 0. Johnson, Public Defender, and David S. Bergdoll, Asst. Public Defender, Bartow, for appellant.
    Robert L. Shevin, Atty. Gen., Tallahassee, and William I. Munsey, Jr., Asst. Atty. Gen., Tampa, for appellee.
   PER CURIAM.

We affirm the judgment of the trial court, but we remand this case for resen-tencing of appellant. The present sentence does not specifically set forth the period of credit time to be allowed as Section 921.-161(1), Florida Statutes (1975), requires. Smith v. State, 310 So.2d 770 (Fla.2d DCA 1975). The appellant does not have to be present at resentencing.

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


text:
    Alphonso BELCHER, Appellant, v. STATE of Florida, Appellee.
    No. 77-55.
    District Court of Appeal of Florida, Second District.
    Oct. 21, 1977.
    Jack 0. Johnson, Public Defender, Bar-tow, and Stephen 0. Rushing, Asst. Public Defender, Tampa, for appellant.
    Robert L. Shevin, Atty. Gen., Tallahassee, and Mary Jo M. Gallay, Asst. Atty. Gen., Tampa, for appellee.
   PER CURIAM.

After reviewing the briefs and record on appeal, we find appellant has failed to demonstrate any reversible error; therefore, the judgment appealed is affirmed. The order revoking probation, while indicating the appellant was to receive credit for time served, does not specifically set forth the period of credit time to be allowed as required by Section 921.161(1), Florida Statutes. Smith v. State, 310 So.2d 770 (Fla.2d DCA 1975).

Remanded for correction of the sentence; otherwise affirmed. Appellant need not be present for this purpose.

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


text:
    The CITY OF CLEARWATER, Florida, a Municipal Corporation, Picot B. Floyd, City Manager, Joseph Carwise, Karleen DeBlaker, John Rankin and Karen Martin, Commissioners, Gabriel Cazares, Mayor-Commissioner, and Edwin Blanton, Building Official, Appellants, v. FIELD CONSTRUCTION ASSOCIATES, INC., a Florida Corporation, Appellee.
    No. 77-197.
    District Court of Appeal of Florida, Second District.
    Oct. 21, 1977.
    Frank X. Kowalski and Marybeth Laval-lee, Asst. City Attys., Clearwater, for appellants.
    Michael L. Hastings, of Battaglia, Ross, Stolba & Forlizzo, St. Petersburg, for appel-lee.
   PER CURIAM.

In this action for declaratory judgment and other relief, the lower court entered a final judgment granting plaintiff/appellee’s motion for summary judgment. The court held that the doctrine of equitable estoppel applied. According to the court the defendant/appellant City of Clearwater was es-topped to deny a building permit to appel-lee (a developer) in that appellee had relied to its detriment upon a zoning ordinance which was later changed. We reverse. It cannot be said that appellee met its “ . . . burden of showing conclusively that genuine issues of material fact do not exist.” Holl v. Talcott, 191 So.2d 40, 47 (Fla.1966); Tamiami Builders, Inc. v. Smith, 305 So.2d 58 (Fla. 2d DCA 1974). On the contrary, the record reveals sufficient conflict on material facts as to preclude the entry of summary judgment for the appel-lee.

The order granting summary judgment is therefore reversed and the case is remanded for further proceedings not inconsistent herewith.

McNULTY, A. C. J, and OTT and RYDER, JJ., concur.


text:
    James Douglas LOSEY, Appellant, v. STATE of Florida, Appellee.
    No. 77-667.
    District Court of Appeal of Florida, Second District.
    Oct. 21, 1977.

      Jack 0. Johnson, Public Defender, W. C. McLain, Asst. Public Defender, Bartow, and Howard L. Dimmig, II, Legal Intern, Tallahassee, for appellant.
    Robert L. Shevin, Atty. Gen., Tallahassee, and William I. Munsey, Jr., Asst. Atty. Gen., Tampa, for appellee.
   PER CURIAM.

We affirm the judgment of the trial court, but we remand this case for resen-tencing of appellant. The present sentence does not specifically set forth the period of credit time to be allowed as required by Section 921.161(1), Florida Statutes (1975). Smith v. State, 310 So.2d 770 (Fla.2d DCA 1975). The appellant does not have to be present at resentencing.

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