author: WALDEN, Chief Judge.

text:
    Robert B. RISMAN et al., Appellants, v. Margaret S. WHITTAKER et al., Appellees.
    No. 75-1192.
    District Court of Appeal of Florida, Fourth District.
    Feb. 6, 1976.
    Maurice M. Garcia, of Abrams, Anton, Robbins, Resnick & Schneider, Hallandale, for appellants.
    Floyd V. Hull, Jr., Fort Lauderdale, for appellee-Whittaker.
   WALDEN, Chief Judge.

This interlocutory appeal presents a novel question concerning service of process statutes.

This is a mortgage foreclosure action. Defendants are nonresidents with known out of state addresses. Constructive service of process was duly perfected upon the defendants via Fla.Stat. § 49.021 (1973), which provides:

“49.021 Service of process by publication, upon whom. — Where personal service of process cannot be had, service of process by publication may be had upon any party, natural or corporate, known or unknown, . . .”

Defendants moved to dismiss for lack of jurisdiction over the person and for insufficiency of process. The motion was denied. Defendants appeal. We affirm.

The point:

Where personal service of process is available under the provisions of Chapter 48, Florida Statutes (Long Arm Statute), may a plaintiff effect service of process by utilizing the provisions of Florida Statute 49.021. (Service by publication.)

To understand and decide this appeal we must study the Long Arm Statute:

“48.193 Acts subjecting persons to jurisdiction of courts of state.- — ■
“(1) Any person, whether or not a citizen or resident of this state, who personally or through an agent does any of the acts enumerated in this subsection thereby submits that person and, if he is a natural person, his personal representative to the jurisdiction of the courts of this state for any cause of action arising from the doing of any of the following:
* * * * * *
“(c) Owns, uses, or possesses any real property within this state.
******
“(2) Service of process upon any person who is subject to the jurisdiction of the courts of this state as provided in this section may be made by personally serving the process upon the defendant outside this state, as provided in § 48.-194. The service shall have the same effect as if it had been personally served within this state.” (Emphasis supplied.)
“48.194 Personal service outside state. —Service of process on persons outside of this state shall be made in the same manner as service within this state by any officer authorized to serve process in the state where the person is served. No order of court is required. An affidavit of the officer shall be filed, stating the time, manner, and place of service. The court may consider the affidavit, or any other competent evidence, in determining whether service has been properly made.”

Defendants urge that, since they were amenable to service of process under the Long Arm Statute, they necessarily would have to be served under its procedure as provided in Fla.Stat. § 48.194 (1973). They say the plaintiffs had no option under the circumstances to elect to serve constructively under Fla.Stat. § 49.021 (1973). Repetitively, defendants insist that they must be served personally outside the state if possible (and it is possible here) and that resort cannot be had to service of process by publication where such personal service is available. We disagree.

In essence, defendants base their position upon the opening sentence of Fla.Stat. § 49.021:

“Where personal service of process cannot be had, service of process by publication may be had upon any party,..."

and the caption of Fla.Stat. 48.194, “Personal service outside state.” Defendants reason that upon the enactment of the Long Arm Statute non-residents (meeting its criteria) can now be “personally served” in foreign states as concerns Florida litigation. Thus, since personal service can be had, constructive service of process by publication by the very opening words of Fla.Stat. § 49.021 (1973) is not authorized.

Now to plaintiffs’ position. They agree that the Long Arm Statute was available and could have been employed by them to obtain personal service of process outside the state upon the non-resident defendants. However, they insist that they had an unbridled option here to elect to obtain service of process by publication upon defendants via Fla.Stat. § 49.021 (1973). In other words, plaintiffs say they were free to travel either route as they wished depending upon the practicabilities and the kind of jurisdiction they wished to obtain.

In support of their position plaintiffs point to the permissive word, “may,” found in the Long Arm Statute:

Fla.Stat. 48.193(2): “Service of process upon any person who is subject to the jurisdiction of the courts of this state as provided in this section may be made by personally serving the process upon the defendant outside this state, .” (Emphasis supplied.)

We agree with plaintiff's’ position and believe that it provides the most reasonable constructions and workable rationale, particularly since there is no overriding consideration of due process, or otherwise.

The Long Arm Statute, Fla.Stat. § 48.-193 (1973), was enacted in 1973, long subsequent in point of time to the statutes providing for personal service upon defendants inside Florida, see Fla.Stat. § 47.-13 (1941), and the statutes providing for substituted service — service of process by publication, see Fla.Stat. § 48.02 (1941).

Thus, prior to the enactment of the Long Arm Statute the then process statutes operated simply. Plaintiffs had to obtain personal service of process upon a defendant, if he could, by serving that defendant personally in Florida. In so doing such plaintiffs achieved in personam jurisdiction. Where such personal service was unavailable the alternative open to plaintiffs was to obtain service of process by publication. In so doing such plaintiffs achieved only in rem jurisdiction. Thus, as these conditions existed, non-resident persons doing acts in Florida (as now described in Fla. Stat. § 48.193(1), (2) (1973)) could escape in personam responsibility by simply remaining outside Florida boundaries and thereby often prevent plaintiffs in Florida from obtaining full relief.

And so the Florida Legislature, responding to the needs of Florida plaintiffs and in the modern trend, enacted the Long Arm Statute. It made easier the paths of Florida plaintiffs by giving them a new and additional jurisdictional possibility. See Atlas Van Lines, Inc. v. Rossmoore, 271 So.2d 31 (2d DCA Fla.1972), and 24 U.Miami L.Rev. 433, 442 n. 6 (1970), citing to deLeo v. Childs, 304 F.Supp. 593 (D.Mass.1969):

“67. Long-arm statutes are expressions of a legislative attempt to create a new basis of jurisdiction which, within constitutional limitations, will afford the citizens of a State a forum for ca%tses of action arising from the activities of nonresidents within the State These statutes codify a new type of personal jurisdiction based on activities deemed more relevant than mere physical presence of a defendant or his agent in a State. As long as constitutional limits are not crossed, a court should interpret the statute to effectuate a State’s legitimate desire ' to protect its citizens. .” 304 F.Supp. 595. (Emphasis added.)

It, as we interpret the legislative intent, was not designed to hamstring, make more difficult, or limit the rights of Florida plaintiffs. We think that currently plaintiffs have simply an additional jurisdictional choice.

Taking the statutory enactment, time sequences and the fact that the Long Arm Statute says that its terms “may” be employed, we believe that the employment of the Long Arm Statute is permissive and not mandatory, as suggested by defendants. Harper v. State, 217 So.2d 591 (4th DCA Fla.1968); Brooks v. Anastasia Mosquito Control District, 148 So.2d 64 (1st DCA Fla.1963); Fixel v. Clevenger, 285 So.2d 687 (3d DCA Fla.1973); Spencer v. Spencer, 242 So.2d 786 (4th DCA Fla.1970); 30 Fla.Jur., Statutes § 11 (1974).

And, if we may be heard to wonder about a practical matter not germane to this appeal, we are at a loss to understand why the non-resident defendants here are protesting when the use of the Long Arm Statute would result in their greater exposure via in personem jurisdiction, instead of in rem — particularly when plaintiffs here pray for a deficiency judgment.

Defendants cite McDaniel v. McElvy, 91 Fla. 770, 108 So. 820 (1926); Smetal Corporation v. West Lake Inv. Co., 126 Fla. 595, 172 So. 58 (1936); Gmaz v. King, 238 So.2d 511 (2d DCA Fla.1970); Klinger v. Milton Holding Co., 136 Fla. 50, 186 So. 526 (1938), for the proposition that constructive service by publication cannot be resorted to where the defendants could be personally served with process. We note that all such cases were decided prior to the enactment of the Long Arm Statute and so necessarily the reference to personal service means service upon defendants within the State of Florida under Fla.Stat. § 48.031 (1973). We distinguish them on this basis and do not choose to interpolate a meaning that such “personal service” means also personal service on non-resident defendants outside the state under the Long Arm Statute.

As a final thought, we believe it manifest that it is more difficult, more time consuming’, and more expensive to achieve personal service upon non-residents under the Long Arm Statute when compared to service by publication. We are unwilling and believe it unnecessary to impose the mandatory use of the Long Arm Statute, but rather leave its use optional and its provisions alternatives.

We hold that, even though personal service of process upon non-residents is available under the provisions of Chapter 48, Florida Statutes, a plaintiff may elect at his option to effect service of process by utilizing the provisions of Fla.Stat. §'49.-021 (1973).

Affirmed.

CROSS and DOWNEY, JJ., concur.

      . Since the instant non-resident defendants were not operating aircraft, boats or motor vehicles in Florida, or doing business in Florida, we do not plumb the exceptions found in Fla.Stat. §§ 48.181, 48.19, 48.171 (1973) and their predecessor statutes.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    SOUTH CAROLINA INSURANCE COMPANY et al., Petitioners, v. R. Damasco PASALODOS et al., Respondents.
    No. 75-2117.
    District Court of Appeal of Florida, Fourth District.
    Feb. 6, 1976.
    Tully Scott, of Corlett, Merritt, Killian & Sikes, Miami, for petitioners.
    Peter A. Portley, of Zimmerman, Haywood & Portley, Pompano Beach, for respondents.
   PER CURIAM.

Petition for Writ of Certiorari is denied upon authority of R. J. Brown, Inc. v. Seminerio, 246 So.2d 629 (Fla.App. 4th, 1971).

Denied.

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


author: OWEN, Judge.

text:
    The HERTZ CORPORATION, Appellant, v. Marcia RENTZ et al., Appellees.
    No. 75-2255.
    District Court of Appeal of Florida, Fourth District.
    Feb. 6, 1976.

      Brian D. Hill, of Maguire, Voorhis & Wells, P. A., Orlando, for appellant.
    Dennis J. Hightower, of Whitaker & Koepke & Associates, Orlando, for appel-lees.
   OWEN, Judge.

This suit was filed in Orange County, seeking damages for personal injuries arising out of an automobile accident occurring in Jackson County, Florida. A defendant seeks review of an order denying its motion for change of venue from Orange to Jackson County pursuant to Fla. Stat. § 47.122 (1973).

A motion for change of venue pursuant to this statute is addressed to the sound judicial discretion of the court. The exercise of that discretion will not be disturbed except upon a clear showing of abuse. Gaboury v. Flagler Hospital, Inc., 316 So.2d 642 (Fla.App.4th, 1975).

The defendants are all nonresidents. The plaintiffs reside in Gadsden County (adjacent to Jackson County). Two eyewitnesses to the automobile accident and two other potential witnesses who arrived on the accident scene within an hour all reside in Jackson County. The accident was investigated by police officers in Jackson County. Some medical treatment was administered to plaintiffs in Jackson County by physicians located there. Additionally, plaintiffs received medical treatment by physicians located in South Georgia and in Tallahassee, Florida. Two eyewitnesses reside in the State of Oklahoma. The only connection which Orange County has with the case is that the nonresident corporate defendant has an agent or representative there.

Under the above facts we conclude (as did the court in Peterson, Howell & Heather v. O'Neill, 314 So.2d 808 (Fla.App.3rd, 1975) on closely analogous facts) that the trial court abused its discretion in denying the motion for change of venue pursuant to Fla.Stat. § 47.122 (1973). The order is reversed and the cause remanded for further proceedings consistent herewith.

Reversed and remanded.

MAGER and DOWNEY, JJ., concur.


text:
    Clinton COLEMAN, Appellant, v. STATE of Florida, Appellee.
    No. 74-779.
    District Court of Appeal of Florida, Second District.
    Feb. 4, 1976.

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

The only point on appeal which merits consideration is appellant’s contention that he should have been given credit for the time he spent in jail prior to his resentenc-ing pursuant to Fla.Stat. § 921.161 (1973). While it is difficult to see how this would be of any benefit to a person receiving a life sentence, on the off chance that jail time credit might have some effect on his right to parole, the case is remanded with directions to modify the sentence to give appellant the appropriate credit. The presence of the appellant will not be required for this purpose. Simari v. State, Fla.App. 1st, 1975, 309 So.2d 183. In all other respects, the judgment and sentence are

Affirmed.

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


text:
    Steven Jon ROBERTS, Appellant, v. STATE of Florida, Appellee.
    No. 74-1314.
    District Court of Appeal of Florida, Second District.
    Feb. 4, 1976.
    James A. Gardner, Public Defender, Sarasota, and Douglas A. Wallace, Asst. Public Defender, Bradenton, for appellant.
    Robert L. Shevin, Atty. Gen., Tallahassee, and Mary Jo M. Gallay, Asst. Atty. Gen., Tampa, for appellee.
   PER CURIAM.

Roberts pleaded nolo contendere to breaking and entering with intent to commit a felony, reserving the right to appeal any “point which might arise from any search or seizure or arrest.” He appeals now, arguing that incriminating statements made after an allegedly illegal arrest, and while he was “high” on drugs, should be suppressed. Even assuming that Roberts has properly preserved these issues for appellate review, the record before us adequately supports the findings of the trial judge (though made and entered in a companion case arising out of the same incident, and which we are allowing appellant to assail here notwithstanding a motion to suppress was not in fact made in the instant case) that there was probable cause for appellant’s arrest and that his subsequent statements were voluntarily and intelligently made.

The judgment is therefore affirmed.

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


text:
    Larry Jerome RUSHING, Appellant, v. STATE of Florida, Appellee.
    No. 74-1022.
    District Court of Appeal of Florida, Second District.
    Feb. 4, 1976.
    James A. Gardner, Public Defender, Sarasota, and Ellen Condon, Asst. Public Defender, Tampa, for appellant.
    Robert L. Shevin, Atty. Gen., Tallahassee, and Richard G. Pippinger, Asst. Atty. Gen., Tampa, for appellee.
   PER CURIAM.

Appellant was charged by information with delivery of heroin in violation of Fla.Stat. § 893.13, and after a jury trial, was found guilty as charged. The jury was instructed on “sale,” rather than “delivery,” and a final judgment was entered finding appellant guilty of sale of heroin. This appeal challenges, among other matters, the validity of the final judgment. Inasmuch as the evidence was sufficient to sustain a conviction of either sale or delivery and since the trial court in its instructions to the jury defined the word “sale” in terms that necessarily included a “delivery” for purposes of § 893.13, we find no reversible error. However, the judgment should be corrected to conform to the body of the information.

We have considered the other points raised by appellant and find them to be without merit. The judgment is therefore affirmed, but the cause is remanded for correction of the final judgment in accordance with this opinion.

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


author: GRIMES, Judge.

text:
    Lewis Joseph LACKOS, Appellant, v. STATE of Florida, Appellee.
    No. 74-1320.
    District Court of Appeal of Florida, Second District.
    Feb. 4, 1976.
    Jack O. Johnson, Public Defender, Bar-tow, and Ellen Condon, Asst. Public Defender, Tampa, and Wayne Chalu, Legal Intern, Tampa, for appellant.
    Robert L. Shevin, Atty. Gen., Tallahassee, and Robert J. Landry, Asst. Atty. Gen., Tampa, for appellee.
   GRIMES, Judge.

Appellant was convicted of buying, receiving or aiding in the concealment of stolen property. There was ample evidence to support the judgment. The issue which prompts our concern is whether the court erred in permitting the state to amend its information during the course of the trial.

In the information, the owner of the property was specified to be Remington Electric Razors, Incorporated. During the state’s case, the local manager of the company from which the electric razors had been stolen testified that the correct corporate name of the firm at the time of this incident was Remington Electric Shavers, a Division of Sperry Rand Corporation. At this point, the state moved to amend its information to set forth the correct corporate name. Upon objection, the court offered to continue the trial for as long as reasonably necessary for the appellant to seek to obtain evidence to indicate that he would be prejudiced by the amendment. Appellant’s counsel asserted that prejudice was beside the point and declined the offer of continuance. Thereupon, the state was permitted to amend, and the appellant was subsequently convicted.

In Alvarez v. State, 1946, 157 Fla. 254, 25 So.2d 661, the information charged the defendant with breaking and entering a building owned by Harold McGucken with intent to commit a felony, to wit: grand larceny. In the middle of the trial, it developed that the building was actually owned by McGucken Liquor Stores, Inc., a corporation. Over the defendant’s objection, the court permitted the state to amend its information by striking out the name of the alleged owner and inserting in lieu thereof the proper name. This was held to be reversible error by the Supreme Court. The Supreme Court followed Alvarez in Sipos v. State, Fla.1956, 90 So.2d 113, when it held that the lower court erred during the trial in permitting an information charging burglary of a building owned by Sterchi Brothers, Inc., a corporation, to be amended to read Sterchi Brothers Stores, Inc., a corporation.

As in the case of burglary, ownership is an essential element of the charge of buying, receiving or aiding in the concealment of stolen property. Pelaez v. State, 1932, 107 Fla. 50, 144 So. 364. Therefore, must this case be reversed when there is not even the remote suggestion that appellant was prejudiced by the amendment? We think not.

Alvarez is distinguishable to the extent that the opinion was predicated in large part upon the conclusion that the defendant had been tried in violation of Florida constitutional provisions which require that informations be filed under oath. Unlike Alvarez, the information in the instant case was refiled and resworn. By the same token, the information in Sipos had not been refiled and reverified. Of further significance is the fact that the Sipos amendment occurred after the taking of testimony was closed, and the court denied the defendant’s request for a continuance.

RCP 3.140(c), first adopted in 1967, is apropos to this issue. The rule reads as follows:

“(o) Defects and Variances. No indictment or information, or any count thereof, shall be dismissed or judgment arrested, or new trial granted on account of any defect in the form of the indictment or information or of misjoinder of offenses or for any cause whatsoever, unless the court shall be of the opinion that the indictment or information is so vague, indistinct and indefinite as to mislead the accused and embarrass him in the preparation of his defense or expose him after conviction or acquittal to substantial danger of a new prosecution for the same offense.”

While similar language was contained in former Fla.Stat. § 906.25 when Alvarez and Sipos were decided, there is no indication in these opinions that the statute was considered.

The modern trend in both criminal and civil proceedings is to excuse technical defects which have no bearing upon the substantial rights of the parties. When procedural irregularities occur, the emphasis is on determining whether anyone was prejudiced by the departure. A defendant is entitled to a fair trial, not a perfect trial. Michigan v. Tucker, 1974, 417 U.S. 433, 94 S.Ct. 2357, 41 L.Ed.2d 182. Appellant received a fair trial.

Affirmed.

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


author: HOBSON, Acting Chief Judge.

text:
    David Blane DEAVER, Appellant, v. STATE of Florida, Appellee.
    No. 75-248.
    District Court of Appeal of Florida, Second District.
    Feb. 4, 1976.
    James A. Gardner, Public Defender, and Douglas A. Wallace, Asst. Public Defender, Bradenton, for appellant.
    Robert L. Shevin, Atty. Gen., Tallahassee, and Mary Jo M. Gallay, Asst. Atty. Gen., Tampa, for appellee.
   HOBSON, Acting Chief Judge.

We have considered the briefs and the record on appeal and have determined that appellant has failed to demonstrate reversible error. An appeal of an order revoking probation may review only proceedings after the order of probation. Sec. 924.06(2) F.S.; Hardrick v. State, Fla.App.1974, 293 So.2d 135. At any rate, the error complained of was harmless. Williams v. State, Fla.1975, 316 So.2d 267; Hall v. State, Fla.1975, 316 So.2d 279.

The trial court erred in failing to give appellant credit for all the time he spent in the county jail before sentence in compliance with § 921.161(1) F.S. The court properly credited appellant in Circuit Court Case No. 73-348 with 89 days spent in jail after his most recent arrest, even though during that time he was held to answer for other charges; Voulo v. Wainwright, Fla.1974, 290 So.2d 58; Miller v. State, Fla.App.1st, 1974, 297 So.2d 36; Lawrence v. State, Fla.App.4th, 1975, 306 So.2d 561, but failed to give him credit for 128 days he had spent in jail on the charge prior to the recent arrest. Appellant was entitled to credit for all jail time served before sentence. Sec. 921.161(1) F.S.; Grine v. State, Fla.App.2nd 1974, 301 So.2d 122; Lawrence, supra; Nash v. State, Fla.App.2nd, 1975, 313 So.2d 118. See also State v. Jones, Fla.1976, 327 So.2d 18.

The judgments appealed are affirmed, but the cause is remanded to the trial court with directions that the court enter a corrective sentence in Circuit Court Case No. 73-348 specifically giving appellant credit for the additional 128 days he spent in jail. Appellant need hot be returned to the court for this purpose.

The judgments are affirmed and the cause is remanded with directions.

BOARDMAN and SCHEB, JJ., concur.


text:
    Frances Pardo LOPEZ, Appellant, v. Manuel D. LOPEZ, Appellee.
    No. 75-434.
    District Court of Appeal of Florida, Second District.
    Feb. 4, 1976.
    Richard A. Hirsch, of Levine, Freedman & Hirsch, P. A., Tampa, for appellant.
    Ralph W. Rinehart, Tampa, for appellee.
   PER CURIAM.

Having reviewed the lengthy record in this hotly contested case, we find that there is sufficient evidence to support the trial court’s disposition of the matter. However, since it is apparent that the judge declined to grant permanent alimony primarily upon his conclusion that appellant was possessed of valuable property in her own right and since it will likely take appellant substantial time to convert this property into income-producing assets by way of sale or partition, the case is remanded with directions to extend the $50 per week rehabilitative alimony provision for two additional years beyond the one year period set forth in the judgment. In all other respects, the judgment is

Affirmed.

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


text:
    C. RAVEL, Appellant, v. M. C. RAVEL, Appellee.
    No. 75-1220.
    District Court of Appeal of Florida, Second District.
    Feb. 6, 1976.

      John T. Allen, Jr., St. Petersburg, for appellant.
    Jerry C. Cobb, of Wightman, Rowe, Weidemeyer, Jones & Turnbull, Clear-water, for appellee.
   GRIMES, Judge.

This appeal involves the question of whether the lack of prosecution contemplated by Rule 1.420(e), RCP, pertains to proceedings occurring subsequent to the entry of a final judgment.

The final judgment determined that appellant, who was the record owner of certain real property, held a one-half interest in constructive trust for appellee. Appellant was directed to file an affidavit setting forth the expenses which he had incurred incident to the acquisition and maintenance of the property and the profits which he had derived from use of the property. Upon the payment to appellant “of one half the net cost, as determined by the court,” the appellant was directed to deed a one-half interest in the property to appellee. The judgment was affirmed by this court on appeal. Thereafter, appellant filed the required affidavit of expenditures and profits. Appellee then filed an objection to certain expense items in the affidavit. No hearing was ever held for the purpose of determining the net cost, and there was no further record activity in the case until appellant filed a motion to dismiss for lack of prosecution some four and one-half years later. Appellant filed an interlocutory appeal from the order denying this motion.

Appellee suggests that sufficient non-record activity directed toward moving the case forward had occurred during the interim so as to come within the “or otherwise” provision of the rule. Musselman Steel Fabricators, Inc. v. Radziwon, Fla.1972, 263 So.2d 221; Whitney v. Whitney, Fla.App. 2nd 1970, 241 So.2d 436. We need not reach this point because we hold that the rule only requires the dismissal of a case where it has not been prosecuted toward final judgment for the requisite period of time. Once final judgment has been entered the rule no longer applies. A contrary construction of the rule would appear to have the practical effect of nullifying an otherwise valid judgment. If appellant felt aggrieved because no further proceedings had transpired, he could have always brought matters to a head by setting down a hearing.

Affirmed.

HOBSON, A. C. J., and NORRIS, WILLIAM A., Jr., Associate Judge, concur.


author: BOARDMAN, Judge.

text:
    STATE of Florida, Appellant, v. Mary L. BOYLE and Neil D. Pushe, Appellees.
    Nos. 75-778, 75-779 and 75-780.
    District Court of Appeal of Florida, Second District.
    Feb. 4, 1976.
    Robert L. Shevin, Atty. Gen., Tallahassee, and William I. Munsey, Jr., Asst. Atty. Gen., Tampa, for appellant.
    Alan R. Williams and Franklyn Louder-back, St. Petersburg, for appellees.
   BOARDMAN, Judge.

The appellees were charged with the possession of marijuana seized in a search of the automobile in which they were parked. Ms. Boyle was also charged with possession of paraphernalia. The trial court, after hearing, granted appellees’ motion to suppress on the ground that the officer had searched the car prior to arresting appellees. We reverse.

Officer White, patrolman, City of Clear-water, was patrolling Sand Key at 2:45 A. M. on February 8, 1975, when he noticed a car parked at a construction site which had been posted against trespassers. When White approached the vehicle on foot, the driver began backing the car up in an apparent attempt to drive past him. White stopped the car and requested identification. When the driver, Pushe, rolled down the window to comply, White saw smoke coming from inside the vehicle and recognized the strong odor of burning marijuana. He had the appellees leave the car and sit on the ground. White searched the car and after finding marijuana “roaches” in the ashtray and three baggies of marijuana in the glove compartment, he advised the appellees that they were under arrest. Continuing the search, White found two baggies in Ms. Boyle’s purse and one on the ground where she had exited the vehicle. He also found a pipe in the car which a “presumptive” test showed to contain marijuana.

We need not decide whether the search of the car was properly incident to a lawful arrest. The smell of burning marijuana, when combined with the other circumstances previously recited herein, was sufficient to establish probable cause to believe the car contained contraband and to authorize its warrantless search. E. g., Berry v. State, Fla.App.1st, 1975, 316 So.2d 72; State v. Sanders, Fla.App.2nd, 1970, 239 So.2d 120. The persons of the appel-lees were not searched until after they were informed that they were under arrest.

The order is therefore reversed and the cause remanded ■ for further proceedings.

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

      . White had received training in recognizing the smell of marijuana and had previously smelled the drug between 500 and 1000 times.


text:
    Freddie HORN, Appellant, v. MARITIME OVERSEAS CORPORATION, a corporation, Appellee.
    No. Y—191.
    District Court of Appeal of Florida, First District.
    Feb. 10, 1976.
    Rhodes Gay, of Rogers, Towers, Bailey, Jones & Gay, Jacksonville, for appellant.
    Aimer W. Beale, II, of Toole, Taylor, Moseley & Milton, Jacksonville,- for ap-pellee.
   PER CURIAM.

We have considered the record, briefs and arguments of counsel and find substantial evidence to support the rulings of the trial judge. The final judgment is, therefore, affirmed.

BOYER, C. J., and RAWLS and Mc-CORD, JJ., concur.


author: RAWLS, Acting Chief Judge.

text:
    Ralph C. DAVIS, Executive Director, Department of Highway Safety and Motor Vehicles of Florida, Appellant, v. Barbara Mary ROOS, Appellee.
    No. X-369.
    District Court of Appeal of Florida, First District.
    Feb. 3, 1976.
    Edwin E. Strickland and Enoch J. Whitney, Tallahassee, for appellant.
    Stewart E. Parsons of Parsons & Warren, Tallahassee, for appellee.
   RAWLS, Acting Chief Judge.

Barbara Mary Roos is married to Robert R. Burke. Subsequent to her marriage she applied to the Department of Highway Safety and Motor Vehicles for a Florida driver’s license in her maiden name of Barbara Mary Roos. The department refused to process her application, informing her that she would have to use the surname of Burke. After exhausting her administrative remedies, appellee sought and procured a peremptory writ of mandamus in the Circuit Court of Leon County finding, inter alia:

“2. The Court further finds that Relator did not adopt her husband’s surname ‘Burke’, at the time of or subsequent to her marriage to the said Robert R. Burke but rather she has intended to and in fact has used and has been known by the name BARBARA MARY ROOS; said name having been given to Relator at birth.
“3. The Court further finds that Relator’s surname did not by operation of law change to that of her husband’s at the time of their marriage and that through choice, intention and use, Relator has legally retained her birth name.”

The trial court further directed appellant to receive and process appellee’s application for a Florida driver’s license in the name of Barbara Mary Ross.

Distilled to its basic substance, the essential question is: Did the recitation of marital vows between Roos and Burke legally change her name to that of Burke, even though she rejected it? The answer is no.

The basic dialogue between the parties revolves around the question of what was the common law of England on July 4, 1776. Appellant contends and cites as his primary authority the Supreme Court’s opinion in Carlton v. Phelan, wherein the court stated:

“ ‘The law recognizes one Christian name or given name and one family surname ... At marriage the wife takes the husband’s surname, * * * but otherwise her name is not changed.’ Uihlein v. Gladieux, 74 Ohio St. 232, 78 N.E. 363, 365 . ."

Phelan involved a suit styling the defendant as “Mrs.” The Supreme Court, in reviewing a final judgment granting a demurrer in favor of “Mrs.” Phelan, stated that the only question presented was whether the declaration affirmatively showed that the defendant was married and thus immune from enforcement of a contract of guaranty as to the payment of promissory notes executed and payable in Florida, since such an action would be against the public policy of Florida. The court noted that the prefix “Mrs.” shows undoubtedly that at sometime defendant had been married to one Francis M. Phe-lan, Sr., but that such prefix is not a name, but a mere title that usually distinguishes the person referred to as a married woman. In holding that “Mrs.” might well be properly used by widows and divorcees and thus not establishing that defendant was a married woman at the time suit was filed, the Supreme Court necessarily held that the question of defendant’s marital status was a factual one and not resolved by the prefix “Mrs.” Of significance is that Phelan does not hold that a recitation of marital vows, as a matter of law, changes the surname of the woman.

Since Florida has not resolved the question either by statute or decisional law, we must turn to other jurisdictions. Clearly in point is the New York Court of Appeals case of Chapman v. Phoenix National Bank. There the court, in ruling upon the sufficiency of constructive service of process, stated:

“For several centuries, by the common law among all English speaking people, a woman, upon her marriage, takes her husband’s surname. That becomes her legal name, and she ceases to be known by her maiden name. By that name she .must sue and be sued, make and take grants and execute all legal documents. Her maiden surname is absolutely lost, and she ceases to be known thereby.” (emphasis supplied)

In People ex rel. Rago v. Lipsky, an Illinois appellate court cited with approval the New York décision in Chapman and a decision of the Texas Supreme Court in Freeman v. Hawkins, This line of cases is founded upon the conclusion that pursuant to English common law a woman was required, upon marriage, to abandon her maiden name and acquire her husband’s surname.

It is our conclusion that history or precedent fails to support the "Chapman” enunciations.

The common law regarded the Christian name, with the sanction of baptism behind it, as all important. No requirement demanded that a woman adopt the surname of her husband when she married, and early records showed that husband and wife often were known by different names. In State ex rel. Krupa v. Green; the Ohio appellate court confirmed the foregoing when it stated:

“It is only by custom, in English speaking countries, that a woman, upon marriage, adopts the surname of her husband in place of the surname of her father.
“In England, from which came our customs with respect to names, a woman is permitted to retain her maiden surname upon marriage if she so desires.
“M. Turner Samuel, in his book on ‘The Law of Married Women’ at page 34S, states:
‘In England, custom has since ordained that a married woman takes her husband’s name. This practice is not invariable; not compellable by law . . A wife may continue to use her maiden . . . name . . .

An excellent treatise upon the fallacy of Chapman and its progeny is found in the Supreme Court of Wisconsin’s opinion in Kruzel v. Podell, wherein that court in a well reasoned opinion decided that a woman upon marriage adopts the surname of her husband by thereafter customarily using that name, but no law required that she do so.

The case of Forbush v. Wallace is supportive of appellant’s position. There, a three judge federal panel upheld an Alabama administrative regulation requiring a married woman to obtain her driver’s license in the surname of her husband. The decision in Forbush was squarely bottomed upon the court’s observation that: “ . . . Alabama has adopted the common law rule that upon marriage the wife by operation of law takes the husband’s surname.” (Emphasis supplied.) Such may well be the common law as construed by the Alabama courts, however, after reviewing the extensive authorities on the subject, we conclude that the common law of England on July 4, 1776, did not by operation of law engraft the husband’s surname upon the wife. In Florida there is not statute or judicial decision requiring a woman to take her husband’s surname upon marriage. Although it is the general custom for a woman to change her name upon marriage to that of the husband, the law does not compel her to do so.

The judgment appealed is affirmed.

McCORD, J, and SMITH, SAMUEL S., Associate Judge, concur.

      . Florida Statute 2.01.

      . Carlton v. Phelan, 100 Fla. 1164, 131 So. 117 (1030).

        . Chapman v. Phoenix National Bank, 85 N.Y. 437 (1881).

      . As we view the opinion, a good example of: “Bad facts make bad law”.

      . People ex rel. Rago v. Lipsky, 327 Ill.App. 63, 63 N.E.2d 642 (1945).

      . Freeman, v. Hawkins, 77 Tex. 498, 14 S.W. 364 (1890).

      . Dunn v. Palermo, 522 S.W.2d 679 (Tenn.1975); Arnold, Personal Names, 15 Yale L.J. 227 (1905).

      . State ex rel. Krupa v. Oreen, 114 Ohio App. 497, 177 N.E.2d 616 (1961).

      . “Pay your money and take your choice.” Appellant cites Bishop on Marriage and Divoree, Vol. 2, Sec. 704a (6th ed. 1881), which states: “Name. — The rule of law and custom is familiar, that marriage confers on the woman the husband’s surname.”

      . Kruzel v. Podell, 67 Wis.2d 138, 226 N.W.2d 458 (1975); Stuart v. Board of Supervisors of Elections for Howard County, 266 Md. 440, 295 A.2d 223 (1972) ; and “The Right of a Married Woman to Use Her Birth-Given Surname for Voter Registration”, 32 Maryland Law Rev. 409 (1973).

      . Forbush v. Wallace, 341 F.Supp. 217 (M.D.Ala.1971), aff'd 405 U.S. 970, 92 S.Ct. 1197, 31 L.Ed.2d 246 (1972).


text:
    Henry HAWKINS, Appellant, v. STATE of Florida, Appellee.
    No. 75-871.
    District Court of Appeal of Florida, Second District.
    Jan. 30, 1976.
    Rehearing Denied Feb. 18, 1976.
    Angelo M. Ferlita of Diecidue, Ferlita & Prieto, Tampa, for appellant.
    Robert L. Shevin, Atty. Gen., Tallahassee, and Richard G. Pippinger, Asst. Atty. Gen., Tampa, for appellee.
   GRIMES, Judge.

This case involves the question of whether psychiatric testimony directed to the ability of an important prosecution witness to tell the truth may be introduced to attack his credibility.

Appellant was charged under Fla.Stat. § 800.04 (1973) with committing a lewd and lascivious act in the presence of a female child under the age of fourteen years, without intent to commit rape. The complaining witness was Drewsella Hawkins, appellant’s daughter. She was twelve years old when the act was allegedly committed and thirteen years old at the time of the trial. The state’s case was predicated upon her testimony and an incriminating statement made by appellant while in police custody. When the state rested its case late in the afternoon, the appellant’s attorney moved for a continuance until the following morning for the purpose of introducing psychiatric testimony relating to the prosecuting witness. The motion was denied. Thereupon, appellant took the stand and denied the offense. He said he had made the incriminating statement upon the promise of the police that he would then be turned loose. The jury found the appellant guilty as charged.

Appellant raises five points on appeal. The only point which merits discussion is whether the court erred in refusing to continue the trial. After appellant’s arrest, his daughter had been examined by a psychiatrist for the Division of Family Services. It was not until noon on the day of the trial that appellant’s attorney had obtained the entry of an order by the judge exercising juvenile jurisdiction which authorized the Division of Family Services to reveal the name of the psychiatrist. According to defense counsel’s proffer at the time he moved for continuance, he had been able to reach the psychiatrist on the telephone at about 3:45 p. m. The psychiatrist expressed the opinion that Drewsella did not always tell the truth and that she had paranoid tendencies. He said these were only preliminary findings but he would be able to give a full diagnosis by the following morning when he had had an opportunity to look at the results of certain psychological tests which Drewsella had taken. The state opposed the continuance on the premise that the doctor would be unable to testify because of the psychiatrist privilege under Fla.Stat. § 90.242 (1973), and that, in any event, the proffered testimony would have no probative value. The court denied the motion for continuance on the basis that the proffered testimony would be irrelevant since it would not go to the witness’ competency to testify.

Normally, the determination of whether to grant a continuance rests within the sound discretion of the trial judge. Here, however, the continuance would have amounted to little more than adjourning the trial at the end of the day and permitting the appellant to wait until the following morning to put on his case. Appellant’s counsel could not be criticized for being dilatory because he had only been able to learn the name of the psychiatrist a few hours earlier. Consequently, the issue must turn on whether the court was correct in its conclusion that, assuming the truth of the proffer, the testimony would not have been admissible.

One of the earliest cases which involved the admissibility of psychiatric testimony bearing upon the credibility of a witness was United States v. Hiss, S.D.N.Y.1950, 88 F.Supp. 559. Since the testimony of Whittaker Chambers was so important to the case against Alger Hiss, the court permitted the introduction of psychiatric testimony in order to impeach his credibility. Other courts have followed this practice. E. G., United States v. Partin, 5th Cir. 1974, 493 F.2d 750; People v. Neely, 1964, 228 Cal.App.2d 16, 39 Cal.Rptr. 251; contra, Hopkins v. State, Tex.Cr.App.1972, 480 S.W.2d 212. Sometimes, courts are asked to require a key prosecution witness to undergo a psychiatric evaluation for the purpose of giving the defendant an opportunity to see if expert testimony is available to demonstrate that the witness’ testimony could be affected by his mental condition. 3A J. Wigmore, Evidence § 924a (Chad-bourn rev.1970). In Florida, the Fourth District Court of Appeal declined the invitation to adopt the Wigmore rule when it stated :

“. . . [W]hile we do not expressly reject the concept of the court possessing inherent power to require such an examination under the most compelling of circumstances where it is necessary to insure a just and orderly disposition of the cause, we would discourage the practice in any but the most extreme instances.” Dinkins v. State, Fla.App.4th, 1971, 244 So.2d 148.

However, the issue in this case was not whether to require the prosecuting witness to undergo a psychiatric examination; the examination had already been conducted. We believe that appropriate psychiatric testimony to the effect that Drewsella’s propensity to tell the truth was affected by her mental and emotional condition would have been relevant and admissible for the purpose of impeaching her credibility.

It may be that the psychiatric privilege would have precluded the psychiatrist from testifying concerning the results of his examination. However, the state was in no position to invoke the privilege. While the psychiatrist might have felt compelled to invoke the privilege in Drewsella’s behalf, there is nothing which would have prevented her from waiving the privilege so as to permit the psychiatrist to testify. This was more than a remote possibility because Drewsella had already manifested such a reluctance to testify in the first place that the state had found it necessary to bring her before the judge for the purpose of admonishing her to give her testimony.

Thus, we hold that the court erred in failing to give the appellant the reasonable opportunity to produce the psychiatrist at the trial the following morning. We cannot say with any certainty that the jury would have reached the same conclusion had the psychiatric testimony been presented in line with the proffer.

Reversed and remanded for new trial.

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


author: SMITH, Judge.

text:
    William E. RICHARDSON, Petitioner, v. FLORIDA STATE BOARD OF DENTISTRY, Respondent.
    No. Z-205.
    District Court of Appeal of Florida, First District.
    Feb. 5, 1976.

      W. N. Avera, Chandler, O’Neal, Avera, Gray, Lang & Stripling, Gainesville, for petitioner.
    L. Haldane Taylor, Taylor & Brecher, Jacksonville, for respondent.
   SMITH, Judge.

Dr. Richardson, a DeLand dentist, seeks review of an order of the State Board of Dental Examiners suspending him from the practice of dentistry for six months because of the manner in which he obtained and used a narcotic drug in his practice. The authority of the Board is derived from § 466.25, F.S.1973. The matter was heard, as provided in the Administrative Procedure Act, ch. 120, F.S.1973 (1974 Supp.), by a hearing officer of the Division of Administrative Hearings, Department of Administration. The Board of Dental Examiners, acting on a recommended order of the hearing officer [§ 120.57(1)10], found that Dr. Richardson had committed felonies in the third degree proscribed by ch. 893, F.S.1973, and thereby had been guilty of “conduct of a nature to bring discredit upon the dental profession.” A dental license may be revoked or suspended under § 466.24(3)(a), F.S.1973, if the holder

“(3) Has been guilty of:
(a) Misconduct either in his business or in his personal affairs which would bring discredit upon the dental profession; . . . ”

Dr. Richardson asserts that the quoted statute is unconstitutionally vague in its description of proscribed “misconduct” and, consequently, that a suspension order cannot be predicated on it. The parties have not referred to and we have not found an appellate judicial decision in Florida or elsewhere evaluating a statute precisely like this one. Throughout the country, however, there are similar professional licensing statutes. Other Florida statutes proscribe “conduct reflecting unfavorably” on the veterinary profession and “conduct unbecoming” a physical therapist. Secs. 474.31(13), 486.091(7), F.S.1973.

We agree with the numerous decisions of other courts upholding, against substantive due process attacks, professional licensing standards couched in similarly general terms. “Misconduct” justifying suspension or revocation of a professional license includes acts done in persistent disregard of the law, those which are malum in se [Davis v. State ex. rel. Florida State Board of Dental Exam., 181 So.2d 559 (Fla.App.1st, 1966), cert. den., 188 So.2d 818 (Fla.1966); Russ v. Pepper, 190 So.2d 783 (Fla.App.3d, 1966)], and those which offend generally accepted standards of conduct within the profession, thereby jeopardizing the interests of the profession and the public it serves. Ladrey v. Comm’n on Licensure to Practice, 104 U.S.App.D.C. 239, 261 F.2d 68 (1958), cert. den. 358 U.S. 920, 79 S.Ct. 288, 3 L.Ed.2d 239 (1959) (“misconduct”); Arizona State Board of Mad. Exam. v. Clark, 97 Ariz. 205, 398 P.2d 908 (1965) (“unprofessional conduct”) ; In re Mintz, 233 Or. 441, 378 P.2d 945 (1963) (“unprofessional or dishonorable conduct”); Bell v. Board of Re gents, etc., 295 N.Y. 101, 65 N.E.2d 184 (1946), reh. den., 295 N.Y. 821, 66 N.E.2d 590 (1946) (“unprofessional or immoral conduct”). Contra, Matthews v. Murphy, 23 K.L.R. 750, 63 S.W. 785 (Ky.1901).

Our difficulty in dealing with the Board’s suspension of Dr. Richardson results from uncertainty over the standard of misconduct invoked by the Board. The Board does not charge that Dr. Richardson violated professional ethical standards and there is no proof of a generally accepted ethical standard by which his conduct may be condemned. Nor does the Board contend that Dr. Richardson’s conduct was self-evidently evil. While the formal accusation on which the proceedings rest did not charge that Dr. Richardson violated any law, the order proposed by the hearing officer and adopted by the Board found that Dr. Richardson committed felonies in the third degree in violation of § 893.-13(3) (a), F.S.1973, providing:

“(3) (a) It is unlawful for any person:
“1. To acquire or obtain, or attempt to acquire or obtain, possession of a controlled substance by misrepresentation, fraud, forgery, deception, or subterfuge.”

Although the order of suspension rather clearly predicates its critical findings on Dr. Richardson’s presumed violation of § 893.13(3) (a), the Board’s counsel asks us to disregard as surplusage all references in the order to § 893.13 and to supposed felonies. Putting aside momentarily this confusion over the standard by which Dr. Richardson’s conduct is to be judged, we turn to the accusations, the evidence and the findings.

Counts two through six of the accusation charge that, on five occasions, Dr. Richardson wrote a prescription for morphine sulfate in the name and for the use of one of his patients but, after obtaining the drug from a local pharmacy, did not dispense the drug to the named patient. Count seven charges that, on ten documented occasions, Dr. Richardson obtained morphine sulfate from a pharmacy by writing a prescription in the name of Karen Lambdin, his chairside assistant, “for the alleged use of Karen Lambdin,” but that Dr. Richardson did not dispense the drug to Karen Lambdin. The drug, it was charged, was not necessary to the proper practice of dentistry. The Board found, on recommendation of the hearing officer:

“(1) During the period between July, 1973, and April 2, 1974, William E. Richardson issued numerous prescriptions for 20 cc vials of morphine sulfate in the names of persons for whom the medication was not intended nor used.
“(2) From January 30, 1974, until April 2, 1974, eleven such prescriptions issued were picked up by Karen Lambdin and paid for by Richardson’s office.
“(3) Those prescriptions in paragraph (2) above issued in the names of John Kaeserman, Nancy Siler, Flora Munk, Mary Byrne, and Karen Lambdin were not used in the course of dental treatment of any of those named.”

Morphine sulfate is a narcotic drug subject to the controls imposed by ch. 893, F.S.1973, and 21 U.S.C. §§ 801 et seq. Its power for good and ill is formidable. Injecting just one-half of one cc of it into mouth tissues, Dr. Richardson vowed, will relax and buoy the spirits of an apprehensive dental patient, thus making a complex procedure easier for the dentist and less unpleasant for the patient. Until this controversy arose, Dr. Richardson preferred this drug over all others for that purpose. Although the record makes clear that Dr. Richardson used morphine sulfate when most other dentists prefer a less potent or nonnarcotic drug, or none at all, there is in this record no hint of criticism that Dr. Richardson’s use of the drug was unnecessary or improper in the practice of dentistry.

Practitioners ordinarily obtain controlled substances such as morphine sulfate for office use by ordering it from licensed distributors which are required by law to distribute such substances to practitioners, pharmacists and others only pursuant to a written order on a form approved by State and Federal governments. Sec. 893.06(1), F.S.1973 ; 21 U.S.C. § 828. Dr. Richardson thought it inconvenient to supply his needs for morphine sulfate by submitting government forms to distributors because, he said, it was practical in that way only to order larger quantities of the drug than he desired to keep in the office. Dr. Richardson felt that keeping any amount of morphine sulfate in the office beyond the end of the day encouraged repeated break-ins.

So Dr. Richardson became accustomed to obtaining small quantities of morphine sulfate — the smallest available vial containing 20 cc’s and costing approximately $1.20— by sending his assistant to a pharmacy with a prescription form on which Dr. Richardson had written “for office use only” instead of a patient’s name. Eventually, however, the pharmacists advised Dr. Richardson that a patient’s name was required to be written on the face of the prescription. Federal law excepts a dispensing pharmacist from the requirements applicable to a distributor of controlled substances only when the pharmacist dispenses, on the prescription of a practitioner, to “an ultimate user” of the drug. 21 U.S.C. §§ 802(10), 828. And State law requires that prescriptions bear the “full name and address of the person for whom . the controlled substance is dispensed.” § 893.04(1) (c) 1, F.S.1973. Dr. Richardson obliged by writing on the prescription form the name of John Kaeserman or Nancy Siler or some other patient having an appointment on the day of the purchase, to whom Dr. Richardson expected to administer a small amount of the drug in the manner and for the purpose already described.

Having thus administered one-half of one cc of the drug to the patient named in the prescription and on the label, Dr. Richardson would use other small doses during the day on any other appropriate patients and, at the end of the day, pour what remained in the vial down the drain. In the case of John Kaeserman, a patient for whom morphine sulfate was so obtained on the day of his appointment, Dr. Richardson decided that the patient did not need the drug. So he did not inject it needlessly, nor did he give the patient the full vial to carry home. He used as many small doses from the vial as other patients required during the day, then destroyed the balance.

On ten occasions shown by the evidence, in support of the accusation in count seven, Dr. Richardson wrote prescriptions for morphine sulfate in the name of Karen Lambdin, his chairside assistant, and dispatched her to a pharmacy to pick up the drug. His purpose was not to administer the drug to Ms. Lambdin, of course, but rather to use it on appropriate patients expected that day. Mr. West, the only pharmacist whose testimony was adduced by the Board and who filled seven of the ten “Lambdin” prescriptions and three of the others, knew Karen Lambdin as Dr. Richardson’s assistant from her visits to the pharmacy and from his visits to the office of Dr. Richardson, whose patient he was. There was no evidence whatsoever that Mr. West or any other pharmacist who filled a “Lambdin” prescription was misled by the manner of purchase to believe that Dr. Richardson intended to administer the drug in any quantities to his chairside assistant. Three of those prescription forms stated on their face “PRN [as needed] m office” or “PRN office use.” Others stated “PRN by Dr.” and “PRN by Drs. orders.” Pharmacist West thought it was “unusual” for Dr. Richardson to be ordering the drug by means of prescriptions rather than on a “regular narcotic form,” and so asked Ms. Lambdin, on one occasion, what the drug was being used for.' She replied truthfully.

Our responsibility under the Administrative Procedure Act, ch. 120, F.S., is to set aside agency action which “is not supported by competent substantial evidence in the record.” Sec. 120.68(10), F. S.1973 (1974 Supp.). We have scoured the record for evidence supporting the Board’s finding, on counts two through six, that Dr. Richardson issued prescriptions for “morphine sulfate in the names of persons' for whom the medication was not intended nor used.” There is no evidence that Dr. Richardson issued prescriptions in the names of Mary Byrne, John Kaeserman, Helen McKiver, Flora Monk and Nancy Siler intending not to administer the drug to those patients. With the sole exception of John Kaeserman (count three), there is no evidence in the record that Dr. Richardson did not administer the drug to the named patients. As to that count, it is incomprehensible that the Board of Dentistry would consider it offensive to the standards of the profession that a dentist in good faith might order a drug for a patient but not administer it on finding the patient did not require it. The Board’s findings and conclusions in respect to counts two through six are without support in the record and they will be set aside.

The Board’s findings of fact in support of count seven, pertaining to the “Lambdin” prescriptions, have greater support in the record. Dr. Richardson was aware that a prescription for a narcotic or any other drug is an order to the pharmacist to dispense it directly to the ultimate user or to one in his household. We would not find on this record that Dr. Richardson violated the law by writing prescriptions for patients to whom he intended to administer the drug and then sending his assistant to obtain the drug for the patient; but, with respect to the “Lambdin” prescriptions, he clearly knew that he was circumventing proper procedures for obtaining morphine sulfate.

We revert now to the request of the Board’s counsel that we disregard the Board’s finding that Dr. Richardson committed a felony by obtaining possession of morphine sulfate by “misrepresentation, fraud, forgery, deception or subterfuge,” in violation of § 893.13(3) (a), F.S.1973. There is no evidence justifying such a finding, which will therefore be set aside.

Taken as a whole, however, the evidence and the findings of the Board show that Dr. Richardson knew of the lawful procedures for obtaining and using a highly controlled drug, found himself inconvenienced by those procedures and deliberately and persistently circumvented them. As a result, records required by law to be made concerning drug acquisition and use were not made and kept by Dr. Richardson.

Dr. Richardson evidently deservedly enjoys a good reputation for patient care. He was motivated in these circumstances only to serve his patients. Nevertheless, his conduct offends State and Federal law, encourages carelessness if not permissiveness in the observance of drug control and, ultimately, reflects discredit on a profession which is and must be trusted to adhere scrupulously to drug control laws. There was no moral turpitude in his misconduct, however, and no intent to conceal.

The harsh penalty imposed by the Board is not justified in this case. The Board’s suspension of Dr. Richardson for six months was influenced by erroneous findings of fact, an erroneous conclusion of law and an unwarranted comparison of this case wtih Du Vall v. Board of Medical Examiners, 49 Ariz. 329, 66 P.2d 1026 (1937), and Seitz v. Ohio State Medical Board, 24 Ohio App. 154, 157 N.E. 304 (1926), in which practitioners were found guilty of grossly immoral conduct in selling narcotics to addicts for purposes other than cure.

We are satisfied that the Board of Dental Examiners, on review of this matter in light of our opinion limiting and defining Dr. Richardson’s misconduct, will competently assess his attitude toward his lawful responsibilities and, within appropriate limits, impose discipline appropriate to the misconduct as we have found it. The matter will be remanded to the Board of Dental Examiners for imposition of discipline not exceeding a public reprimand and license suspension for thirty days.

The petition for certiorari is granted, the order reviewed is set aside and the cause remanded.

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

      . “It is concluded that, as a matter of law, violations of those provisions of Chapter 893, Florida Statutes, designated as felonies of the third degree, constitute conduct of a nature to bring discredit upon the dental profession. It is therefore hereby ORDERED AND ADJUDGED that William E. Richardson, D.D. S.be found guilty of Counts II through VII. It is further ORDERED AND ADJUDGED that William E. Richardson, D.D.S., be suspended from the practice of dentistry for a period of six (6) months..."

      . We thereby dispose of the Board charge in each count, made most explicit in count 7, that the administration of morphine sulfate is “not necessary to the proper practice of dentistry” and, by reverse implication, a violation of § 466.22, F.S.1973, which permits dentists to prescribe drugs “as may be necessary to the proper practice of dentistry.”


text:
    Michael Francis SMITH, Appellant, v. STATE of Florida, Appellee.
    No. 75-405.
    District Court of Appeal of Florida, Second District.
    Jan. 30, 1976.
    Rehearing Denied Feb. 27, 1976.

      James A. Gardner, Public Defender, Sarasota, and Steven H. Denman, Asst. Public Defender, Bradenton, for appellant.
    Robert L. Shevin, Atty. Gen., Tallahassee, and Richard G. Pippinger, Asst. Atty. Gen., Tampa, for appellee.
   PER CURIAM.

Appellant, a minor, was charged with breaking and entering with intent to commit a misdemeanor, to wit: petit larceny. He pled guilty and was later sentenced to three years imprisonment.

Since appellant does not suggest that he was prejudiced by the trial court’s failure to establish a factual basis for the charge, that error is insufficient to require either vacating the plea or remanding for further proceedings. Williams v. State, Fla.1975, 316 So.2d 267; State v. Lyles, Fla.1975, 316 So.2d 277. However, we find the plea colloquy wholly insufficient to establish either the voluntariness of the plea or the appellant’s understanding of its consequences. Boykin v. Alabama, 1969, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274; RCrP 3.170(j). We think that under Williams v. State, supra, the appropriate remedy is to remand for a determination of whether the plea was voluntarily and intelligently made. See also Williamson v. State, Fla.App.2d 1973, 273 So.2d 784.

Reversed and remanded for further proceedings.

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


text:
    Barbara L. WILLIAMS, Petitioner, v. FLORIDA DEPARTMENT OF COMMERCE, INDUSTRIAL RELATIONS COMMISSION, and Western Electric Company, Respondents.
    No. 75-1486.
    District Court of Appeal of Florida, Third District.
    Feb. 3, 1976.

      Linsey Moore, Legal Services of Greater Miami, for petitioner.
    Kenneth H. Hart, Jr., Tallahassee, and James R. Parks, Miami, for respondents.
    Before PEARSON and NATHAN, JJ., and CHARLES CARROLL (Ret.), Associate Judge.
   PER CURIAM.

By petition for certiorari we have for review a decision of the Industrial Relations Commission, reversing a decision of an Appeals Referee which had upheld a determination of a Claims Examiner.

The petitioner, Barbara Williams, employed by the respondent Western Electric Company, suffered an arm injury. The arm was treated and placed in a cast, and she continued working for a period. When the injury failed to heal, she was hospitalized for surgery, which was not performed as scheduled because of a certain condition of blood pressure instability. She was treated by her personal physician for the latter condition, and by an orthopedic surgeon who re-casted the arm and advised surgery when feasible, for relief of her pain. On re-examination by her physician he concluded that her condition still was such that surgery was not presently feasible, and that she should not return to work. She and her physician so informed her employer. The employer made several requests, during the times above mentioned, for the petitioner to submit to examination by the employer’s doctor. She did not comply therewith. Because of her failure to do so, the employer notified the employee that she was considered to have resigned.

In upholding the petitioner’s claim for unemployment compensation the Appeals Referee held:

“The record and evidence of the instant case clearly show that the claimant did not leave the employment of the employer-appellant of her own accord, but was discharged by the employer, effective May 31, 1974. It has been further shown that this discharge occurred at a time when the claimant was physically unable to work. Although the employer may have been convinced that the claimant had remained off of the job without a justifiable reason, her doctor has executed a certificate of examining physician, showing that she did not become able to work until September, 1974. The claimant’s failure to report for duty at a time when she was physically incapable of doing so, did not constitute a material breach of her duties and obligations arising out of the contract of hire. Accordingly, if should be held that the claimant was discharged by the employer-appellant, but not for misconduct connected with her work.”

In reversing, the Industrial Relations Commission held the petitioner’s claim for benefits should he rejected because the petitioner had refused to comply with the request of the employer to submit to examination by its doctor, and stated: “Claimant may have been physically unable to work but she was not physically unable to see the employer’s doctor.”

The commission concluded that failure to submit to examination by the employer’s doctor constituted misconduct of the employee connected with her work, justifying her discharge.

We cannot agree. The petitioner was entitled to rely on the advice of her physician as to whether her condition was such as to permit her to return to work. There was no showing or indication in the record that the opinion or decision of her physician that she should not return to work was not bona fide, or validly made. We have been shown no law requiring the petitioner to submit to examination by her employer’s doctor in such circumstances, and that failure to do so would constitute misconduct depriving her of benefits under the statute. It was error for the commission to hold that her failure to submit to examination by the employer’s doctor amounted to misconduct connected with her work and furnished grounds for discharge.

Disqualification for benefits can result from misconduct connected with the work (§ 443.06 Fla.Stat., F.S.A.), but where doubts in that regard are nicely balanced, they are to be resolved in favor of the claimant. See Spaulding v. Florida Industrial Relations Commission, Fla.App. 1963, 154 So.2d 334; Woskoff v. Desta Enterprises, Inc., Fla.App. 1966, 187 So. 2d 101.

Certiorari is granted, the decision of the Industrial Relations Commission is quashed, and the decision of the Appeals Referee is reinstated.


author: HENDRY, Judge.

text:
    In re ESTATE of Julius ROSENSTEIN. Morton Allen SMITH, Appellant, v. Nelan SWEET, as Executor for the Estate of Julius Rosenstein, Appellee.
    Nos. 74-1665, 75-1136.
    District Court of Appeal of Florida, Third District.
    Feb. 3, 1976.

      Pettigrew & Bailey and Thomas A Grib-bin, Miami, for appellant.
    Burnett Roth, Miami Beach, for appel-lee.
    Before BARKDULL, C. J., and PEARSON and HENDRY, JJ.
   HENDRY, Judge.

Appellant, petitioner in .probate and plaintiff in an action in contract, brings these consolidated appeals from orders of the circuit court, probate division, striking his answer and petition in probate and dismissing with prejudice his second amended complaint filed in the general jurisdiction division and transferred to the probate division.

On August IS, 1973, Julius Rosenstein died leaving a sizeable estate. Appellant, as one of many takers, was bequeathed $1,000 by Rosenstein’s Last Will and Testament.

Subsequently, a petition for a construction of the Will was filed by the other takers. In response to this petition, appellant filed an answer and a petition relating to other monies and property he sought from the estate. Answers to appellant’s petition were filed by all interested parties and ap-pellee, Nelan Sweet, as executor for the estate of Julius Rosenstein, moved to strike appellant’s petition.

Notice was given and a hearing was set on appellee’s motion to strike. At this hearing the circuit court denied appellee’s motion and ruled against appellant on the merits. Subsequently, the court announced it was withdrawing its ruling against appellant. Thereafter, appellee re-noticed the motion to strike for October 18, 1974. No argument was scheduled or noticed that addressed itself to the merits of appellant’s claim against the estate. Due to an emergency, counsel for appellant was unable to attend this hearing and was unsuccessful in attempting to have it rescheduled.

On November 4, 1974, the court sua sponte entered an order striking appellant’s petition on the ground that he had no standing as an interested party in the probate proceeding. Appellant’s first appeal is from this order.

On November 14, 1974, appellant filed a second amended complaint for breach of contract against appellee. This complaint, by an order of the circuit court, general jurisdiction division, dated December 13, 1974, was transferred to the probate division of the circuit court and assigned to the judge presiding over the Rosenstein estate proceedings. Subsequently, upon ap-pellee’s motion to dismiss, the court entered an order, dated June 4, 1975, dismissing with prejudice appellant’s second amended complaint on the ground that it failed to state a cause of action against ap-pellee upon which relief could be granted. From this order, appellant brings his second appeal.

Appellant first contends that, in regard to the order dated November 4, 1974, he never received any notice advising him that a hearing on the merits of his petition was to be held and in fact no such hearing was held. Therefore, appellant asserts that the November 4, 1974 order adjudicating the merits of his petition deprived him of his constitutional right to due process of law. Secondly, appellant contends that, in regard to the order dated June 4, 1975, by virtue of an antenuptial agreement and a contract to make a will, as a third party beneficiary he has valid claims against the assets of Rosenstein’s estate.

Appellee contends that the circuit court properly struck appellant’s petition for an interest in Rosenstein’s estate and that it properly dismissed appellant’s second amepded complaint.

As to appellant’s first point on appeal, we have carefully reviewed the record and conclude that he was denied a meaningful hearing prior to the time that the circuit court entered its order dated November 4, 1974. This denial deprived appellant of his constitutional right to due process of law. See Fiehe v. R. E. Householder Co., 1929, 98 Fla. 627, 125 So. 2; and Pelle v. Diners Club, Fla.App1975, 287 So.2d 737.

In regard to appellant’s second point on appeal, we hold that his second amended complaint did set forth a valid cause of action which the circuit court should have entertained. Antenuptial agreements are contractual in nature and should be construed in the same manner as other types of contracts. See Underwood v. Underwood, Fla.1963, 64 So.2d 281; and McMullen v. McMullen, Fla.App.1966, 185 So.2d 191. Such agreements are valid in Florida. See Posner v. Posner, Fla.1972, 257 So.2d 530. Also, in Florida a person may make a valid contract to leave his property at his death by will; see Donner v. Donner, Fla.App.1974, 302 So. 2d 452, and Ugent v. Boehmke, Fla.App.1960, 123 So.2d 387, and a donee beneficiary has the right to compel a promisor to fulfill such a contractual obligation. See Cherry Lake, Inc., v. Kearce, 1946, 157 Fla. 484, 26 So.2d 434; and Flinkote Co. v. Brewer Co. of Fla., Fla.App.1969, 221 So.2d 784. This determination, i. e., appellant did set forth a valid cause of action in his second amended complaint, should not be construed as passing on its merits.

We have considered the record, all points in the briefs and arguments of counsel in the light of the controlling principles of law, and have concluded that reversible error has been demonstrated. Therefore, for the reasons stated and upon the authorities cited, the orders appealed are reversed and remanded for further proceedings not inconsistent with this opinion.

Reversed and remanded.


author: NATHAN, Judge.

text:
    Brainard STONE and Beulah Stone, Petitioners, v. TRAVELERS INSURANCE COMPANY, Respondent.
    No. 75-1108.
    District Court of Appeal of Florida, Third District.
    Feb. 3, 1976.

      Wolfson, Diamond & Logan, Joe N. Un-ger, Miami Beach, for petitioners.
    High, Stack, Davis & Lazenby and Alan R. Dakan, Adams, George, Wood, Lee & Schulte, Miami, for respondent.
    Before PEARSON, HENDRY and NATHAN, JJ.
   NATHAN, Judge.

This is a petition for writ of certiorari filed by the plaintiffs, Brainard Stone and Beulah Stone, for review of an order sustaining the objections of the defendant, Travelers Insurance Company, to a request for production in an action for bad faith in failing to settle a personal injury action within policy limits. As a result of failure to settle, the Stones obtained a judgment for damages for personal injuries in an amount exceeding the policy limits.

In this action for bad faith against Travelers, the plaintiffs requested production of Travelers’ complete file regarding the personal injury case. Objections were made, and the court ordered Travelers to produce all materials which it did not deem work product, with the remainder of the file to be presented to the court for an in camera determination as to discoverability. Subsequently, it was then ordered that the materials inspected by the court should not be produced. The plaintiffs moved for a list identifying all of the materials which had been excluded from production. A list was produced showing documents dated subsequent to final judgment in the original suit and prior to institution of this suit for bad faith. Plaintiffs then requested production of each document on the list. Travelers objected, the objections were sustained, and this petition for certiorari ensued.

Travelers contends that the documents are work product and thus privileged, but concedes that the matters are not subject to any other privilege. See Boston Old Colony Insurance Company v. Gutierrez, Fla.App., 325 So.2d 416, opinion filed January 20, 1976. The plaintiffs contend that the materials cannot be work product because work product is defined as matters in preparation for trial whereas the documents sought to be discovered are mere business records and not in preparation for trial of the bad faith suit.

It is clear that in an action for bad faith against an insurance company for failure to settle a claim within policy limits, all materials, including documents, memoranda and letters, contained in the insurance company’s file, up to and including the date of judgment in the original litigation, should be produced. We reach this holding because of the very nature of a bad faith action and the posture of the parties involved.

In defending personal injury litigation, an insurance company participates not only on behalf of itself, but also on behalf of its insured. Since the plaintiff-judgment creditor stands in the same posture as the insured, entitlement to all materials and documents up to and including the date of the judgment, is extended to him.

Memoranda, letters and all other documentation and materials in the file which were prepared between the time of judgment in the original action and institution of the bad faith suit, are subject to production upon a showing of good cause, or pursuant to an order of the court following an in camera inspection, if such inspection is ordered.

In the instant case, the request for production alleges good cause. However, following an in camera inspection by the trial court, it was determined that the documents between the date of judgment and commencement of the bad faith case, were not material or relevant. There being nothing in the record to show that they are material or relevant, we find that the trial court did not err in excluding them from production.

In cases such as this, where there has been an in camera inspection, a proper procedure to follow would be to move the trial court for an order transmitting, under seal to the appellate court, the documents which were inspected in camera, for appellate review.

Certiorari denied.

PEARSON, J., concurs in the decision to deny certiorari only.

      . Boston Old Colony Insurance Company v. Gutierrez, supra.

      . Rules 1.280 and 1.350, ROP.


author: CROSS, Judge.

text:
    Robert A. GIAMMARESI, Appellant, v. Greer PARKER et al., Appellees. Greer PARKER et al., Appellants, v. John HOMAN, III, et al., Appellees.
    Nos. 75-217, 75-678.
    District Court of Appeal of Florida, Fourth District.
    Feb. 6, 1976.

      James P. O’Flarity, Fort Lauderdale, for Giammaresi-Argus.
    Christopher B. Knox, of Burdick and Donahoe, Fort Lauderdale, for Parker-Ho-man-Homark. ■
   CROSS, Judge.

Plaintiffs, Greer Parker, Minnie Ann Homan and Homark Enterprises, instituted suit against defendants, John Homan III, Judy Homan Glecer, Robert A. Giammare-si, Sally Giammaresi and Argus Development Corporation, alleging, inter alia, in their second amended complaint that Greer Parker, Minnie Ann Homan, John Homan III, Judy Homan Glecer, and the Giamma-resis orally agreed to enter into a joint venture for the purpose of purchasing and developing certain real property in Bro-ward County, Florida; in accordance with the terms of the abovementioned agreement, Greer Parker, Minnie Ann Homan and John Homan III advanced sums of money through Homark Enterprises to the Giammaresis; the Giammaresis purchased and developed three parcels of property utilizing the monies advanced to them by Greer Parker, Minnie Ann Homan and John Homan III; the Giammaresis purchased the parcels of property and took title thereto in the name of Argus Development Corporation; contrary to the terms of the agreement, the Giammaresis refused to convey title to the parcels of property to Homark; contrary to the terms of the agreement, the Giammaresis sold one of the parcels of land and refused to account to the plaintiffs for the monies received from this sale.

The permanent relief sought in this action by the plaintiffs is money damages, imposition of trusts on the parcels of property yet titled in the name of Argus Development Corporation, and an accounting of monies and property accruing to the Giam-maresis and to Argus as a result of the monies advanced to them by Greer Parker, Minnie Ann Homan and John Homan III.

Thereafter the Giammaresis and Argus moved to dismiss plaintiffs’ second amended complaint. Robert A. Giammaresi moved for an order discharging lis pendens filed by the plaintiffs against the parcels of property yet titled in the name of Argus Development Corporation.

While the abovementioned motions were pending, plaintiffs noticed for deposition one Nelson B. Olmstead, the Vice President in charge of operations at the Barnett Bank of Fort Lauderdale, Florida. A subpoena duces tecum was also served upon Olmstead requiring him to produce financial records of Argus Development Corporation. Giammaresi and Argus then sought by motion a protective order restraining production of Argus’ financial records on the grounds that plaintiffs were prematurely seeking discovery as to items of accounting before it was established that the plaintiffs were entitled to an accounting. Said motion was denied by order of the trial court. It is from this order that Giammaresi takes an interlocutory appeal, numbered 75-217.

Subsequently thereafter, the trial court entered an order dismissing plaintiffs’ second amended complaint, granting, however, leave to file a third amended complaint, and discharged the lis pendens filed by the plaintiffs. Plaintiffs take an interlocutory appeal from this order, numbered 75-678.

We have consolidated the interlocutory appeals for the purposes of disposition.

Turning now to consider whether the trial court erred in denying the motion for a protective order filed by the Giammaresis and Argus, we note in Charles Sales Corp. v. Rovenger, 88 So.2d 551 (Fla.1956), the Florida Supreme Court concluded that discovery as to an accounting must be deferred until the preliminary issue of the right to an accounting is settled. This case has been followed by David v. Tansill, 297 So.2d 84 (Fla.App.1974); Wood v. Brackett, 266 So.2d 398 (Fla.App.1972); Stanton Investment Company of Missouri v. Simon, 255 So.2d 557 (Fla.App.1971); Boyd v. Walker, 251 So.2d 332 (Fla.App.1971); A—1 Truck Rentals, Inc. v. Vilberg, 222 So.2d 442 (Fla.App.1969); Armstrong v. Piatt, 201 So.2d 830 (Fla.App.1967), and cases cited therein.

In the instant case, we conclude that the financial records of Argus Development Company could only have relevance as to the amount of any sums that might be due the plaintiffs in an accounting and not the issue of the plaintiffs’ right to an accounting. Therefore, plaintiffs are not entitled to discovery of these records until the issue of the right to an accounting has been determined favorably to plaintiffs.

As to whether the trial court erred in dismissing plaintiffs’ second amended complaint and discharging the lis pendens filed by plaintiffs, we determine those issues to be without merit. Leave was granted plaintiffs to file a third amended complaint and at oral argument we have been informed that plaintiffs have since filed a third amended complaint.

Accordingly, the trial court’s order denying the motion for a protective order is reversed and the cause is remanded for further proceedings consistent with the views herein expressed in interlocutory appeal No. 75-217. The trial court’s order dismissing plaintiffs’ second amended complaint and discharging lis pendens filed by the plaintiffs is affirmed in interlocutory appeal No. 75-678.

WALDEN, C. J., and MAGER, J., concur.


text:
    The STATE of Florida, Petitioner, v. Humberto RODRIGUEZ, Respondent.
    No. 75-1336.
    District Court of Appeal of Florida, Third District.
    Feb. 3, 1976.

      Richard E. Gerstein, State’s Atty., and Charles I. Poole, Asst. State’s Atty., for petitioner.
    Phillip A. Hubbart, Public Defender, and Elliot H. Scherker, Asst. Public Defender, for respondent.
    Before BARKDULL, C. J., and HAV-ERFIELD and NATHAN, JJ.
   PER CURIAM.

By this common law petition for certio-rari, the State calls on for review an order by the trial judge mitigating a sentence more than sixty days after he had imposed same and subsequent to a change in the term of the court.

We quash the order here under review. After the expiration of time for filing a motion to mitigate [see: Rule 3.-800(b) RCrP], the court lost jurisdiction to mitigate a sentence. State v. Evans, Fla.App.1969, 225 So.2d 548; Ware v. State, Fla.App.1970, 231 So.2d 872; Sayer v. State, Fla.App.1972, 267 So.2d 42; State v. Brown, Fla.App.1975, 308 So.2d 655. It is also apparent that the term of court, in which the original sentence had been entered, had expired and the court was in a new term; therefore, it lacked the power to mitigate the sentence. Compare Troupe v. Rowe, Fla.1973, 283 So.2d 857; Jones v. State, Fla.App.1974, 297 So.2d 93.

Therefore, the order under review be and the same is hereby quashed, and the matter is returned to the trial court with directions to provide that the respondent comply with the original sentence as entered.


text:
    The STATE of Florida, Petitioner, v. Ovillie RAGSDALE, also known as Quillie Ragsdale, Respondent.
    No. 75-1347.
    District Court of Appeal of Florida, Third District.
    Feb. 3, 1976.
    Richard E. Gerstein, State’s Atty., and Harold Ungerleider, Asst. State’s Atty., for petitioner.
    Weissenborn, Burr & Hyman and Gary Carman, Miami, for respondent.
    Before PEARSON, HAVERFIELD and NATHAN, JJ.
   PER CURIAM.

We are presented with a petition for certiorari in which the State seeks the review of a judgment entered by a circuit judge in the exercise of the appellate jurisdiction of the circuit court. The respondent was found guilty in the county court of driving while her license was suspended. She brought a timely appeal to the circuit court from the judgment of the county court. That judgment, which found the appellant guilty as charged, was affirmed by the circuit court; however, in its order of affirmance, the circuit judge went further to state:

* * * 4= * *
“ORDERED that the sentence to pay a fine of $200.00 is affirmed and the sentence to serve 30 days in jail is vacated with the Appellant to attend forthwith D.U.I. Countermeasures of Dade County, Inc. Program in lieu thereof, (see Counter-Measures Procedure hereto attached) and report promptly to the Trial Court upon completion of said program.”
* * * * * *

It is our view that the commendable effort of the circuit judge to reach what he considered a more effective sentence in the case is beyond the scope of the appellate powers of the circuit court. See State v. Atwell, Fla.App.1957, 97 So.2d 125; and Wilkinson v. State, Fla.App.1975, 322 So.2d 620, and authorities cited therein. We, therefore, hold that the quoted section of the trial judge’s order of affirmance constituted a departure from the essential requirements of law.

The portion of the order changing the sentence of the trial court is quashed and the circuit judge is directed to enter an amended order of affirmance eliminating such paragraph.

It is so ordered.


text:
    David WORLD, Appellant, v. The STATE of Florida, Appellee.
    No. 75-1360.
    District Court of Appeal of Florida, Third District.
    Feb. 3, 1976.
    David World, in pro. per.
    Robert L. Shevin, Atty. Gen., for appel-lee.
    Before BARKDULL, C. J., and PEARSON and NATHAN, JJ.
   PER CURIAM.

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


text:
    Jose Luis PEREZ, Appellant, v. The STATE of Florida, Appellee.
    No. 75-1531.
    District Court of Appeal of Florida, Third District.
    Feb. 3, 1976.
    Jose Luis Perez, in pro. per.
    Robert L. Shevin, Atty. Gen., for appel-lee.
    Before HENDRY, HAVERFIELD and NATHAN, JJ.
   PER CURIAM.

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


text:
    Roseann and Eddie MARTIN, Appellants, v. The STATE of Florida, Appellee.
    No. 75-1566.
    District Court of Appeal of Florida, Third District.
    Feb. 3, 1976.
    Roseann and Eddie Martin, in pro. per.
    Robert L. Shevin, Atty. Gen., for appel-lee.
    Before HENDRY, HAVERFIELD and NATHAN, JJ.
   PER CURIAM.

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


text:
    CROSS-AERO CORPORATION et al., Appellants, v. CROSS-AERO SERVICE CORPORATION et al., Appellees.
    No. 74-1775.
    District Court of Appeal of Florida, Third District.
    Feb. 3, 1976.
    Miller & Russell, Richard M. Gale, Miami, for appellants.
    Michael M. Tobin and Stephen K. Katz, Coral Gables, for appellees.
    Before PEARSON, HENDRY and NATHAN, JJ.
   NATHAN, Judge.

Cross-Aero Corporation and Frank J. Crawford, plaintiffs in the trial court, appeal from a final order compelling settlement in an action for damages against defendants Cross-Aero Service Corporation and Dean Franklin, appellees- herein, for alleged breach of interim agreements, interference with government contracts, and slander of credit and good will, among other charges. The order required the plaintiffs to carry out the terms of an alleged settlement agreement with the defendants.

The pertinent facts are that on the day before the scheduled final hearing of this cause, counsel for the defendants, in the presence of the trial judge, contacted counsel for the plaintiff by telephone in order to determine whether a settlement could be reached. When the conversation was concluded, defense counsel announced that the case was settled. At the time of the telephone conversation, defense counsel had already drafted an unexecuted settlement agreement.

Neither of the attorneys appeared for trial on the following day. Some IS or 20 days following the trial date, plaintiffs’ counsel advised the defendants that the settlement was off because certain equipment which was to be turned over to the plaintiffs was destroyed or lost, and the valuation of other items was still in dispute. The defendants filed a motion to compel settlement. At the hearing, the trial judge heard only the unsworn statements of counsel as to whether a settlement was reached. Plaintiffs’ counsel admitted that the parties were close to settlement, but stated that he did not have his clients’ authority to settle, and further that settlement was impossible because of the defendants’ inability to comply with the terms of the agreement. The trial court entered an order compelling settlement, but wisely retained jurisdiction to decide damages that might be sustained by either party to the settlement by way of the other’s non-compliance therewith.

In this appeal, the plaintiffs contend that an attorney has no authority to settle a case without the express authority of his client except in an emergency situation. The defendants agree with this proposition of law, but argue that since neither the plaintiffs nor the defendants, nor either counsel, appeared on the following day for the trial, and since the plaintiffs did not renege on the settlement agreement until some 20 days after making the alleged settlement, the trial court did not err in entering the order compelling compliance with the settlement agreement.

We are in agreement with the position of the plaintiffs. The party seeking a judgment on compromise and settlement has the burden of establishing assent by the opposing party. Goff v. Indian Lake Estates, Inc., Fla.App.1965, 178 So.2d 910. The mere employment of an attorney to represent a client with respect to litigation or other matters does not of itself give the attorney the implied or apparent authority to compromise or settle his client’s cause of action. Palm Beach Royal Hotel, Inc. v. Breese, Fla.App.1963, 154 So.2d 698. An exception to this rule is a situation in which the attorney is confronted with an emergency which requires prompt action to protect his client’s interests and the situation is such that consulation with the client is impossible. Bursten v. Green, Fla.App.1965, 172 So.2d 472. There is, of course, no objection to the client giving his attorney special or express authority to compromise or settle his cause of action, but such authority must be clear and unequivocal. Bursten v. Green, supra. An unauthorized compromise, executed by one’s attorney, however, unless subsequently ratified, is of no effect and may be repudiated or ignored and treated as a nullity by one in whose behalf it was executed. Palm Beach Royal Hotel, Inc. v. Breese, supra; State Department of Transportation v. Plunske, Fla.App.1972, 267 So.2d 337.

Our review of the record failed to indicate that there was an emergency situation, or that plaintiffs’ counsel had authority to settle or that the plaintiffs ratified the agreement. Accordingly, we reverse the order compelling settlement and remand the cause to the trial court for further proceedings consistent herewith.

Reversed and remanded with directions.


text:
    Robert SIMBOLI, Appellant, v. Jerry MILLER and J. M. Feighery Company, a Georgia Corporation, Appellees.
    No. 75-315.
    District Court of Appeal of Florida, Third District.
    Feb. 3, 1976.
    Herskowitz & Grossman, Abramson & Butter, Miami, for appellant.
    Fowler, White, Burnett, Hurley, Banick & Knight, Wheeler & Evans, Miami, for appellees.
    Before PEARSON, HENDRY and NATHAN, JJ.
   PER CURIAM.

This is an appeal from an order dismissing one of the defendants from plaintiff’s cause. The dismissal is predicated upon a failure of the court to obtain jurisdiction over the defendant.

The defendant is a Georgia corporation. It sold a machine in Georgia which was later brought to Florida where it is alleged to have caused plaintiff’s injury. While the machine was in Florida, it was serviced by the Georgia corporation. However, the frequency of servicing and the period of time involved is not set forth.

The question presented is whether or not, under the law existing prior to the enactment of Fla.Stat. § 48.193, the present law, a non-resident corporation was doing business in the State of Florida under the very sketchy facts set out above. See Youngblood v. Citrus Associates of New York Cotton Exchange, Inc., Fla.App.1973, 276 So.2d 505, and Pan Americana Television Los Angeles, Inc. v. Latin Media Consultants, Corp., Fla.App.1974, 300 So.2d 730.

We hold that under the rule stated in Atlas Aircraft Corporation v. Buckingham, Fla.App.1974, 302 So.2d 163, the plaintiff has failed to meet its burden of proof that the defendant was doing business in the State of Florida.

Affirmed.

NATHAN, J., dissents.


text:
    Josefa COSTA and Manuel Costa, her husband, Appellants, v. A-1 STATIONERS, INC., a Florida Corporation, Appellee.
    No. 75-575.
    District Court of Appeal of Florida, Third District.
    Feb. 3, 1976.
    Levenstein & Burke, Miami, for appellants.
    Bradford, Williams, McKay, Kimbrell, Hamann & Jennings, Miami, for appellee.
    Before HAVERFIELD and NATHAN, JJ., and CHARLES CARROLL (Ret.), Associate Judge.
   PER CURIAM.

Affirmed. See RCP 1.420(b) and Rocino v. Saxon, Fla.App.1969, 222 So.2d 274.


text:
    D. L. B., a juvenile, Appellant, v. The STATE of Florida, Appellee.
    No. 75-779.
    District Court of Appeal of Florida, Third District.
    Feb. 3, 1976.
    Phillip A. Hubbart, Public Defender, and Bennett H. Brummer, Asst. Public Defender, for appellant.
    Robert L. Shevin, Atty. Gen., and Linda C. Hertz, Asst. Atty. Gen., for appellee.
    Before PEARSON, HENDRY and NATHAN, JJ.
   PER CURIAM.

Affirmed. See State v. Young, Fla.1968, 217 So.2d 567; State ex rel. Faircloth v. District Court of Appeal, Third District, Fla.1966, 187 So.2d 890; Williams v. State, Fla.App.1973, 276 So.2d 94; State v. Barber, Fla.1975, 301 So.2d 7.


author: BOYER, Chief Judge.

text:
    Marilyn SLUDER, Appellant, v. Louis SLUDER, Appellee.
    No. Y-236.
    District Court of Appeal of Florida, First District.
    Feb. 10, 1976.

      Roy Lewis, Jacksonville, for appellant.
    Clarence M. Wood, Jacksonville, for ap-pellee.
   BOYER, Chief Judge.

Numerous points are raised in this appeal, all being without merit. However, appellant’s contention that the trial court erred in reducing her alimony necessitates a written opinion. Appellant has apparently misconstrued the import of our decision in White v. White, Fla.App. 1st 1974, 296 So.2d 619. In that case we held that, in the absence of a pre-existing order to the contrary, a father’s legal obligation to support his competent child ceases when the child attains 18 years of age. We did not hold nor infer that a father may not or should not aid his child, particularly in regard to the obtaining of an education. We there said:

“. . . It is certainly desirable and laudable for parents to encourage their offspring to get a college education if he or she is college material. . . . ”
“If the son deserves his father’s financial help we would encourage and urge the father, appellant here, to respond...."

Sub judice appellant urges that the expenditures by her former husband (appel-lee) incident to educating their children who have already attained 18 years of age should not be considered as a legitimate obligation and expense by the appellee in determining his net financial condition. As demonstrated by those parts of our White opinion above quoted, that decision is not subject to the construction contended by appellant. The learned and able trial judge did not err.

Affirmed.

RAWLS and MILLS, JJ., concur.

      . Under the facts of the case sub judice, the import of White is not diminished by (and is probably strengthened so far as the point here resolved is concerned) Finn v. Finn, Sup.Ct. Fla.1975, 312 So.2d 726.