text:
    CHARTER OAK FIRE INSURANCE COMPANY, a Foreign Corporation, Appellant, v. Benito REGALADO, Appellee.
    No. 75-1533.
    District Court of Appeal of Florida, Third District.
    Nov. 16, 1976.
    Rehearing Denied Dec. 3, 1976.
    High, Stack, Davis & Lazenby and Alan R. Dakan, Miami, for appellant.
    Horton, Perse & Ginsberg, Ratiner & Glinn, Miami, for appellee.
    Before PEARSON, HENDRY and NATHAN, JJ.
   PEARSON, Judge.

The appellant is the Charter Oak Fire Insurance Company and is the appellee’s automobile insurance carrier. The action arose out of a dispute between the appellee, Benito Regalado, who is the insured, and the insurance company concerning the company’s liability for the payment of personal injury protection benefits. The insured brought an action for recovery of losses claimed due under that provision of his policy. The company responded and claimed that it was not liable for any personal injury protection benefits because the insured was receiving payments of workmen’s compensation benefits. The position of the company at that time was that it was not liable for any payment until workmen’s compensation benefits had been exhausted and then only if the workmen’s compensation payments received for medical benefits were less in amount than the amount payable under the personal injury protection provision of the Automobile Reparations Reform Act, Florida Statutes, § 627.736. The trial court, after extensive discovery, entered a summary final judgment and held as follows:

“2. Pursuant to the provisions of the Florida Automobile Reparations Reform Act, workman’s compensation benefits received by the claimant are credited against the Personal Injury Protection benefits paid by a Personal Injury Protection insurer and not credited against the amount of coverage, to wit: $5,000.00, afforded by the Personal Injury Protection carrier.
“3. Payments made in accordance with the provisions of the Automobile Reparations Reform Act must be made when they become due and in the ordinary course of business and the carrier owing such payments may not require the insured to exhaust workman’s compensation benefits prior to applying for Personal Injury Protection benefits.
“4. The record here reflects that to date Personal Injury Protection benefits in the amount of $8,851.01 have been-accrued by the plaintiff. The plaintiff has received from its workman’s compensation carrier $6,474.05 in benefits. Therefore, the defendant currently owes the plaintiff $2,376.96 representing the difference between the total amount of damages accrued and the amount paid by workman’s compensation benefits.”

The thrust of the insurance company’s contention in its brief is that an insurer is not required to pay personal injury protection benefits before the insured exhausts workmen’s compensation benefits to which he is entitled. . However, upon oral argument, appellant did not argue in support of the point as stated, but conceded that the insured did not have to exhaust all workmen’s compensation prior to receiving per; sonal injury protection benefits. He urged, instead, that in regard to all medical expenses, the intent of the personal injury protection provision of the statutes was that workmen’s compensation payments should be held to cover all medical expenses where applicable and that the insured should be held to a recovery of medical expenses at the rate, and according to the schedule, set out in the workmen’s compensation statute.

Appellant bases his argument upon Section 627.736(4), Florida Statutes, which reads as follows:

“BENEFITS; WHEN DUE. — Benefits due from an insurer under §§ 627.730-627.741 shall be primary, except that benefits received under any workmen’s compensation law shall be credited against the benefits provided by subsection (1) and be due and payable as loss accrues, upon receipt of reasonable proof of such loss and the amount of expenses and loss incurred which are covered by the policy issued . . . ”

The appellee’s position on this appeal is that workmen’s compensation benefits received by the claimant are credited against the personal injury benefits paid by a personal injury protection insurer and not credited against the total amount of personal injury coverage available.

In Farley v. Gateway Insurance Co., 302 So.2d 177 (Fla. 2d DCA 1974), the District Court of Appeal, Second District, in rejecting a contention that the Florida Automobile Reparations Reform Act should be construed in a restrictive manner, made the following observations:

“First of all, § 627.731 thereof states that the purpose of the act is to provide for insurance benefits to be paid under motor vehicle policies without regard to fault. We think, therefore, the act was intended to broaden insurance coverage while at the same time reasonably limiting the amount of damages which could be claimed. The interpretation placed upon the act by the court below in the factual context of this case had the effect of reducing the scope of insurance coverage.”

So stating, the appellate court reversed the judgment under review.

We take it as established, therefore, that the purpose of the Automobile Reparations Reform Act was to broaden insurance coverage. Credit is provided for workmen’s compensation benefits actually paid primarily because these benefits become payable and collectable in the ordinary course of events earlier than other types of benefits. Inasmuch as the language of the statute (see Section 627.736, Florida Statutes) requires the payment of all reasonable expenses incurred for necessary medical and surgical expenses, we reach the conclusion that the appellant is correct in conceding that workmen’s compensation benefits need not be exhausted, but that his position that medical payments should be restricted to those proscribed by the workmen’s compensation schedule is not well-taken. There is some ambiguity in Section 627.736(4), Florida Statutes, in that it states that PIP insurance is primary except that benefits received under workmen’s compensation shall be “credited” against benefits “provided” under the no-fault law. We note that this subsection states that benefits provided by the section shall be due and payable “as loss accrues.” We, therefore, reach the conclusion that the trial judge correctly determined that the benefits provided by the two sections are concurrent and that credit shall be given only upon a basis of payments actually made, not payments which may become due or will become due in the future. We hold that no error has been shown and, therefore, as- to appellant’s contention that the statute shows an intention to have workmen’s compensation cover all medically related expenses where applicable, we reject the contention and find no error.

A careful reading of the act convinces us that there is no ground upon which to hold that the amounts payable under protection benefits should be limited by the workmen’s compensation payments available for medical expenses. No authority has been cited for this position and we know of none.

The second point presented is that the trial court prematurely rendered a final money judgment in favor of appellee without requiring proof of the reasonableness of medical bills claimed due and owing and the extent of loss of earnings. Appellee concedes in his brief filed in this cause that he was not required by the court to prove the reasonableness of his medical bills. For that reason, that portion of the summary final judgment appealed rendering money judgment in favor of the appellee must be reversed and the cause remanded for a hearing on the reasonableness of the medical bills claimed and upon the extent of lost earnings and earning capacity.

Affirmed in part, reversed in part and remanded for further proceedings.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    Robert David HODGE, Appellant, v. HARTFORD ACCIDENT & INDEMNITY COMPANY and Lumbermens Mutual Casualty Company, Appellees.
    No. 75-1852.
    District Court of Appeal of Florida, Third District.
    Nov. 16, 1976.

      Robert M. Bader, Turner, Shapiro & Levy, Miami, for appellant.
    Walton, Lantaff, Schroeder, Carson & Wahl, Thornton, Daugherty & Conroy, Miami, for appellees.
    Before BARKDULL, C. J., and PEARSON and HAVERFIELD, JJ.
   PER CURIAM.

Robert Hodge, defendant, appeals a final judgment determining that appellee insurers’ policies did not extend coverage to him at the time of an automobile accident.

Robert Hodge operates a Buick repair or service garage and on the day of the accident, Benjamin Posner drove his Buick to the garage and requested Hodge to drive his ear to find the source of a noise emanating from the dashboard. Hodge while road testing the car became involved in an automobile collision with Arthur Manuel. Manuel sustained serious injuries and sued Hodge as operator and his liability insurer, Hartford Accident & Indemnity Company, appellee herein; and Posner as owner and his insurer, Lumbermens Mutual Casualty Company, appellee herein. Hartford had issued a policy on Hodge’s personal car which contained the following exclusion:

“5. Exclusions: This policy does not apply under Section 1: .
“(h) to a non-owned automobile while maintained or used by any person while such person is employed or otherwise engaged in
“1. The automobile business of the insured or of any other person or organization . . . ”

Lumbermens’ policy contained an identical exclusion clause, and Lumbermans and Hartford denied coverage to Hodge. The coverage issue was severed and tried non-jury. At the conclusion of trial, the judge found that the accident occurred while Pos-ner’s car was being used by Hodge while Hodge was engaged in his own automobile business. He thereupon entered judgment for Hartford and Lumbermens. Hodge appeals.

The record supports the finding of the trial judge that Hodge at the time of the accident was road testing Posner’s car and, therefore, he was engaging in the automobile business. Thus, the entry of judgment for appellee insurers based upon the exclusion clauses in their respective policies was eminently correct. See Dixie Automobile Insurance Corp. v. Mason, 155 So.2d 172 (Fla.1st DCA 1963); Hodapp v. Shelby Mutual Insurance Company, 166 So.2d 772 (Fla.2d DCA 1964); Craine v. Gee, 276 So.2d 521 (Fla.2d DCA 1973); Peterson v. Highlands Insurance Company, 328 So.2d 49 (Fla.3d DCA 1976) and cases cited therein.

Affirmed.


author: NATHAN, Judge.

text:
    Jodi NADLER, a minor, by and through her father and next friend, Mel Nadler, and Mel Nadler, Individually, Appellants, v. HOME INSURANCE COMPANY, a corporation licensed to do business in the State of Florida, et al., Appellees.
    No. 75-1859.
    District Court of Appeal of Florida, Third District.
    Nov. 16, 1976.

      Grover, Ciment, Weinstein & Stauber, Miami Beach, for appellants.
    Kuvin, Klingensmith & Lewis, Coconut Grove, for appellees.
    • Before BARKDULL, C. J., and HAVER-FIELD and NATHAN, JJ.
   NATHAN, Judge.

Appellants, plaintiffs below, appeal from an adverse final judgment pursuant to a jury verdict, and from an order denying their motion for a new trial in a suit for damages growing out of an automobile-bicycle accident.

The two points on appeal urged by plaintiffs are first, that the trial court erred in not declaring a mistrial on its own motion during the trial or after the jury returned its verdict for defendants and, second, that the court erred by permitting defendants to have an ordinance read into evidence which the plaintiffs contend was not applicable.

The record reflects that the first witness to testify for plaintiffs was the police officer called to the scene of the accident. On cross examination, defendants’ counsel asked the following question: “Officer, did you charge either of the persons with the accident?” The officer responded, “No, sir, there was no charge.” The court then asked, “Is there any objection?” Plaintiffs’ counsel replied, “Of course. Obviously, it is incorrect.” The court immediately instructed the jury to disregard the question, as it had no bearing on the issues involved in the case. Immediately after examination of the police officer and out of the presence of the jury, plaintiffs’ counsel moved the court to instruct defendants’ counsel to “conduct himself like an officer of the court,” and further stated “[h]owever, certainly I am not going to ask for [a mistrial] at this stage.” During the same colloquy, the court stated that counsel for plaintiffs was waiving the mistrial. The trial concluded without further mention on the record that plaintiffs’ counsel had moved for a mistrial.

It is clear that disclosure of the fact that a defendant in a civil suit was not charged with a driving violation is improper. Eggers v. Phillips Hardware Co., 88 So.2d 507 (Fla.1956). In certain circumstances, the disclosure may be deemed so prejudicial that an instruction to the jury to disregard the improper comment may not suffice to cure the error, and in such circumstances, the jury’s verdict may properly be set aside. Albertson v. Stark, 294 So.2d 698 (Fla. 4th DCA 1974). There are instances, however, where the trial court’s failure to declare a mistrial may not constitute reversible error. In Kleiman v. Zap, 297 So.2d 314 (Fla. 3rd DCA 1974), this court affirmed a verdict in favor of the appellee-driver despite the fact that it had been disclosed inadvertently during the trial that he had been dismissed from a traffic charge growing out of the subject accident. It was reasoned that the appellants’ failure to move for a mistrial was not excused by their belief that the motion would have been “fruitless.”

While the testimony concerning the lack of any charges surrounding the accident involved herein was deliberately elicited from the officer by defendants’ counsel, we do not feel that the court committed reversible error by failing to declare a mistrial on its own motion. The trial judge expressly noted that plaintiffs’ counsel was waiving the mistrial after the latter stated that he would not ask for a mistrial at that stage of the proceedings. Despite this admonition, no further mention was made by plaintiffs’ counsel of a motion for mistrial until three other witnesses had testified after the police officer. And although the transcript appears incomplete at this point, it clearly indicates that counsel for the plaintiffs intended to adopt a “wait and see” attitude as far as the mistrial was concerned.

In this situation, plaintiffs’ attorney could quite properly have moved for a mistrial. Had he done so when the prejudicial statement was first made, it is apparent that the motion would have been granted, since the trial judge was obviously well apprised of the law on this point. To the extent that the trial judge merely instructed the jury to disregard the challenged question and response, counsel for plaintiffs in effect was given “all the relief he asked for.” Albertson, supra at 700 (Mager, J., dissenting). Every opportunity was extended, yet no motion for mistrial was made. Such a situation is readily distinguishable from one where there is no active, informed assent to the trial judge’s ruling. Given these facts, we do not feel that the trial judge should have declared a mistrial sua. sponte. Cf. City of Coral Gables v. Levison, 220 So.2d 430 (Fla. 3rd DCA 1969).

Plaintiffs’ second point on appeal is without merit, as the record reflects that plaintiffs did not object during trial to the admission of the traffic ordinance into evidence. Klem’s, Inc. v. Cline, 105 So.2d 881 (Fla.1958); see also Ross v. Florida Sun Life Insurance Co., 124 So.2d 892 (Fla. 2nd DCA 1960).

Affirmed.


text:
    LLOYD DAMSEY, M.D., P.A., a Florida Corporation, and Lloyd Damsey, M.D., Individually, Appellants, v. Barry J. MANKOWITZ, M.D., Appellee.
    No. 75-1870.
    District Court of Appeal of Florida, Third District.
    Nov. 16, 1976.

      Nathan Kurtz, Miami, for appellants.
    A. M. Schwitalla, Miami, for appellee.
    Before BARKDULL, C. J., and PEARSON and HAVERFIELD, JJ.
   PER CURIAM.

Plaintiffs appeal chancellor’s order denying their prayer for injunctive relief to enjoin defendant from practicing medicine in the area located between Boca Chica on the West and Plantation Key on the East.

In August 1973 plaintiffs Lloyd Damsey, P.A. and Lloyd Damsey, M.D., individually, executed an agreement with defendant Barry J. Mankowitz, M.D. for Dr. Manko-witz’ association for the practice of medicine with the plaintiffs as of November 1, 1973. The agreement was for a term of one year automatically renewable unless either of the parties gave notice 90 days before the anniversary date that renewal would not take place. The contract contained the following relevant proviso:

“Dr. Mankowitz agrees, in consideration of his employment, to not practice medicine in any community lying between Boca Chica Key on the West and Plantation Key on the East, for a period of three years following termination of his employment by the P.A., without regard to the reason or nature of the termination.”

Ninety days before expiration of Dr. Man-kowitz’ first year of employment, plaintiffs gave him notice that the contract would not be renewed and on October 31, 1974 his association with plaintiffs was discontinued. Dr. Mankowitz continued to practice medicine in the area lying between Boca Chica and Plantation Key. Plaintiffs filed a complaint seeking to enjoin Dr. Mankowitz from practicing in this area and after a hearing, the chancellor denied plaintiffs’ requested injunction. We affirm.

The granting or denying of injunc-tive relief rests largely in the discretion of the chancellor and is governed by the facts and circumstances of the particular case. Baboun v. Royal Atlas Corp., 287 So.2d 407 (Fla.3d DCA 1973) and 17 Fla.Jur. Injunctions § 16 (1958).

After balancing the equities, the chancellor in denying the injunctive relief found, inter alia, the agreement to be unreasonable as it required defendant, a professional man, at the end of either the first, second or third year, at the election of plaintiffs, to remove himself from the community where he has made substantial investments to maintain the standards of a physician and move elsewhere beyond the geographic limits of the restraining covenants (in this case, 70 miles). The testimony also revealed a compelling need for defendant’s services as a surgeon in the area and enforcement of the covenant would jeopardize the public health of the community. We conclude that under the circumstances the restrictive covenant in this agreement is unduly harsh and oppressive and affirm the appealed order. Cf. Akey v. Murphy, 238 So.2d 94, 97 (Fla.1970).

Affirmed.


text:
    Leo STUBBS, Appellant, v. The STATE of Florida, Appellee.
    No. 76-128.
    District Court of Appeal of Florida, Third District.
    Nov. 16, 1976.

      Phillip A. Hubbart, Public Defender, and Karen M. Gottlieb, Asst. Public Defender, for appellant.
    Robert L. Shevin, Atty. Gen., and Ira N. Loewy, Asst. Atty. Gen., for appellee.
    Before PEARSON, HENDRY and HAV-ERFIELD, JJ.
   PER CURIAM.

Affirmed. See Walker v. State, 196 So.2d 8 (Fla. 3d DCA 1967); Eason v. State, 317 So.2d 447 (Fla. 3d DCA 1975); Crawford v. State, 334 So.2d 141 (Fla. 3d DCA 1976).


text:
    PHILLIPS PETROLEUM COMPANY, Appellant, v. Art HEIMER d/b/a Art Heimer Paint Company, and Security Insurance Company of Hartford, Appellees.
    No. 76-453.
    District Court of Appeal of Florida, Third District.
    Nov. 16, 1976.
    Rehearing Denied Dec. 6, 1976.
    Bradford, Williams, McKay, Kimbrell, Hamann & Jennings, Miami, and David C. Garrett, Coral Gables, for appellant.
    Adams, George, Lee & Schulte and David L. Willing, Miami, for appellees.
    Before PEARSON, HENDRY and NATHAN, JJ.
   PER CURIAM.

Phillips Petroleum Company, defendant-third party plaintiff, takes this appeal from an order dismissing its third party complaint for failure to prosecute. The original complaint in this wrongful death action was filed in 1968. Phillips Petroleum was one of the original defendants. In 1974, Phillips filed a third party complaint for indemnity naming as third party defendants Art Heimer d/b/a Art Heimer Paint Company and his two insurers, Security Insurance Company of Hartford and Consolidated Mutual Insurance Company. Heimer and Security are appellees herein; Consolidated Mutual is not a party to this appeal, but remains in the suit.

On January 20, 1975, following several months of procedural skirmishing, Heimer and Security filed an amended motion to dismiss the third party complaint. No further action was taken by Phillips or by Heimer or Security until January 22, 1976, when Heimer and Security filed a motion to dismiss for lack of prosecution, alleging that the last pleading filed in the suit was their motion of January 20, 1975. Following a hearing, the trial court entered an order dismissing the third party complaint against Heimer and Security for lack of prosecution under Rule 1.420(e), Fla.R. Civ.P.

Rule 1.420(e), supra, concerning dismissal of actions for failure to prosecute, provides that an action shall be dismissed where it affirmatively appears that no action has been taken through either the filing of pleadings, order of court or otherwise for a period of one year. The record reflects that although Phillips, Heimer and Security took no action during the one year period, activity of record was initiated during the year by or on behalf of the third party codefend-ant Consolidated; a request to produce was directed toward the original plaintiff, interrogatories were answered, and a motion for summary judgment was filed together with an exhibit and a notice of hearing.

The question posited for consideration in this case is whether Heimer and Security were entitled to dismissal of Phillips’ third party complaint under Rule 1.420(e) where no action was taken by Phillips or third party defendants Heimer and Security for more than one year, although another third party defendant, Consolidated, had taken action within the same period of time. We believe that the dismissal was unwarranted in this instance.

It is well settled that action taken on the part of any party which is more than a mere passive effort, i.e., an affirmative act directed toward disposition of the cause, is sufficient to avoid dismissal for failure to prosecute. Compare Eastern Elevator, Inc. v. Page, 263 So.2d 218 (Fla.1972), and see Kenet v. Stein, 326 So.2d 36 (Fla.3rd DCA 1976).

The Florida Rules of Civil Procedure provide for third party practice in order to avoid multiplicity of actions and to allow the entire subject arising from one set of facts to be disposed of in one action. Mims Crane Service, Inc. v. Insley Manufacturing Corp., 226 So.2d 836, 840 (Fla.2d DCA 1969). There is no question that there is a proper third party complaint involved herein which should be disposed of along with the original suit. There was affirmative action taken within the required time which was directed toward disposition of the case. Given these facts, and the fact that Rule 1.420(e) is directed toward dismissal of causes of action rather than particular parties to an action, the third party complaint against Heimer and Security should not have been dismissed.

Reversed.


author: HAVERFIELD, Judge.

text:
    Mable FRYER, Appellant, v. INDUSTRIAL FIRE AND CASUALTY INSURANCE COMPANY, Appellee.
    No. 76-592.
    District Court of Appeal of Florida, Third District.
    Nov. 16, 1976.

      Gilbert, Silverstein & Heilman, Miami, for appellant.
    Goodhart & Rosner and Craig W. Lekach, Miami, for appellee.
    Before HENDRY, HAVERFIELD and NATHAN, JJ.
   HAVERFIELD, Judge.

Plaintiff, Mable Fryer, takes this interlocutory appeal to review an order granting defendant insurer’s motion to set aside default judgment.

Plaintiff on November 25, 1975 filed suit against Industrial Fire and Casualty Insurance Company seeking payment of personal injury protection benefits and arbitration. Thereafter, counsel for both parties engaged in telephone conversations and exchanged letters with respect to this lawsuit. By letter dated December 31 defendant’s counsel informed opposing counsel that he intended to file an answer and had appointed an arbitrator. No responsive pleadings were filed and on January 10, 1976 plaintiff’s counsel moved for a default which was granted on January 12. A default judgment for plaintiff was entered on February 11 and defendant upon receiving a copy of the judgment moved on March 3 to vacate. Attached to this motion was an answer alleging a meritorious defense and an affidavit of defense counsel stating that after he sent his letter of December 31, 1975 informing plaintiff’s counsel that he intended to file an answer with respect to the issue of payment of the PIP benefits and hold the arbitration count in abeyance, through mistake and inadvertence, it was his understanding that plaintiff’s attorney would either call or write to confirm the status of the case. After hearing argument, the trial judge entered the order vacating the default judgment on the grounds that there was correspondence between the attorneys and no notice was given to defense counsel at the time of plaintiff’s motion for default and default judgment. We affirm.

The well established policy of the courts is to liberally set aside defaults for failure of a defendant to file a responsive pleading so as to allow a determination of the controversy on the merits when the defendant demonstrates that his neglect was excusable and that he has a meritorious defense. Clark v. Roberto’s, Inc., 320 So.2d 870 (Fla. 4th DCA 1975). We find the answer alleged a meritorious defense, thus our concern is directed to the issue of excusable neglect.

The precise circumstances constituting excusable neglect, mistake or inadvertence is not well defined but depends upon all the factors in the case. Florida Investment Enterprises, Inc. v. Kentucky Co., 160 So.2d 733 (Fla. 1st DCA 1964). The record shows that (1) although the attorneys for the parties were in contact with each other, the trial judge was not so advised at the time of entry of the default judgment; (2) despite the fact that the attorneys’ offices were a short distance apart, plaintiff’s counsel did not notify defense counsel of his application for default; (3) defendant moved to vacate default within three weeks of entry of the default judgment; (4) there was a genuine misunderstanding on the part of defense counsel with respect to confirmation by plaintiff’s counsel of the status of the case following the letter of December 31; (5) there was no adjudication of the issues on the merits. Inadvertence or mistake cannot be held as a matter of law sufficient to excuse compliance; it may be in some instances but not in others. It is the duty of the trial court and not the appellate courts to make that determination. Farish v. Lum’s, Inc., 267 So.2d 325 (Fla.1972). Under the facts in the cause before us, we cannot say the trial judge abused his discretion in setting aside the default judgment. See Florida Investment Enterprises, Inc., supra and Butler v. Alessi, 210 So.2d 461 (Fla.3d DCA 1968).

Affirmed.

      . Although we note the rules do not require such notification.


text:
    HIALEAH PARK, INC., a Florida Corporation, Petitioner, v. BOARD OF BUSINESS REGULATION OF the DEPARTMENT OF BUSINESS REGULATION, a State Agency, and Gulfstream Park Racing Association, Inc., a Florida Corporation, Respondents.
    No. 76-1399.
    District Court of Appeal of Florida, Third District.
    Nov. 16, 1976.

      Sibley, Giblin, Levenson & Ward, Miami, for petitioner.
    William D. Moore, Tallahassee, Landefeld & Romanik, Hollywood, for respondents.
    Before PEARSON, HENDRY and HAV-ERFIELD, JJ.
   PER CURIAM.

With the filing of this petition for writ of certiorari by Hialeah Park, Inc., we have before us the annual contest for the lucrative middle season horse racing dates which this year the Board of Business Regulation awarded to Gulfstream Park Racing Association, Inc.

Pursuant to Section 550.081, Florida Statutes (1975), respondent-appellee Board of Business Regulation is empowered to award racing dates to the three winter horse racing tracks located within a 35 mile radius of each other — Hialeah, Gulfstream and Tropical (not a party to this appeal). In awarding dates, the Board must take into account the interest of the state, interest of the track owner, good will, quality of the horses, track facilities, geography and skill in management. Hialeah Race Course, Inc. v. Board of Business Reg., 270 So.2d 366 (Fla.1972). Under Section 550.081, Florida Statutes (1975) the Board must also take into account “the ability of all winter permit-holders to maximize handle throughout the entire 144-day racing period so as to generate overall the maximum state revenue from winter permitholders collectively.” Tropical applied for and was granted the first racing period, November 18, 1976 — January 14,1977. Both Hialeah and Gulfstream applied for the lucrative middle period, January 15 — March 7,1977. A hearing was held and the Board awarded the middle racing dates to Gulfstream and the spring racing dates (March 8 — May 3, 1977) to Hialeah. Basing its award on the criteria set out above, the Board found (1) that a comparison of state revenues generated from the three horsetracks over the previous four racing seasons demonstrated that the interest of the state in maximum revenue in accordance with the statutory directive is best served when Gulfstream is awarded the middle racing period; (2) with respect to geography, Gulfstream is in a preferred location; (3) Gulfstream maintains superiority in skill of management; (4) with regards to facilities, quality of horses and good will, the two tracks are equal; (5) with respect to the interest of the track owner, although Hialeah inferentially suggested that unless it is awarded the middle dates it may be unable to remain in business, the evidence offered by Hialeah on the financial question is conflicting and unconvincing. Hialeah filed the instant petition for writ of certiorari to review the award to Gulfstream.

In certiorari the reviewing court does not reweigh or re-evaluate the evidence, but merely examines the record to determine whether the Board or agency had before it competent substantial evidence to support its findings, i. e. such relevant and material evidence as a reasonable mind would accept as adequate to support a conclusion. De Groot v. Sheffield, 95 So.2d 912 (Fla.1957); Ammerman v. Florida Board of Pharmacy, 174 So.2d 425 (Fla.3d DCA 1965). A review of the record illustrates that the Board had before it competent evidence to substantiate its findings.

With respect to the finding that the interest of the state in maximum revenue would be best served by awarding Gulf-stream the middle dates, the figures demonstrate that on an individual track basis, Gulfstream generated more state revenue when it held the middle racing dates (1972 and 1974) than when Hialeah had the middle racing dates (1973 and 1975). Gulf-stream achieved this result despite the existence of the gasoline shortage during the tourist season of 1974, while Hialeah enjoyed the benefits of the banner tourist season in 1975. In addition, although the overall revenue generated from Tropical, Hialeah and Gulfstream during the 1971-1972 season when Gulfstream had the middle period is somewhat lower than the following year when Hialeah had the middle dates, the Board properly took into account the fact that Tropical in 1971-72 was racing in its old track and thereafter Tropical’s racing was held at Calder resulting in a seven million dollar handle increase during the 1972-73 season.

Turning to the issue of Hialeah’s poor financial condition, the evidence of which the Board found to be conflicting and unconvincing, we can only point out that the state’s financial interest is paramount to that of Hialeah. See Gulfstream Pk. Rac. Ass’n, Inc. v. Board of Bus. Reg., 318 So.2d 458, 467 (Fla.1st DCA 1975).

Certiorari denied.

      . Hialeah and the middle racing dates for the 1972-73 and 1974-75 seasons and Gulfstream had the middle dates for the 1971-72 and 1973-74 seasons. Tropical for these four years had the first, racing period.

      . as it did the previous year and which was a strong consideration by the Board in its award of the middle dates to Hialeah for the 1975-76 season.

      . to which petitioner Hialeah takes great issue.


text:
    FLORIDA POWER & LIGHT COMPANY and Ronald Marsh, Appellants, v. Arthur PINDER, Appellee.
    No. 76-1474.
    District Court of Appeal of Florida, Third District.
    Nov. 16, 1976.
    Steel, Hector & Davis and Norman A. Coll, Miami, for appellants.
    Horton, Perse & Ginsberg, Brumer, Moss, Cohen & Rogers, Miami, for appellee.
    Before PEARSON, HENDRY and HAV-ERFIELD, JJ.
   PER CURIAM.

This interlocutory appeal questions the correctness of a summary judgment as to liability entered against the defendant in an action for damages which was caused by the defendant’s truck running into the rear of plaintiffs automobile, while the parties were waiting for a traffic light to change from red to green.

The defendant asserted in its answer, af, fidavits and deposition that the collision was caused through no fault of the driver but because of an unexpected mechanical failure that caused the motor of the truck to race and propel the truck into the rear of plaintiff’s car.

From a careful consideration of the record on appeal, briefs and arguments of counsel, we have concluded that the trial court did not err in granting plaintiff’s motion for summary judgment on the question of liability.

Affirmed.


author: SCHEB, Judge.

text:
    G. Patrick ILEY et al., Appellants, v. Robert HARRIS, Appellee.
    No. 76-41.
    District Court of Appeal of Florida, Second District.
    Nov. 17, 1976.
    James Nugent M. Walsh, Asst. County Atty., Clearwater, for appellants.
    John T. Robinson, St. Petersburg, for ap-pellee.
   SCHEB, Judge.

Appellants constitute the Board of County Commissioners of Pinellas County and in that capacity they challenge a writ of mandamus directing them to issue appellee Harris a license to carry a pistol.

Appellee Harris, a 65-year old semiretired jeweler, on three occasions applied to the Board for a license to carry a pistol under Section 790.06, Florida Statutes. After his third request was refused, he obtained an alternative writ of mandamus directed to the Board. Upon denial of the Board’s motion to dismiss, a peremptory writ was issued and this appeal ensured. We affirm.

The parties have stipulated that the only point on appeal is whether Section 790.06, Florida Statutes, vests the Board of County Commissioners with discretion to issue or deny a license, or whether that statute mandates issuance of a license to a person of sufficient age and of good moral character.

The relevant part of Section 790.06, Florida Statutes, provides:

“The county commissioners of the respective counties of this state may at any regular or special meeting grant a license to carry a pistol, Winchester or other repeating rifle, only to such persons as are over the age of 21 years and of good moral character, for a period of 2 years,

No contention is made by the Board that appellee has failed to comply with any of its application procedures or that appellee has failed to meet the standards it has established to assure that a licensee possesses the requisite skill in use of a weapon and knowledge of safety procedures in handling firearms. And, while the statute implies discretion in making a determination of an applicant’s character, there is no issue here as to moral character of the appellee.

The Board contends the statute vests it with such discretion that it is not required to act except in its own good judgment. By denial of appellee’s application of May 28, 1975, the Board implicitly determined there was no demonstrated need for appellant to have the requested license. In support of their position, the Board cites Opinion 051-105, issued May 7, 1951, by the Attorney General of the State of Florida, stating that it is entirely discretionary with the Board whether such a license issues to an applicant who meets the statutory requirements of age and moral character.

While not unsympathetic to the Board’s contention that public safety and the general welfare demand that discretion be exercised in determining whether to issue these permits, we are cognizant that the same statutory enactment was reviewed in Smith v. State ex rel. Osborne, 121 Fla. 241, 163 So. 524 (1935). There, the Board of County Commissioners of Marion County, in responding to an alternative writ of mandamus, contended that the relators did not show any necessity to have a license to carry a firearm. There, as here, there was no question of the relators meeting the age requirements or of demonstrating their good moral character, but the Board, nevertheless, denied relator’s request for permit. In Smith the court affirmed the issuance of a peremptory writ and stated:

“The only question presented here was whether or not where a person over 21 years of age, of good moral character, applies to the board of county commissioners for a license to carry a firearm such as is contemplated under section 5101, R.G.S., section 7203, C.G.L., and it does not appear that the person applying for such license intends to use the firearm for which such license is to apply for an unlawful purpose, it thereupon becomes the duty of the board of county commissioners to issue the license when the terms of the statute have been complied with and it does not appear that it is the purpose of the applicant to use the firearms described in his application for unlawful purposes.”

There are compelling arguments that as a rapidly urbanizing state, Florida has changed considerably in the more than 40 years since Smith was decided and that the interpretation of Smith should be reviewed. A question as to the continued viability of Smith is also raised by the amendments that have been made in the laws concerning the licensing of persons to carry firearms. For although the licensing provision construed in Smith has not been changed for over 70 years, the statutes relating to carrying of firearms have been revised considerably. When Smith was decided, a license was required to carry any pistol or repeating rifle with the only persons excepted being certain enumerated law enforcement officers. Section 7202 C.G.L. (1927). Moreover, at that time even this form of license did not authorize the carrying of a concealed weapon. See Section 7197, C.G.L. (1927). In contrast, the current statutes except a variety of persons from the licensing requirements. Now, in addition to law enforcement officers, authorized federal employees, military and national guard personnel, civil defense trainees, and guards or messengers transporting valuables are exempted. Also exempted are persons engaged in, or en route to, such activities as target practice, hunting and fishing. Section 790.25(3), Florida Statutes (1975). None of these exemptions authorize a person to carry a concealed weapon; however, a license holder under current law is authorized to carry a concealed firearm. Section 790.01(4), Florida Statutes.

We are not speaking of the individual’s right to bear arms, but rather the state’s power to regulate carrying such arms in a concealed manner. Cf. Rinzler v. Carson, 262 So.2d 661 (Fla.1972). And even though a good case can be made for statutory controls adequate to assure that a person have a bona fide need to carry a firearm and be qualified to handle it before receiving a license, the legislature has not seen fit to amend the statute which was originally enacted in 1903. And while the view expressed by the Attorney General’s opinion in 1951 allows the board to achieve a laudable result, it does not follow the law as interpreted in Smith, supra. This court is bound by the decisions of the Supreme Court of Florida. Cf. Hoffman v. Jones, 280 So.2d 431 (Fla.1973).

Accordingly, the judgment of the trial court is affirmed on authority of Smith v. State, supra. In view, however, of our concern as to the present viability of the Smith holding and the great public interest involved, we certify to the Supreme Court of Florida the following question as one of great public interest:

Does Section 790.06, Florida Statutes, vest a Board of County Commissioners with any discretion in the issuance of licenses to carry firearms to persons meeting the statutory criteria of age and good moral character?

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

      . Appellee’s good moral character was attested by a jeweler, an attorney, and a physician, all of whom are unrelated to appellee and have known him for 15 years or more. Each certified that appellee is a person of good moral character, temperate, industrious and in all respects fit to have a gun permit.

      . In a motion for continuance, the parties, by their attorneys, stipulated:
      “1. Under previous Board of County Commissioner policy, gun permits were issued only to night watchmen and private police personnel.
      2. On March 18, 1975, the Board of County Commissioners adopted new policy regarding gun permits. Henceforth, gun permits shall be granted to those persons whose lines of business or other activities indicate a need to carry a gun with each application handled individually and based on the particular situation.”

      . While there is dicta in Davis v. State, 146 So.2d 892 (Fla.1962), indicating issuance of permits may be discretionary, Smith, supra, appears controlling on the question now before us.


text:
    Robert JONES, III, Appellant, v. STATE of Florida, Appellee.
    No. AA-167.
    District Court of Appeal of Florida, First District.
    Nov. 19, 1976.
    Richard W. Ervin, III, Public Defender, and Louis G. Carres, Asst. Public Defender, for appellant.
    Robert L. Shevin, Atty. Gen., and A. S. Johnston, Asst. Atty. Gen., Tallahassee, for appellee.
   PER CURIAM.

The judgments are AFFIRMED, but the cause is REMANDED with directions to sentence the defendant on one count only, as the two counts were part of the same criminal transaction. Robinson v. State, 325 So.2d 427 (Fla.App. 1st, 1976). The defendant need not be present when the sentence is so modified.

AFFIRMED, but REMANDED for correction of sentences.

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


author: GREEN, OLIVER L., Jr., Associate Judge.

text:
    John L. RINGGO, Appellant, v. STATE of Florida, Appellee.
    No. 75-527.
    District Court of Appeal of Florida, Second District.
    Nov. 19, 1976.
    Enrique Escarraz, III, St. Petersburg, for appellant.
    Robert L. Shevin, Atty. Gen., Tallahassee, and William I. Munsey, Jr., Asst. Atty. Gen., Tampa, for appellee.
   GREEN, OLIVER L., Jr., Associate Judge.

It is an interesting aspect of our system of justice that a trial judge may err while observing the current directives controlling his conduct. Such is the situation in the instant case.

The trial below occurred on January 22, 1975. The defendant pled not guilty by reason of insanity. The defendant requested an instruction as to the effect of a verdict of not guilty by reason of insanity under Fla.R.Crim.P. 3.460. The request was denied under the existing authority of McClure v. State, 104 So.2d 601 (Fla.3d DCA 1958), which held that while the trial court may instruct the jury as to those consequences, a refusal to do so does not constitute error.

The issue of the defendant Ringgo’s sanity was vigorously litigated below, resulting in verdicts unfavorable to him.

This same question has, since the date of the trial below, been decided differently in the case of Roberts v. State, 335 So.2d 285 (Fla.1976), wherein the Supreme Court ruled that failure to thus instruct on the effects of Rule 3.460, constituted reversible error under the so-called “Lyles rule.” (Lyles v. United States, 103 U.S.App.D.C. 22, 254 F.2d 725 (1957).) The ruling of McClure was thereby altered, and there is nothing in the Roberts opinion to suggest that its principle should be given only prospective effect.

The ruling in Roberts v. State applies in all respects to the issue herein being considered. We have also considered the remaining points on appeal, finding that the above stated matter constitutes the sole basis for reversal.

We are not unmindful of the fact that no doubt exists as to the heinous conduct of the defendant. Neither are we unmindful that the jury had before it competent evidence bearing on the issue of insanity. Nevertheless, we are compelled to reverse on the authority of Roberts v. State, supra.

REVERSED and REMANDED.

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


author: BOARDMAN, Judge.

text:
    PEACOCK CONSTRUCTION CO., INC., a corporation, Appellant, v. MODERN AIR CONDITIONING, INC., a Florida Corporation, Appellee.
    No. 76-433.
    District Court of Appeal of Florida, Second District.
    Nov. 19, 1976.
    Archie M. Odom, of Farr, Farr, Haymans, Moseley & Odom, Punta Gorda, for appellant.
    Harry A. Blair, Fort Myers, for appellee.
   BOARDMAN, Judge.

Appellant/defendant appeals a summary judgment granted in favor of appel-lee/plaintiff in an action for breach of contract.

Appellant, a general contractor, entered into a contract with appellee, a subcontractor, providing that appellee would do all the heating and air conditioning work in a condominium development. According to the terms of the written contract appellant would make final payment to appellee

within 30 days after the completion of the work included in this sub-contract, written acceptance by the Architect and full payment therefor by the Owner.

It is undisputed that appellee has completed the work under the contract, that appellee requested final payment, that appellant has not made the payment, and that appellant has not been fully paid by the owner of the development.

The question for our determination is whether the above-quoted contract provision is a condition precedent to appellant’s liability. We agree with the finding of the trial court expressed in the judgment that it is not and that payment was due and owing to appellee within a reasonable time after it was requested. We adopt the view of the majority of jurisdictions, which we consider the better view, that a provision such as the one we are considering in this case is an absolute promise to pay and that payment is merely postponed for a reasonable time after completion of the subcontractor’s work and request for payment. See, e. g., A. J. Wolfe Co. v. Baltimore Contractors, Inc., 355 Mass. 361, 244 N.E.2d 717 (1969).

AFFIRMED.

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

      . We are aware of the fact that the Third District Court of Appeal has taken the minority view holding that this provision is a condition precedent. Edward J. Gerrits, Inc. v. Astor Electric Service, Inc., 328 So.2d 522 (Fla.3d DCA 1976).


author: McCORD, Judge.

text:
    David Charles MAHER, Appellant, v. STATE of Florida, Appellee.
    No. Z-357.
    District Court of Appeal of Florida, First District.
    Nov. 22, 1976.
    Richard W. Ervin, III, Public Defender, David J. Busch and Louis G. Carres, Asst. Public Defenders, for appellant.
    Robert L. Shevin, Atty. Gen., and A. S. Johnston, Asst. Atty. Gen., for appellee.
   McCORD, Judge.

Appellant was charged by information with aggravated assault. He filed a motion to dismiss stating that the undisputed facts did not establish a prima facie case on the charge in that they show that the victim was struck in the back by an object following which he saw a bottle fall to the ground and then saw appellant drive past in an automobile. The court denied the motion and appellant pled nolo contendere conditioned upon the reservation of his right to appeal the court’s ruling denying the motion to dismiss. The court subsequently withheld adjudication of guilt and placed appellant on probation for a period of one year. He appeals the court’s order. On joint motion of appellant and appellee, this cause was remanded to the trial court for the purpose of determining in the trial court whether or not the victim had a well-founded fear that violence was imminent. The trial court has now entered its order finding that the victim did not have such fear. In State v. White, 324 So.2d 630 (Fla.1976), the Supreme Court affirmed this court and ruled that the crime of aggravated assault includes as one of its elements the victim’s well-founded fear that violence is imminent.

Reversed and remanded with directions to grant appellant’s motion to dismiss the information.

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


author: BOYER, Chief Judge. McCORD, Judge

text:
    John Stokes JOINER, Appellant, v. STATE of Florida, Appellee.
    No. BB-442.
    District Court of Appeal of Florida, First District.
    Nov. 22, 1976.
    Richard W. Ervin, III, Public Defender, and Michael J. Minerva, Asst. Public Defender, for appellant.
    Robert L. Shevin, Atty. Gen., and Raymond L. Marky, Asst. Atty. Gen., for appel-lee.
   BOYER, Chief Judge.

Appellant was convicted by a jury and sentenced to five years imprisonment for possession of a firearm by a convicted felon. The sole issue in the instant appeal is whether the state produced sufficient evidence at trial to establish that appellant had knowledge of the presence of the gun which was found at the home which was occupied jointly by appellant and his wife.

Only two witnesses testified for the state. The state’s evidence showed that appellant lived in a house which had three bedrooms, one of which was occupied by appellant and his wife and contained a closet which they both used, the second bedroom being occupied by Jimmy Estes, and the third bedroom occupied by Hal Williamson. The Leon County Sheriff’s Office obtained a valid search warrant to search the home. One of the officers present, Detective Henry Hamlin, stated that in searching the closet of appellant’s bedroom, he discovered a rifle, located in the left corner as he looked inside the closet door. Parenthetically, we observe that a photograph of the closet, taken soon after the search, reveals that in the left corner were several long dresses, presumably belonging to appellant’s wife, behind which the rifle that was discovered in the search could easily have been .concealed. On cross-examination, Hamlin admitted that he had to push back some clothés before he was able to see the gun. He further stated that there were both men’s and women’s clothes in the closet. Detective Hamlin claimed on re-direct that it could have been possible to have seen the lower part of the stock of the gun if he had approached the closet from a different angle, but again, he had to admit that on the day of the search, he was unable to see the gun until he had pushed back some clothes in the closet. After appellant’s motion for directed verdict was denied, appellant’s wife testified that the gun found in the closet belonged to the aforementioned Hal Williamson, a close friend. She explained that she was keeping the gun for Williamson as a personal favor, and that the gun was kept behind her long dresses on her side of the closet. Appellant’s renewed motion for directed verdict was denied.

We have concluded that this case is controlled by Powell v. State, Fla.App. 1st 1976, 335 So.2d 304, and the cases cited therein. In that case, as in the case sub judice, the court erred in failing to direct a verdict for defendant at the close of the state’s case. The state claims that knowledge may be inferred, and cites as authority for that proposition Frank v. State, Fla.App. 1st 1967, 199 So.2d 117. However, as noted by this Court in the Frank case which dealt with the unlawful possession of narcotic drugs, “ * * * If the premises on which the drugs are found is not in the exclusive but only in the joint possession pf the accused, knowledge of the drugs’ presence on the premises and the ability to maintain control over them by the accused will not be inferred but must be established by proof. * * * ” (Frank v. State, at 120) Sub judice, the state failed to prove beyond reasonable doubt that appellant had knowledge of the gun. Indeed, the state in the presentation of its case offered no proof at all tending to establish appellant’s knowledge of the gun. Detective Hamlin’s speculation that the rifle could possibly be seen if approached at a different angle is without probative value, especially in light of his admission that he was unable to see the rifle until after he had pushed back some clothes in the closet.

Accordingly, appellant’s conviction and sentence are reversed, and the cause is remanded to the trial court with directions that appellant be discharged.

Reversed and remanded with directions.

RAWLS, J., concurs.

McCORD, J., dissents.

McCORD, Judge

(dissenting).

From the evidence, it appears that the closet in which the rifle was located was a small closet used by both appellant and his wife. This rifle standing in this jointly used closet is not analogous to marijuana concealed between mattresses or concealed in a vase or in a drawer or to a concealed pistol. In my view the state presented sufficient circumstantial evidence to show appellant’s knowledge of the presence of this rifle and that it was in his control. Testifying for appellant, his wife stated that he was at work when the rifle was given to her and that she did not tell him that the gun was in the closet. She stated that the gun belonged to her brother-in-law, but on cross-examination she testified that it belonged to Hal Williamson and explained that she called him her brother-in-law because she was a close friend of his wife. She acknowledged that the rifle had been in the jointly used closet for “maybe two or three weeks” and that Williamson had gone to Alabama to school. It was the jury’s province to determine the credibility of her testimony and what parts of it they would believe and what parts they would not believe. In my opinion the circumstantial evidence was sufficient to support the jury finding that it was consistent with guilt and inconsistent with any reasonable hypothesis of innocence. I would affirm.


text:
    Gerald SMITH, Appellant, v. STATE of Florida, Appellee.
    No. CC-458.
    District Court of Appeal of Florida, First District.
    Nov. 22, 1976.
    Richard W. Ervin, III, Public Defender, and Michael M. Corin, Asst. Public Defender, Tallahassee, for appellant.
    Robert L. Shevin, Atty. Gen., and A. S. Johnston, Asst. Atty. Gen., Tallahassee, for appellee.
   PER CURIAM.

The judgments are AFFIRMED, but the cause is REMANDED with directions to sentence the defendant on one count only, as the two counts were part of the same criminal transaction. Robinson v. State, 325 So.2d 427 (Fla.App. 1st, 1976). The defendant need not be present when the sentence is so modified.

AFFIRMED, but REMANDED for correction of sentences.

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


text:
    Muriel RUDOLPH and Judith Male d/b/a Muriel Rudolph Associates, Appellants, v. Jackie GLEASON, an Individual, et al., Appellees.
    No. 75-1290.
    District Court of Appeal of Florida, Third District.
    Nov. 23, 1976.

      Storace, Hall & Hauser and Andrew M. Leinoff, Miami, for appellants.
    Fleming, O’Bryan & Fleming, Fort Laud-erdale, for appellees.
    Before PEARSON, HENDRY and HAV-ERFIELD, JJ.
   PER CURIAM.

Plaintiffs appeal three adverse final judgments in this contract action and primarily urge as reversible error the denial of their motion for new trial. The ground for this motion was that defendant Jackie Gleason communicated with a juror during the trial which may have influenced the juror. The record reflects that on the morning of the second day of trial while defendant Gleason was in an elevator with one of the woman jurors, she remarked to him that she had been reluctant to give her age upon voir dire examination. Defendant responded that it was a woman’s prerogative not to say how old she is. These passing comments were the extent of their conversation. The contention that prejudice to the appellants resulted therefrom is pure speculation and we find that the trial judge did not commit an abuse of discretion in denying the motion for new trial. See First National Bank in Tarpon Springs v. Bliss, 56 So.2d 922 (Fla.1952); Concord Shopping Center, Inc. v. Bookbinder, 227 So.2d 888 (Fla.3d DCA 1969) and Annot., 62 A.L.R.2d 382 (1958).

We also considered appellants’ argument that the trial court erred in failing to admonish Mr. Gleason for his alleged constant failure to properly respond to counsel’s questions on cross-examination and conclude it is lacking in merit.

Affirmed.


text:
    Frank MOORE and Gertrude R. Moore, his wife, Appellants, v. SKY REALTY, INC., a Florida Corporation, Appellee.
    No. 75-1444.
    District Court of Appeal of Florida, Third District.
    Nov. 23, 1976.
    Melvin D. Bratton, Coral Gables, for appellants.
    Emanuel Sponder, Miramar, for appellee.
    Before PEARSON, HENDRY and HAV-ERFIELD, JJ.
   PER CURIAM.

This is an appeal from a final judgment awarding a real estate brokerage commission.

On March 4, 1974 appellant Gertrude Moore and her husband executed a multiple listing agreement whereby they agreed to pay Sky Realty, Inc. a 7V2% real estate commission if it could procure a purchaser to buy their home for $55,000. On May 9 Sky Realty procured Mr. and Mrs. Spital-nick who made an offer of $53,000. The Moores turned it down. On the next morning (May 10) the Spitalnicks went to the office of Sky Realty and made an offer of $55,000 cash. This offer was immediately communicated to the Moores. They refused to accept and sent a telegram dated May 11 instructing Sky Realty to take their house off the market. Sky Realty then sued for the 7V2% commission and the cause proceeded to a non-jury trial. The judge found for Sky Realty and entered a final judgment in its favor for $4,125 plus interest.

Although appellant raises nine points on appeal, she has failed to present to this court a transcript of testimony. This court is required to affirm where an appellant fails to bring up the transcript of testimony given at a final hearing and that testimony forms the major evidentiary support for the trial court’s findings and ruling. Veterans Loan Authority v. Danzo, 210 So.2d 461 (Fla.3d DCA 1968).

Affirmed.


author: BARKDULL, Chief Judge.

text:
    Patricia C. TIZIANI, Appellant, v. Donald B. TIZIANI, Appellee.
    No. 75-1545.
    District Court of Appeal of Florida, Third District.
    Nov. 23, 1976.
    Bolles, Goodwin, Ryskamp & Welcher, Miami, for appellant.
    Stephens, Thornton & Schwartz and James F. Dougherty, II, Miami, for appel-lee.
    Before BARKDULL, C. J., and HAVER-FIELD and NATHAN, JJ.
   BARKDULL, Chief Judge.

By this appeal, a former wife seeks review of an order denying her modification of a final judgment of dissolution of marriage and denying her recovery of accrued arrearages in periodic rehabilitative alimony-

When the parties to this cause were divorced in 1972, the final judgment of dissolution provided for alimony and support as follows:

* * * * * *
“11. Periodic alimony is allowed as follows: In an amount equivalent to one-half of the husband’s earnings divided: (1) one-quarter to the wife for a period of three years, and after three years this alimony shall cease; (2) three-quarters of the husband’s one-half salary shall be awarded for child support. When the older child attains majority or is otherwise emancipated the child support shall be reduced by one-half, likewise with the child support for the younger child.”
* * * * * *

Just prior to the expiration of the three-year period provided for in the final judgment, the wife petitioned the trial court to modify same by awarding her permanent periodic alimony. She also sought to recover arrearages due her for periodic alimony, because the appellee had failed to account to her for one-quarter of one-half of his earnings during the three-year period in accordance with the final judgment. The grounds for modification for permanent periodic alimony were that the appellant was unable to validly pursue a course of gainful employment. After hearing, the trial judge denied all relief sought by the appellant.

Upon review of the record, we sustain the trial judge’s denial of modification of the final judgment which would entitle the appellant to periodic alimony. See: Lee v. Lee, 309 So.2d 26 (Fla.2d DCA 1975); Shaw v. Shaw, 334 So.2d 13 (Fla.1976). However, we reverse that portion of his order which denied her recovery for the alleged arrearage. The appellee took the position that he was only required to account to the wife for one-quarter of one-half of his base salary earnings. This is contrary to the terms of the final judgment of dissolution of marriage. It is noted that no appeal was taken from the final judgment; by its terms, it is clear the wife was entitled to one-quarter of one-half of his “earnings”. This was indicated in the record to be his take-home money after all deductions. The husband admitted that he earned additional sums over and above his base salary, but contended these were not covered by the final judgment. With this, we disagree. It was income that he received and that portion of it which represented additional net income to him was subject to the terms of the original final judgment.

Therefore, this cause is remanded to the trial court for further proceedings to determine the actual amount of income received by the appellee during the three-year period covered, and to award the appellant any arrearage that might appear.

Reversed and remanded, with directions.


text:
    FONTAINEBLEAU HOTEL CORPORATION, a Florida Corporation, Appellant, v. SOUTHERN FLORIDA HOTEL AND MOTEL ASSOCIATION, a corporation not for profit, Appellee.
    No. 75-1671.
    District Court of Appeal of Florida, Third District.
    Nov. 23, 1976.

      Richard B. Marx, Miami, and Richard N. Krinzman, North Bay Village, for appellant.
    Noriega, Bartel, Chopp, Schatz, Levine & Shuford, Miami, for appellee.
    Before HENDRY, HAVERFIELD and NATHAN, JJ.
   PER CURIAM.

Defendant, Fontainebleau Hotel Corporation, appeals a final judgment entered in favor of plaintiff, Southern Florida Hotel and Motel Association, directing the hotel tó pay the association membership dues for the years 1971 and 1972.

Plaintiff in October 1972 brought an action against the Fontainebleau to recover membership dues of $7,488 per year for 1971 and 1972 plus interest. The Fontaine-bleau had been a member of plaintiff association since 1965 and its owner-operator claimed that in 1971 he had orally communicated the hotel’s resignation. A summary judgment was entered for plaintiff, but this court reversed. Fontainebleau Hotel Corp. v. Southern Florida Hotel and Motel Association, 294 So.2d 390 (Fla.3d DCA 1974). Upon remand the case was tried non-jury and judgment was entered for plaintiff upon the finding of the trial judge that the hotel did not submit a written resignation as required by the by-laws and failed to prove that it orally resigned; in fact, its conduct manifested an intention to remain in the association by participation and attendance at association meetings including voting on major issues, receipt of association benefits including receipt of association monies, and representation in arbitration proceedings with the hotel employees during a labor dispute. In short, the court found the hotel’s conduct was inconsistent with that of a resigned member and consistent with that of a continuing member. The hotel appeals and claims the trial judge erred in finding it did not orally resign.

The record reveals competent substantial evidence to support the findings of the trial judge. 2 Fla.Jur. Appeals § 346 (1963).

Affirmed.


text:
    METROPOLITAN DADE COUNTY, a political subdivision of the State of Florida, Appellant, v. Sergeant Gerald MINGO, Appellee.
    No. 75-1728.
    District Court of Appeal of Florida, Third District.
    Nov. 23, 1976.

      Stuart L. Simon, County Atty. and Linda B. Lyman, Asst. County Atty., for appellant.
    Eugene P. Spellman and Denis Dean, Miami, for appellee.
    Before BARKDULL, C. J., and HENDRY and NATHAN, JJ.
   PER CURIAM.

This is an appeal by Metropolitan Dade County, respondent in the trial court, from an order entitled “Final Judgment” on a petition for writ of certiorari filed by Sergeant Gerald Mingo, appellee herein, to seek review of a decision of the county manager of Dade County, upholding a ten day suspension of Mingo from his position as a police officer, by the director of the Dade County Public Safety Department.

The record reflects that on July 23, 1974, Sergeant Mingo was suspended for ten days without pay for violations of two departmental rules: (1) acting in a manner tending to bring discredit upon himself or the department, and (2) knowingly entering or causing to be entered in any records, inaccurate, false or improper information. Min-go was informed of the suspension by letter from the director of the Public Safety Department stating that he was a passenger in a vehicle involved in a vehicular accident, that he left the scene without reporting the accident; and that during an official investigation he denied being at the scene of the accident or being in the vehicle which fled the scene.

Following a full administrative hearing, the hearing examiner made specific findings of fact with reference to the accident as well as to Mingo’s sobriety and his truthfulness in the Internal Review investigation. The hearing examiner further found that Mingo’s conduct justified the disciplinary action taken. On appeal to the county manager, on the basis of the hearing examiner’s findings and recommendations, and the record of the hearing, the decision was upheld, and the suspension was confirmed.

Mingo then sought review by filing a petition for writ of certiorari in the circuit court, which resulted in the final judgment herein appealed. The judge found that since by statute in Florida, the duty or responsibility to remain at the scene of an accident is imposed on the driver and not the passenger, there was not competent, substantial evidence to sustain the hearing examiner’s finding that Mingo left the scene of an accident without reporting it. The judgment provides that the ten day suspension “is deemed harsh in view of all the facts and circumstances and is hereby reduced to a five day suspension.”

On appeal from the final judgment, Dade County contends that the court (1) erred in finding that there was not competent substantial evidence to support the finding that Mingo left the scene of an accident without reporting it, and (2) erred in reducing the suspension from ten days to five. Mingo has cross-assigned as error the reduction of the suspension from ten days to five days as being inconsistent with the finding of lack of substantial, competent evidence.

In certiorari proceedings from an order of an administrative agency in a quasi-judicial proceeding, the circuit court is limited in the scope of its review to a determination of whether procedural due process had been accorded, whether essential requirements of law had been observed and whether the charges were supported by substantial, competent evidence. City of Miami v. Babey, 161 So.2d 230 (Fla.3rd DCA 1964); McGuaran v. Susskind, 175 So.2d 218 (Fla.3rd DCA 1965). The question of the weight and credibility of the evidence is for the administrative agency and not the reviewing court, even though the court may have reached a different conclusion on the same testimony. McFall v. Florida State Board of Dental Examiners, 173 So.2d 458 (Fla.2nd DCA 1965); Florida State Board of Dental Examiners v. Graham, 187 So.2d 104 (Fla.3rd DCA 1966). The court should not substitute its judgment for that of the administrative fact finder who heard the testimony and was in a position to evaluate the credibility of witnesses. Pauline v. Lee, 147 So.2d 359 (Fla.2nd DCA 1962).

Appellate review by this court is limited to a determination of whether the circuit court applied the applicable law and acted in accordance with established procedure. Morris v. City of Hialeah, 140 So.2d 615 (Fla.3rd DCA 1962); McGuaran v. Susskind, supra. Neither the circuit court in its appellate capacity, nor this court should reweigh the conflicting evidence. Chastain v. Civil Service Board of Orlando, 327 So.2d 230 (Fla.4th DCA 1976).

The Dade County Public Safety Department, through its director, has the authority to promulgate rules and regulations regarding the behavior and duties of its officers and is competent to determine what constitutes conduct of an employee “tending to bring discredit upon himself or the department.” Having a position of trust and civic responsibility, a police officer should instill respect for himself and the department, and should so demean himself as to merit the confidence and respect of the public. Becker v. Merrill, 155 Fla. 379, 20 So.2d 912 (1944). See Kennett v. Barber, 159 Fla. 80, 31 So.2d 44 (1947). Therefore, we hold that the circuit court erred in its determination that there was a lack of competent, substantial evidence to support the hearing examiner’s determination of fact, and we reverse the final judgment entered in this cause, and reinstate those findings together with the ten day suspension.

Reversed.


text:
    NATIONAL LUGGAGE SERVICES, INC., a Florida Corporation a/k/a National Luggage, Inc., Appellant, v. REEDY FORWARDING COMPANY, INC., a Florida Corporation, Appellee.
    No. 75-1865.
    District Court of Appeal of Florida, Third District.
    Nov. 23, 1976.
    Henry G. Simmonite, Miami, for appellant.
    Robert W. Hervey, Coral Gables, for ap-pellee.
    Before BARKDULL, C. J., and PEARSON and HAVERFIELD, JJ.
   PER CURIAM.

Defendant, National Luggage Services, Inc., seeks reversal of a final summary judgment for $3,703.47 plus costs in an action by appellee, Reedy Forwarding Company, Inc., to recover the additional amount of duty paid to the U.S. Customs Service on behalf of National.

Pursuant to National’s instructions, Reedy acted as importer of record and broker for the importation of certain merchandise from Europe. Upon arrival in the United States, immediate release of the merchandise was made possible because Reedy had posted an Immediate Delivery and Consumption Entry Bond with the U.S. Customs Service. Reedy sent National an invoice for services rendered which included $963.34 for import duties. National paid this duty and subsequently Customs demanded an additional duty of $3,703.47 on the grounds that the merchandise was subject to a 50% tariff rather than a 10% tariff as it consisted of products from Hungary and East Germany and not, as they were labeled, products from Switzerland. National contested the demand claiming that there should only be a 10% tariff levied on that half of the merchandise which consisted of products from Switzerland, West Germany or Italy. National instructed Reedy not to pay the additional duty; nevertheless, Reedy paid Customs the $3,703.47. Reedy contended that as nominal consignee of the merchandise, Customs looked to its bond as security and if payment was not made, Customs would attach the bond posted to guarantee such payment. When National refused to reimburse the $3,703.47, Reedy filed for recovery. National defended on the grounds that the additional duty demanded was in dispute, and Reedy made the payment voluntarily after being informed not to do so by National. Reedy moved for summary judgment which was granted.

Where the determination of liability depends upon the written instruments of the parties and the legal effect to be drawn therefrom, the question at issue is one of law only and ordinarily is determinable by summary judgment. Shafer & Miller v. Miami Heart Institute, Inc., 237 So.2d 310 (Fla.3d DCA 1970).

Under its bond with the U.S. Customs Service, Reedy clearly was liable for the additional duty and we find the trial judge was correct in granting summary judgment for Reedy. We also note that the bond contains a provision allowing National to post a bond to supersede the one posted by Reedy, but National failed to do so.

Judgment affirmed.


text:
    Millie Cushman FEATHERSTON, as Executrix and Trustee of the Estate of Mary Cushman Featherston, Deceased, Appellant, v. H. W. TOMPKINS, Jr., Appellee.
    No. 75-1881.
    District Court of Appeal of Florida, Third District.
    Nov. 23, 1976.
    Bradford, Williams, McKay, Kimbrell, Hamann & Jennings, Miami, for appellant.
    Howard Curry, Coral Gables, for appellee.
    Before BARKDULL, C. J., and HAVER-FIELD and NATHAN, JJ.
   PER CURIAM.

Defendant, Millie Featherston, appeals an order authorizing the partition and sale of real property thereby terminating a testamentary trust of which she is trustee.

Plaintiff, H. W. Tompkins, married defendant’s sister, Betty Featherston Tompkins, and during their marriage, they acquired a marital residence which is the subject of this litigation. Betty and H. W. were divorced and pursuant to the final decree, they became owners of the residence as tenants in common. H. W. was given occupancy of the house along with custody of the three minor children of the marriage. Thereafter Betty died and left her entire estate including the one-half interest in the marital residence to her mother, Mary Featherston. When Mary passed away, she devised all the property received from Betty’s estate to the three children born of the marriage between Betty and H. W. These properties, pursuant to the terms of Mary’s will, were placed in trust and her daughter, Millie Featherston, appellant herein, was named trustee. The properties were to be held in trust until each of the children attained the age of 21. As the three children attained the age of majority, they each signed a quit claim deed purporting to release their respective interests (as beneficiaries under the trust) in the marital residence to their father, H. W. Thereafter, H. W. filed for partition of the residence against Millie Featherston, as trustee, and prayed that he be permitted to sell the house. Defendant answered alleging a disability on the part of the youngest child at the time of the execution of his quit claim deed. After hearing argument of counsel, the chancellor entered an order authorizing H. W. to sell the subject real property, with % of the net proceeds of the sale going to him and the remaining to be held in trust by him until such time as the court makes a determination as to the disposition of the funds. We reverse.

Mary’s testamentary trust clearly provides that no distribution is to be made until the three children have attained the age of 21 years. Thus, the termination of the trust is plainly specified. Cf. Johns v. Townsend, 160 Fla. 213, 34 So.2d 565 (1948). It is conceded by the parties that the youngest child is not only under guardianship, but has not yet attained the age of 21 years. Thus, we conclude that the chancellor erred in the entry of his order prematurely terminating the trust by authorizing the sale and distribution of the net proceeds. Further, a court cannot terminate a trust when all the beneficiaries are not parties to a termination action, and without a determination that the purpose for which the trust was established has been accomplished. See Smith v. Mass. Mutual Life Ins. Co., 116 Fla. 390, 156 So. 498 (1934); Florida National Bank and Trust Company v. Blake, 155 So.2d 798 (Fla. 3d DCA 1963).

Reversed.

      . Including the 'A interest as tenant in common in the marital residence.

      . I. e., 18 years in Florida.


text:
    Frank A. SANDS and Kattie L. Sands, Appellants, v. Orlando MORON and Bankers Fire and Casualty Insurance Company, Appellees.
    No. 75-1882.
    District Court of Appeal of Florida, Third District.
    Nov. 23, 1976.

      Chonin & Levey and Stephen Maher, Miami, for appellants.
    Weinstein & Bavly and Arthur J. Mor-burger, Miami, for appellees.
    Before BARKDULL, C. J., and HENDRY and NATHAN, JJ.
   PER CURIAM.

This interlocutory appeal is from an order granting a motion to withdraw an appearance and answer which the law firm of Weinstein & Bavly, P. A. had filed for Orlando Moron and his co-defendant and insurer, Bankers Fire and Casualty Insurance Company, in an action for damages arising out of the alleged negligence of Moron in the operation of his automobile.

The point on appeal is whether the trial court erred in granting the motion which was supported by an affidavit of one of the lawyers who had filed the appearance and answer for both defendants. The affidavit sets forth that the appearance and answer were entered by the law firm without authorization.

It is appellant’s contention that appellees have failed to establish that they were, in fact, not authorized to represent defendant, Orlando Moron. We find merit in appellant’s contention and reverse.

The appellees, as moving parties had the burden of proving the facts alleged in its motion to withdraw and that defense counsel were not authorized by Orlando Moron to answer on his behalf. The evidence adduced was insufficient to support the motion. Therefore, the order appealed is reversed and the cause is remanded for further proceedings.

Reversed and remanded.


text:
    Jose Antonio LA GUARDIA et al., Appellants, v. Antonio PEREZ et al., Appellees.
    Nos. 75-1887, 76-155 and 76-242.
    District Court of Appeal of Florida, Third District.
    Nov. 23, 1976.
    Jerry Kahn and Seymour M. Litman, Miami, for appellants.

      Brian R. Hersh, Anthony Villaamil, Miami, and Lester G. Kates, Coral Gables, for appellees.
    Before PEARSON, HENDRY and HAV-ERFIELD, JJ.
   PER CURIAM.

These consolidated appeals are from an interlocutory order and two final judgments. The appellants in each instance are Jose Antonio LaGuardia, Amparo LaGuar-dia and Orlando Garcia. They were the intended purchasers under a contract for the purchase of a residence from Antonio Perez and Ramona Perez. The appeals are as follows: (1) from an interlocutory order enjoining the plaintiffs LaGuardia and the plaintiff Garcia from interfering with an appraisal of the property, (2) from a final judgment for Pedro Moreno, the plaintiff in a specific performance suit against the defendants Perez, and (3) from a final judgment for the defendants Perez in a specific performance suit by the plaintiffs, appellants here, LaGuardia.

The LaGuardias’ troubles began when they signed a deposit receipt contract to purchase the residence on which there was then outstanding a prior deposit receipt contract. The LaGuardias’ contract contained the following condition:

sfc * * * ¡k sfc
“All of the Purchasers understand and are aware that the Sellers have previously entered into a Deposit Receipt Contract dated September 11, 1972, in which one Pedro Pascual Moreno was the Purchaser. All of the Buyers further understand that the Sellers have declared the aforementioned Deposit Receipt Contract null and void and of no effect whatsoever, but that in the event that the Sellers are compelled to perform under the terms of the aforementioned Deposit Receipt Contract by Court order, then this contract shall be declared null and void and of no effect whatsoever and all monies deposited hereunder shall be returned to the Purchasers.”

The LaGuardias went into possession but paid a stipulated rent pending developments including the payment of the full deposit required. Moreno began his suit for the specific performance of his prior contract. The LaGuardias brought a specific performance suit to enforce their contract and the two suits were consolidated for trial proceedings.

The burden of these appeals is the La-Guardias’ contention that the trial court erred in finding that the contract between Moreno and Perez was valid and enforceable, thereby eliminating the equities of the appellants. The LaGuardias also urge that they did not receive a trial of their equitable claims. Our examination of the record convinces us that the trial court’s determination that Moreno’s prior contract was valid and enforceable is supported by sufficient evidence to sustain his finding on appeal. See Koplin v. Bennett, 182 So.2d 247 (Fla.1st DCA 1966). This fact having been determined, the LaGuardias’ contract was not enforceable by its own terms.

Affirmed.


text:
    Vincent T. MOLOUGHNEY, Appellant, v. TROPICAL PARK, INC., a Florida Corporation, Appellee.
    No. 75-1991.
    District Court of Appeal of Florida, Third District.
    Nov. 23, 1976.
    Ellis S. Rubin and Eliot R. Weitzman, Miami, for appellant.
    Taylor, Brion, Buker & Greene, Miami, for appellee.

      Before BARKDULL, C. J., and HENDRY and NATHAN, JJ.
   PER CURIAM.

Affirmed. Wise v. Delaware Steeplechase & Race Association, 28 Del.Ch. 532, 45 A.2d 547; Shapiro v. Queens County Jockey Club, 184 Misc. 295, 53 N.Y.S.2d 135; Hochberg v. New York City Off-Track Betting Corporation, 74 Misc.2d 471, 343 N.Y.S.2d 651; Section 95.11(3)(k), Florida Statutes (1975).


text:
    Bishop ROBERTS, Appellant, v. The STATE of Florida, Appellee.
    No. 76-125.
    District Court of Appeal of Florida, Third District.
    Nov. 23, 1976.
    Phillip A. Hubbart, Public Defender, and Julian S. Mack, Asst. Public Defender, for appellant.
    Robert L. Shevin, Atty. Gen., and Margarita Esquiroz, Asst. Atty. Gen., for appel-lee.
    Before PEARSON, HENDRY and HAV-ERFIELD, JJ.
   PER CURIAM.

Affirmed. See Russ v. State, 313 So.2d 758 (Fla.1975).


text:
    Karel A. BORN, Appellant, v. The STATE of Florida, Appellee.
    No. 76-127.
    District Court of Appeal of Florida, Third District.
    Nov. 23, 1976.
    Phillip A. Hubbart, Public Defender, and Beth C. Weitzner, Asst. Public Defender, for appellant.
    Robert L. Shevin, Atty. Gen., and Ira N. Loewy, Asst. Atty. Gen., for appellee.
    Before PEARSON, HENDRY and HAV-ERFIELD, JJ.
   PER CURIAM.

Appellant-defendant seeks reversal of a judgment of conviction and five year sentence based upon a jury verdict finding him guilty of involuntary sexual battery.

Appellant contends that the trial court erred in denying his motion for judgment of acquittal at the close of all the evidence because the evidence was insufficient to establish the element of force and lack of consent as required by Fla.Stat. § 794.-011(5).

After carefully considering the record on appeal and briefs we have concluded that no reversible error has been made to appear. State v. Smith, 249 So.2d 16 (Fla.1971); Fields v. State, 257 So.2d 241 (Fla.1971); Berezovsky v. State, 335 So.2d 592 (Fla.3d DCA 1976).

Affirmed.


text:
    Herbert Leonard LEE, Appellant, v. The STATE of Florida, Appellee.
    No. 76-177.
    District Court of Appeal of Florida, Third District.
    Nov. 23, 1976.
    Carling H. Stedman and Stephen L. Ras-kin, Miami, for appellant.
    Robert L. Shevin, Atty. Gen., Ira N. Lo-ewy, Asst. Atty. Gen., and Harold E. Rosen-feld, Legal Intern, for appellee.
    Before BARKDULL, C. J., and HENDRY and NATHAN, JJ.
   PER CURIAM.

Appellant seeks review of his conviction of the crime of acquiring or obtaining or attempting to acquire or obtain possession of a controlled substance and an order of revocation of probation. He contends that he is entitled to reversal on the grounds that there was insufficient evidence adduced to support the conviction and revocation of probation.

We have carefully reviewed the record on appeal in the light of the controlling principles of law and have concluded that the appellant’s contentions are without merit; the evidence adduced was sufficient to support the judgment and order appealed and no reversible error has been made to appear.

Affirmed.


text:
    Ezio ROSSETTI and Dorothy Rossetti, his wife, Appellants, v. EMPLOYERS COMMERCIAL UNION INSURANCE COMPANY OF AMERICA, a Foreign Corporation, and Country Club of Miami, Inc., a Florida Corporation, Appellees.
    No. 76-180.
    District Court of Appeal of Florida, Third District.
    Nov. 23, 1976.
    Petersen, McGowan & Feder, Miami, for appellants.
    Blackwell, Walker, Gray, Powers, Flick & Hoehl, Miami, for appellees.

      Before BARKDULL, C. J., and PEARSON and NATHAN, JJ.
   PER CURIAM.

Affirmed. Kagan v. Eisenstadt, 98 So.2d 370 (Fla. 3rd DCA 1957); Grall v. Risden, 167 So.2d 610 (Fla. 2nd DCA 1964).


text:
    Edward Alonzo FRIERSON, Appellant, v. The STATE of Florida, Appellee.
    No. 76-240.
    District Court of Appeal of Florida, Third District.
    Nov. 23, 1976.
    Phillip A. Hubbart, Public Defender, and Elliot H. Scherker, Asst. Public Defender, for appellant.
    Robert L. Shevin, Atty. Gen., and Ira N. Loewy, Asst. Atty. Gen., for appellee.
    Before BARKDULL, C. J., and HENDRY and NATHAN, JJ.
   PER CURIAM.

Edward Alonzo Frierson was charged by information with second degree murder. He was tried by jury, found guilty of third degree murder, convicted and sentenced to ten years in the state penitentiary. The sole question presented on this appeal is whether the trial court erred in denying defense counsel’s motion for a mistrial based on an allegedly inflammatory and prejudicial comment made by the prosecutor in closing argument.

As a general rule, a considerable degree of latitude is allowed prosecutors in closing argument to the jury, and logical inferences from the evidence are permissible. Wilson v. State, 305 So.2d 50, 52 (Fla. 3rd DCA 1974); Thomas v. State, 326 So.2d 413, 415 (Fla.1975), and cases cited therein. Accord: Johnsen v. State, 332 So.2d 69 (Fla.1976). Each case involving an alleged inflammatory or abusive remark by the prosecutor must be considered on its own merits and within the circumstances existing at the time the questionable statement was made, and if there is ample basis in the record to support the remark, a conviction will be affirmed. Darden v. State, 329 So.2d 287, 291 (Fla.1976).

In the context of the record in this case, the remark was neither so harmful, nor fundamentally tainted as to require a new trial. A mistrial is the remedy when the corrective instruction is denied or is inadequate or when the offense is repeated. Mabery v. State, 303 So.2d 369 (Fla. 3rd DCA 1974). Accordingly, we find that the trial court acted properly in instructing the jury to disregard the remark and in not granting a mistrial.

Affirmed.


text:
    Sylvia CABRERA, Appellant, v. Julio LAMAS, Appellee.
    No. 76-864.
    District Court of Appeal of Florida, Third District.
    Nov. 23, 1976.
    William A. Ingraham, Jr., and Jerry B. Schreiber, Miami, for appellant.
    Betty Kessler, Miami, for appellee.
    Before BARKDULL, C. J., and HENDRY and NATHAN, JJ.
   PER CURIAM.

Affirmed. See Pegg v. Bertram, 176 So.2d 918 (Fla.3d DCA 1965); Walker v. Walker, 254 So.2d 832 (Fla. 1st DCA 1971); and Citizens National Bank of Orlando v. Youngblood, 296 So.2d 92 (Fla. 4th DCA 1974).


text:
    STATE of Florida ex rel. Carlos A. MARTINEZ, Relator, v. FLORIDA DIVISION OF COMMERCE, DIVISION OF EMPLOYMENT COMPENSATION, Respondent.
    No. 76-927.
    District Court of Appeal of Florida, Third District.
    Nov. 23, 1976.

      Carlos A. Martinez, in pro. per.
    Kenneth H. Hart, Jr., Tallahassee, James R. Parks, Miami, for respondent.
    Before BARKDULL, C. J., and HAVER-FIELD and NATHAN, 33.

   NATHAN, Judge.

This is a petition for writ of certiorari by the claimant, Carlos A. Martinez, seeking review of an order of the Industrial Relations Commission, affirming the decision of the appeals referee dismissing for failure to prosecute, Martinez’ appeal from the claim examiner’s adverse ruling on a claim for unemployment compensation benefits. After considering the record, the petition, the briefs and oral argument, we have determined that the petition for writ of certiora-ri filed herein, be treated as a petition for writ of mandamus, and we find that Martinez is entitled to a peremptory writ of mandamus in this cause.

The record reflects that on October 22, 1975, Martinez was ruled ineligible for unemployment benefits; on October 31, he filed an appeal; and on November 7, he wrote to the Bureau of Unemployment Compensation in Miami, advising that he would be leaving Miami to look for a job, that he would be unable to report to the Bureau on his regularly scheduled days until his return and that “any notification” could be sent to his regular address in Miami. He then left for Brazil.

A hearing on the appeal was scheduled for November 21,1975. Although notice of hearing was allegedly mailed on November 14, respondent concedes that the mailing date of the notice of hearing did not appear on the notice, as required by law. The hearing was held as scheduled. Due to Martinez’ failure to appear, the appeals referee dismissed the appeal for failure to prosecute. Notice of the referee’s decision was mailed to Martinez at his last known address on November 24, 1975. Martinez returned to Miami on December 12. He filed an appeal to the Industrial Relations Commission on January 8, 1976, which was dismissed for lack of jurisdiction, since it was not initiated within ten days of the mailing of the referee’s decision.

We find that the denial of an appeal under the facts of this case constitutes a denial of due process. The Florida Constitution, Article I, Section 9, and Article V, Section 1. Therefore, we hold that Martinez is entitled to the issuance of a peremptory writ of mandamus to provide him with a hearing on his entitlement to unemployment compensation benefits. In view thereof, we assume that such hearing will be provided without the necessity for the issuance of a formal peremptory writ of mandamus.

It is so ordered.


text:
    FRUIT GROWERS EXPRESS COMPANY, Appellant, v. Dan P. McCLURE, Appellee.
    Nos. 76-1451, 76-1533.
    District Court of Appeal of Florida, Third District.
    Nov. 23, 1976.
    High, Stack, Davis & Lazenby and Alan R. Dakan, William L. Gray, III, Paul M. Stokes, Edward Magill, .Miami, Patrick H. Dickinson, Sarasota, for appellant.
    Holland & Knight and Warren M. Goodrich, Bradenton, Pallot, Stern, Proby & Adkins, Miami, for appellee.

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

Affirmed. See Gaboury v. Flagler Hospital, Inc., 316 So.2d 642 (Fla. 4th DCA 1975), where the rule is stated:

“The granting or refusal of the application for change of venue is within the sound discretion of the trial court and will not be disturbed upon review absent a demonstration of a palpable abuse or grossly improvident exercise of discretion. See, McMichael v. Harris, 127 Fla. 861, 174 So. 323 (1939); Spalding v. Von Zamft, 180 So.2d 208 (3rd DCA Fla.1965); Florida East Coast Railway Company v. Hardee, 167 So.2d 68 (3rd DCA Fla. 1964).”


author: SMITH, Judge.

text:
    STATE of Florida, Appellant, v. Glenn Louis ZAWISTOWSKI, Appellee.
    No. CC-392.
    District Court of Appeal of Florida, First District.
    Nov. 24, 1976.
    Robert L. Shevin, Atty. Gen., and A. S. Johnston, Asst. Atty. Gen., Tallahassee, for appellant.
    William J. Sheppard of Sheppard, Fletcher, Hand & Adams, Jacksonville, for appel-lee.
   SMITH, Judge.

The State appeals from an order entered by the Duval County circuit court pursuant to § 901.33, F.S.1975, directing the sheriff, other law enforcement agencies and the county clerk to expunge the record of ap-pellee’s arrest on August 25, 1972. The State contends appellee does not qualify for the statutory benefit of expungement.

The statute provides in part:

“If a person who has never previously been convicted of a criminal offense is charged with a felony or misdemeanor, but is acquitted or released without being adjudicated guilty, he may file a motion with the court .' . .to expunge the record of arrest . . . . The court [after notice] shall issue an order to expunge all official records relating to such arrest . . The court shall not enter an order expunging the records when there are several acts, or said person has been charged with several offenses . . . related to the offense or offenses for which such person had been charged and not found guilty, and when the charge and adjudication of non-guilt did not include all such charges or all such several acts. . . ”

Appellee was arrested and charged in August 1972 with both possession and sale of marijuana. The count charging sale was nolle pressed when appellee pleaded guilty to possession and he was placed on probation with adjudication of guilt withheld. His probationary term ended in April 1975. A month later, he was arrested and adjudicated guilty of driving under the influence of alcohol. Still later, he filed a motion to expunge the record pertaining to the August 1972 marijuana arrest, and it was granted. The State contends the nolle prosequi on the August 1972 charge of marijuana sale was not an “adjudication of nonguilt” and, therefore that the record of that arrest should not be expunged.

Section 901.33 seemingly leaves an ambiguity when it offers expungement of an arrest record for one “acquitted or released without being adjudicated guilty,” such as one released on probation with no adjudication, while withholding the statute’s benefits “when the . . . adjudication of nonguilt” — which a withheld judgment on one count and a nolle prosequi on another plainly are not — “did not include all” multiple charges simultaneously made. We choose to interpret this remedial statute in the spirit expressed in its first sentence, and will give those provisions effect over ambiguity later introduced. If, as the State contends, a nolle prosequi of one count does not constitute “adjudication of nonguilt,” then surely the same can be said of withholding adjudication. In such a case, therefore, the State would deny the statutory benefits to any who was not adjudicated innocent, although the statute plainly extends its remedy not only to one who “is acquitted” but also to one who is “released without being adjudicated guilty.” Appel-lee, having been so released, is entitled to the statutory benefits as they apply to his arrest record of August 25, 1972.

We likewise reject the State’s argument that appellee lost the benefits of § 901.33 because, before applying under the statute, he was arrested and adjudicated guilty of another offense in May 1975. The statute plainly extends its remedy to one who, at the time of arrest, “never previously” was convicted and who is then acquitted or released without adjudication of guilt. His entitlement to the remedy is not dis-seized by a subsequent adjudication.

We agree the order expunging the arrest record must be modified in accordance with Johnson v. State, 336 So.2d 93 (Fla.1976), which held unconstitutional the statutory mandate for “destruction of judicial records.” 336 So.2d 95. The order in substance will be affirmed but the case will be remanded for entry of an order lodging in the court and sealing all State records of appellee’s August 1972 arrest, subject to the court’s power for good cause to open it “under conditions wherein the ends of justice might require it.” 336 So.2d at 95.

AFFIRMED, but remanded for modification.

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