text:
    ARTISTIC DOOR CORP., a Florida Corporation, and Artistic Fiberglass Corp., a Florida Corporation, Appellants, v. William H. RHENEY et al., Appellees.
    No. 78-2399.
    District Court of Appeal of Florida, Third District.
    May 13, 1980.
    Rehearing Denied June 27, 1980.

      Adolfo del Castillo, Coral Gables, Goodwin, Ryskamp, Welcher & Carrier and Kenneth L. Ryskamp, Miami, for appellants.
    Carl H. Hoffman, Miami, for appellees.
    Before HENDRY and SCHWARTZ, JJ., and VANN, HAROLD R. (Ret.), Associate Judge.
   PER CURIAM.

This is an appeal by the defendants, Artistic Door Corp. and Artistic Fiberglass Corp., from a final summary judgment wherein the trial court held that certain subcontractor agreements sold by the appellants were in fact securities required to be registered pursuant to the provisions of Chapter 517, Florida Statutes (1975).

The plaintiffs have cross appealed an order of the trial court denying their motion for directed verdict against an individual defendant, one Jose D. Susacasa, who they claimed violated Section 517.21(1), Florida Statutes (1975) and was therefore personally liable.

The undisputed facts in this case show that Artistic Fiberglass Corp. was formed for the purpose of selling certain subcontractor agreements. The individual defendants, Don Phillips and Jose D. Susacasa, owned Artistic Fiberglass Corp. A short period after implementing and actually selling some of the subcontract agreements, Susacasa and Phillips terminated their relationship and Susacasa formed the Artistic Door Corp. which continued selling the subcontractor agreements. Other than legal fees and costs of incorporation, Susacasa and Phillips did not put any money into either of the corporations. The corporations’ sole source of income and working capital was derived from the sale of the subcontractor agreements. The corporations’ place of business was located on the premises of Southern Cabinet (a proprietorship owned by Susacasa and his wife) from which the corporations purchased the necessary kits to be distributed to purchasers of the subcontractor agreements. Sales of the subcontractor agreements were generated principally by the running of paid advertisements in classified sections of local newspapers. The advertising for subcontractor agreements offered potential purchasers continuing income at a rate of $300 per week based upon an initial investment of $2,995. Upon purchase of the subcontractor agreement the purchaser was to receive six kits for the assembly of fiberglass doors and the tools needed to effect such assembly. The purchaser was also given some training to enable him to assemble the doors. The income promised arose from that portion of the subcontractor agreement whereby the company obligated itself to purchase from the subcontractor up to a total of six doors each week for a period of two years. The subcontractor was to be paid $50.00 per door and was to be supplied with a replacement kit for each door purchased by the company. Subcontractors could, in some instances, sell any doors they produced over six each week on the open market, but the plan was designed for a maximum production of six doors a week. Individuals could purchase more than one subcontractor agreement thereby increasing the number of doors they could sell to the company. The companies did in fact purchase the assembled doors from various subcontractors but at no time did they resell any of these doors. They continued to purchase some 1,000 doors until a temporary restraining order prohibited the sale of any more subcontractor agreements. Thereupon, the company refused to purchase additional assembled doors.

Based upon these undisputed facts the trial court concluded as a matter of law that the subcontractor agreements were investment contracts and, therefore, were securities within the meaning of Section 517.-02(1), Florida Statutes (1975), and were required to be registered pursuant to the applicable provisions of Chapter 517, Florida Statutes (1975). We agree and hereby affirm the final summary judgment appealed herein.

Section 517.02(1), Florida Statutes (1975), defines a security for purposes of Chapter 517, Florida Statutes (1975), as follows:

“(1) ‘Security’ shall include any note, stock, treasury stock, bond, debenture, evidence of indebtedness, certificate of interest or participation, whiskey warehouse receipt or other commodity warehouse receipt, or right to subscribe to any of the foregoing; certificates of interest in a profit-sharing agreement, or the right to participate therein; certificate of interest in an oil, gas, petroleum, mineral or mining title or lease, or the right to participate therein; collateral trust certificate, preorganization certificate, preorganization subscription, or any transferable share, investment contract, or beneficial interest in title to property, profits or earnings; interests in or under a profit-sharing or participation agreement or scheme, or any other instrument commonly known as a security, including an interim or temporary bond, debenture, note, certificate or receipt for a security or for subscription to a security.” (Emphasis added)

Florida courts have recognized two separate and distinct tests for determination of whether or not a transaction (such as involved herein) constitutes an investment contract and consequently a security subject to the provisions of Chapter 517, Florida Statutes. These tests are known as the Howey Test and the Risk Capital Test. See Florida Discount Centers, Inc. v. Antinori, 226 So.2d 693 (Fla. 2d DCA 1969); Frye v. Taylor, 263 So.2d 835 (Fla. 4th DCA 1972); O’Neill v. State, 336 So.2d 699 (Fla. 4th DCA 1976); Levine v. I. R. E. Properties, Inc., 344 So.2d 938 (Fla. 3d DCA 1977).

The Howey Test as set forth in Securities and Exchange Commission v. W. J. Howey & Company, 328 U.S. 293, 66 S.Ct. 1100, 90 L.Ed. 1244 (1946) is whether the scheme involves an investment of money in a common enterprise with profits to come solely from the efforts of another.

The Capital Risk Test as formulated in Silver Hills Country Club v. Sobieski, 55 Cal.2d 811, 13 Cal.Rptr. 186, 361 P.2d 906 (1961) and State ex rel Healy v. Consumer Business Systems, Inc., 5 Or.App. 19, 482 P.2d 549 (1971) holds that a particular financial activity constitutes an offer of an investment contract if a substantial portion of the capital which a franchisor uses to initiate its operations is being provided by the franchisees.

Whether or not the instant transaction falls within the definition set forth in either or both of these tests is dependent upon the facts and circumstances of this individual case. Levine v. I. R. E. Properties, Inc., supra. Viewing this transaction with that in mind we find that it meets the criteria of both tests and constitutes a security within the definition of Section 517.-02(1), Florida Statutes (1975). Under the Howey Test the instant case clearly shows that while the subcontractors did assemble the doors in question their source of return on their investment was to be derived solely by the efforts of the companies, to-wit: the finishing and sale of said doors by the companies. Its failure to effectuate a resale of said doors would of necessity eventually render it unable to purchase said doors from the subcontractors as assembled. As to the Capital Risk Test the facts of this case clearly show that all of the capital used to initiate the companies’ operations did in fact come from the subcontractors.

Therefore, we find the trial court was correct in holding that the transactions were in fact securities under Section 517.-02(1), Florida Statutes (1975) and that the transactions were invalid for failure to register pursuant to the provisions of Chapter 517, Florida Statutes (1975).

As to the appellees’ cross appeal we find that the trial court erred in failing to direct a verdict in favor of plaintiffs against the individual defendant Jose D. Susacasa and reverse.

Section 517.21(1), Florida Statutes (1975) provides that an officer, director or agent of the seller may be held personally liable for the sale of illegal securities if that individual has engaged in some act or conduct which induces the purchaser to invest. Ruden v. Medalie, 294 So.2d 403 (Fla. 3d DCA 1974). Susacasa’s uncontradicted testimony clearly reveals that his conduct throughout the entire transaction (including but not limited to the placing of advertising; permitting the corporations to locate their offices at his place of business, Southern Cabinet; being 100% shareholder of Artistic Door Corp.; and permitting the use of the premises of Southern Cabinet for solicitation of the subcontractor agreements) was more than sufficient to render him individually liable to the purchasers of the subcontract agreements. See Strom v. Black, 22 Ariz.App. 102, 523 P.2d 1339 (1974).

In light of that uncontradicted testimony, there was no evidence submitted upon which a verdict for Susacasa .could lawfully be sustained and the trial court should have granted the plaintiffs’ motions for directed verdict. Baro v. Wilson, 134 So.2d 843 (Fla. 3d DCA 1961); C & H Contractors, Inc. v. McKee, 177 So.2d 851 (Fla. 2d DCA 1965); First American Farms Inc. v. Marden Manufacturing Company, 255 So.2d 536 (Fla. 1st DCA 1971); Schnabel v. Mormann, 324 So.2d 197 (Fla. 1st DCA 1976).

Based on the foregoing, the summary judgment finding that the subcontracts sold herein were in fact securities and imposing liability against the defendant corporations is hereby affirmed.

The order denying the plaintiffs’ motions for directed verdict against the individual defendant, Susacasa, is reversed and remanded with directions that judgment be entered in favor of the appellees, plaintiffs in the trial court.

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


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    Glenn Edward SMITH and Dennis Max Miller, Appellants, v. The STATE of Florida, Appellee.
    Nos. 79-1101, 79-1119.
    District Court of Appeal of Florida, Third District.
    May 13, 1980.
    Rehearing Denied June 27, 1980.
    William M. Grodnick, Alan I. Karten, Miami, for appellants.
    Jim Smith, Atty. Gen., and Calvin L. Fox, Asst. Atty. Gen., for appellee.
    Before SCHWARTZ and PEARSON DANIEL, JJ., and VANN, HAROLD R. (Ret.), Associate Judge.
   PER CURIAM.

Affirmed. State v. Goodley, 381 So.2d 1180 (Fla. 3d DCA 1980); Mata v. State, 380 So.2d 1157 (Fla. 3d DCA 1980); Husted v. State, 370 So.2d 853 (Fla. 3d DCA 1979).


author: HUBBART, Judge.

text:
    DADE COUNTY, Florida, Petitioner, v. Stanley M. GOLDSTEIN, Thomas G. Sherman and the Honorable Lenore C. Nesbitt, Respondents.
    No. 79-1733.
    District Court of Appeal of Florida, Third District.
    May 13, 1980.
    Rehearing Denied June 27, 1980.

      Robert A. Ginsburg, County Atty. and Mark A. Dresnick and Ralph C. Rocheteau, III, Asst. County Attys., for petitioner.
    Stanley M. Goldstein, Thomas G. Sherman, Miami, for respondents.
    Lawrence E. Besser, Miami, for Florida Criminal Defense Attorneys Association, as amicus curiae.
    Before HENDRY and HUBBART, JJ., and VANN, HAROLD (Ret.), Associate Judge.
   HUBBART, Judge.

This is a petition for a writ of certiorari to review an order of the trial court awarding counsel fees to two court-appointed attorneys in a criftiinal case which the petitioner Dade County is required to pay. We have jurisdiction to entertain this petition. Dade County v. Grossman, 354 So.2d 131 (Fla.3d DCA 1978); Dade County v. McCrary, 260 So.2d 543 (Fla.3d DCA 1972); Dade County v. Strauss, 246 So.2d 137 (Fla.3d DCA 1971), cert. denied 253 So.2d 864 (Fla.1971), cert. denied 406 U.S. 924, 92 S.Ct. 1793, 32 L.Ed.2d 125 (1972).

The central issue presented for review centers around the authority of a trial court to appoint and compensate a private attorney to represent an insolvent adult criminal defendant at the trial level where the public defender has been permitted by the court to withdraw from representing such defendant because of a conflict of interest. For the reasons developed below, we conclude that under Sections 27.53(2), (3), 925.036, Florida Statutes (1979): (a) the trial court may appoint for compensation purposes one, but no more than one, member of the Florida Bar to represent such an insolvent criminal defendant, (b) the trial court may, in its discretion, award such court-appointed counsel a fee to be computed entirely on an hourly basis [based on a determination of the reasonable number of hours expended by counsel in the defense of said defendant] according to an hourly rate to be set by the chief judge or senior judge of the circuit, which rate shall not exceed the prevailing hourly rate for similar representation rendered in the circuit, and (c) the fee awarded to court-appointed counsel shall in no event exceed the following maximum amounts at the trial level per defendant per case [in this context, a case is a count in an indictment or information charging an alleged crime under Florida law]: $2,500 for a capital case, $2,000 for a life felony case, $1,500 for a noncapital, nonlife felony case, and $500 for a misdemeanor case. As the trial court herein did not fully comply with the above statutory requirements in awarding counsel fees in this cause, we are compelled to quash the order under review and remand for further proceedings.

I

The facts pertaining to the above issue are undisputed. On May 3, 1979, the Dade County Grand Jury returned a four-count indictment against the defendant Roy Alan Stewart. The defendant Stewart was charged by this indictment with (1) first degree murder, a capital felony [§ 782.-04(l)(a), Fla.Stat. (1979)]; (2) robbery with a deadly weapon, a first degree felony [§ 812,13(2)(a), Fla.Stat. (1979)]; (3) sexual battery on a person over the age of eleven using actual physical force likely to cause serious personal injury, a life felony [§ 794.-011(3), Fla.Stat. (1979)], and (4) burglary using a dangerous weapon, a first degree felony [§ 810.02(2), Fla.Stat. (1979)]. On April 11, 1979, the Circuit Court for the Eleventh Judicial Circuit of Florida appointed the Dade County Public Defender to represent the defendant Stewart on this indictment.

On April 27, 1979, the public defender filed a pleading which certified that there was a conflict of interest between the defendant Stewart and other defendants represented by the public defender. Accordingly, the public defender moved the trial court to withdraw from representing the defendant Stewart and to appoint private counsel to represent said defendant under Section 27.53(3), Florida Statutes (1979). On April 27, 1979, the trial court heard and granted the public defender’s motion, permitted the public defender to withdraw from representing the defendant Stewart, and appointed a private attorney [the respondent Stanley M. Goldstein] to represent the defendant Stewart on the pending four-count indictment. On May 8,1979, the trial court, upon Mr. Goldstein’s request and the defendant Stewart’s approval, also appointed the respondent Thomas G. Sherman to serve as co-counsel for the defendant Stewart on the pending four-count indictment because of the apparent complexity of the case.

Upon the defendant Stewart’s plea of not guilty, the cause was tried in the trial court on June 25-July 5,1979. The jury returned a verdict of guilty as charged save for count II where a guilty verdict on a lesser offense was rendered. The defendant Stewart was sentenced to death on the first count of the indictment and to varying terms of imprisonment to be served concurrently on the remaining three counts of the indictment. An appropriate notice of appeal was subsequently filed and the appeal is presently pending before the Florida Supreme Court.

On or about July 26, 1979, the respondents Mr. Goldstein and Mr. Sherman filed sworn motions with the trial court for counsel fees to compensate them for representing the defendant Stewart at the trial level on the four-count indictment herein. Both motions allege that certain hours, both in court and out of court, were spent in the defense of this cause. Also affidavits as to reasonable attorneys fees were filed by Mr. Goldstein and Mr. Sherman in support of their motions. The trial court heard the motions at a full hearing in which the petitioner Dade County was permitted to participate.

On August 3,1979, the trial court entered an order, from which this petition for cer-tiorari is taken, awarding a fee of $8,500 to the respondent Stanley M. Goldstein and a fee of $8,500 for the respondent Thomas G. Sherman to be paid by Dade County. This fee was based upon Section 925.036, Florida Statutes (1979), although the trial court concluded that it also had inherent power aside from the statute to compensate counsel in this cause. No determination was made in this order as to the reasonable number of hours which either counsel spent in the defense of this cause. There is further no mention made in the order as to any hourly rate set by the chief judge of the circuit or the senior judge thereof, as required by the above statute. Moreover, our review of the record reflects no such order by the chief judge or senior judge of the circuit. This petition for a writ of certiora-ri follows.

II

The statute [§ 27.53(3), Fla.Stat.(1979)], under which the respondents Mr. Goldstein and Mr. Sherman were appointed by the court as counsel for the defendant Stewart after the public defender was permitted to withdraw, provides as follows:

“(3) If at any time during the representation of two or more indigents the public defender shall determine that the interests of those accused are so adverse or hostile that they cannot all be counseled by the public defender or his staff without conflict of interest, or that none can be counseled by the public defender or his staff because of conflict of interest, it shall be his duty to move the court to appoint one or more members of The Florida Bar who are in no way affiliated with the public defender in his capacity as such, or in his private practice, to represent those accused. However, the trial court shall appoint such other counsel upon its own motion when the facts developed upon the face of the record and files in the cause disclose such conflict, and said attorney may, in the discretion of the court, be paid a fee and costs and expenses as is provided in subsection (2).” § 27.53(3), Fla.Stat.(1979).

By its plain language, the above statute authorizes the public defender to move the trial court to appoint one or more members of the Florida Bar who are in no way affiliated with the public defender to represent public defender indigent defendants upon a determination that the interests of these defendants are so adverse and hostile that they cannot all be represented by the public defender or his staff without conflict of interest. The statute, by implication, contemplates that the trial court may grant the defendant’s motion, if well founded, and appoint one member of the Florida Bar to represent each indigent defendant. Such counsel who are so appointed may, in the court’s discretion, be awarded a fee, costs and expenses as provided by subsection (2) of the statute. This subsection, in turn, provides that “[s]uch fee and costs and expenses shall be fixed by the trial judge and shall be paid in the same manner and amount as counsel fees are paid in capital cases or as otherwise provided by law.” § 27.53(2), Fla.Stat.(1979).

Section 925.036, Florida Statutes (1979), provides the method by which the court may compensate an attorney who is appointed, as here, under Section 27.53, Florida Statutes (1979). The subject statute reads as follows:

“An attorney appointed pursuant to s. 925.035 or s. 27.53 shall, at the conclusion of the representation, be compensated at an hourly rate fixed by the chief judge or senior judge of the circuit in an amount not to exceed the prevailing hourly rate for similar representation rendered in the circuit. Such attorney shall be reimbursed for expenses reasonably incurred, including the costs of transcripts authorized by the court. The compensation for representation shall not exceed the following per case per defendant:
(1) For misdemeanors and juveniles represented at the trial level: $500.
(2) For noncapital, nonlife felonies represented at the trial level: $1,500.
(3) For life felonies represented at the trial level: $2,000.
(4) For capital cases represented at the trial level: $2,500.
(5) For representation on appeal: $1,000.”
§ 925.036, Fla.Stat.(1979).

By its plain terms, this statute provides that an attorney appointed under Section 27.53, Florida Statutes (1979), shall be compensated exclusively at an hourly rate to be fixed by the chief judge or the senior judge of the circuit in an amount not to exceed the prevailing hourly rate for similar representation rendered in the circuit. As such, the trial court by implication must find, based on a proper showing, that the appointed attorney reasonably expended a certain amount of hours in representing the indigent client, and, thereafter, compute the fee due based on the above established hourly rate. The statute provides no other method by which a fee may be computed, as for instance, taking into consideration the nature of the services rendered, the responsibility incurred, the skill required, the circumstances under which it was rendered, the value of the services to the client, and the beneficial results, if any, of the services. See Pfohl v. Pfohl, 345 So.2d 371, 379 (Fla. 3d DCA 1977). Under the above statute, the exclusive method of compensating counsel is computed solely on the above hourly basis.

Regardless of the reasonable number of hours expended by counsel, the above statute further provides that in no event shall the fee award exceed the following maximum amounts per defendant per case, to wit: $2,500 per capital felony case, $2,000 per life felony case, $1,500 per noncapital, nonlife felony case, $500 per misdemeanor case. In our.view, a case as so used by the statute must be considered a count charging an alleged crime in an indictment or information as applied to an adult criminal trial. Any other interpretation makes little sense. For example, when we deal with a multi-count indictment or information charging various types of felonies [which may include capital, life, and first, second or third degree felonies], as well as misdemeanors, one can only logically categorize each count as a capital case, a life felony case, a noncapital, nonlife felony case, and a misdemeanor case, depending on the crime charged therein. We reject Dade County’s contention that a case should be construed as an indictment or information no matter how many or what kinds of counts or charges are contained therein, because it would be logically impossible to determine thereafter what type of case it was as each count may charge, as here, significantly different crimes. The only logical way of interpreting the statute, in our view, is to consider each count as a separate case and categorize the case according to the crime charged in the count. Moreover, it makes no sense and is patently unfair to compensate an attorney who represents an insolvent defendant on a one-count indictment or information on the same basis as an attorney who represents an insolvent defendant on a multi-count indictment or information; the amount of work expended in defense of the two types of indictments or informations is frequently different as the multi-count indictment or information necessarily exposes the defendant to a much greater criminal liability. In short, any other construction of the statute, other than the one we reach herein, would yield an illogical and unreasonable result which we are constrained by law to avoid. Thomas v. State, 317 So.2d 450 (Fla. 3d DCA 1975).

Ill

We turn now to the order under review in the instant case to determine whether the above statutory requirements were met. We conclude that such requirements were not met.

A

The subject order awards a separate fee to two attorneys for representing one defendant. Section 27.53(3), Florida Statutes (1979), however, contemplates the appointment of only one attorney to represent one indigent defendant for which a fee may later be awarded to the said attorney. As Mr. Goldstein was the first appointed, and apparently lead counsel in the instant case, only he may be compensated by the trial court. Although the trial court clearly had the inherent authority to appoint Mr. Sherman as co-counsel for the defendant in this cause, it had neither the statutory authority, nor the inherent authority apart from any statute, to provide compensation for Mr. Sherman in the cause. MacKenzie v. Hillsborough County, 288 So.2d 200 (Fla.1973); Seminole County v. Waddell, 382 So.2d 357 (Fla. 5th DCA 1980).

We fully recognize that Mr. Sherman as co-counsel herein may have expended a great deal of effort and time in the defense of a truly exhausting cause for which he is to be greatly commended. His services were rendered in the highest traditions of the legal profession on a pro bono basis, in line with what many attorneys in many criminal cases over the years have also been called upon to do. Nothing we say here, however, shall preclude Mr. Goldstein [who with the approval of the defendant Stewart and the trial court, sought out Mr. Sherman’s services in this cause] from himself compensating Mr. Sherman in any amount he deems reasonable if done in accordance with Fla.Bar Code Prof.Resp., DR 2-107.

The $8,500 fee awarded to Mr. Sherman, as contained in the order under review, must, accordingly, be quashed' as not authorized by the above statutes. We further disapprove that portion of the order under review which arrogates to the court an inherent authority to award fees over and above that authorized by applicable statutory law. MacKenzie v. Hillsborough County, 288 So.2d 200 (Fla.1973); Seminole County v. Waddell, 382 So.2d 357 (Fla. 5th DCA 1980).

B

The subject order awards an $8,500 fee to Mr. Goldstein, but makes no finding as to the reasonable number of hours expended by Mr. Goldstein at the trial level in the defense of the defendant Stewart. There is further no reference in the order, and none in the record, to the hourly rate, if any, fixed by the chief judge of the circuit nor the senior judge thereof for court-appointed counsel in cases of this nature. As such, there is no mathematical computation of the fees [required by the above statutory law] as to the reasonable number of hours expended by Mr. Goldstein multiplied by the established hourly rate.

Finally, the $8,500 awarded Mr. Goldstein exceeds, in any event, the statutory maximum allowable by law in this cause as the maximum which Mr. Goldstein could receive under the statute [provided the reasonable number of hours times the hourly rate justified same] was $7,500. Mr. Gold-stein could receive no more than $2,500 in defending the first degree murder count, a capital felony case [§ 782.04(l)(a), Fla. Stat.(1979)], no more than $1,500 in defending the robbery with a deadly weapon count, a first degree felony [§ 812.13(2)(a), Fla.Stat.(1979)] and thus a noncapital, non-life felony case, no more than $2,000 in defending the sexual battery count, a life felony case [§ 794.011(3), Fla.Stat.(1979)], no more than $1,500 in defending the burglary with a dangerous weapon count, a first degree felony [§ 810.02(2), Fla. Stat.(1979)] and thus a noncapital, nonlife felony case. The total maximum amount for defending these four cases is $7,500.

The $8,500 fee awarded to Mr. Goldstein, must, accordingly, be quashed as it was not computed on an hourly basis as required by law, and, in any event, exceeds the statutory maximum. Upon remand, the trial court may take additional evidence and thereafter enter an order awarding a fee to Mr. Goldstein based on the above statutory requirements.

IV

The petition for writ of certiorari is granted, the order under review is quashed and the cause is remanded to the trial court with directions: (1) to vacate the $8,500 attorney fee award to the respondent Thomas G. Sherman, and (2) to conduct further proceedings and thereafter enter an order awarding a fee to the respondent Mr. Stanley M. Goldstein according to the above statutory requirements as interpreted in this opinion.

      . In all fairness to the trial court, it should be noted that the above statutory requirements have not heretofore been definitely interpreted by a Florida appellate court. Moreover, these requirements have given rise to many divergent interpretations by the bench and bar at the trial level. We hope we have dispelled at least part of that confusion by the decision which we render herein.

      . The subject indictment in this cause reads as follows:
      "IN THE CIRCUIT COURT OF THE ELEVENTH JUDICIAL CIRCUIT OF FLORIDA, IN AND FOR DADE COUNTY FALL TERM, 1978
      STATE OF FLORIDA vs. ROY ALLEN STEWART, DEFENDANT.
      #79-6621
      INDICTMENT
      I FIRST DEGREE MURDER
      II ROBBERY
      III SEXUAL BATTERY
      IV BURGLARY
      IN THE NAME AND BY THE AUTHORITY OF THE STATE OF FLORIDA:
      The Grand Jurors of the State of Florida, duly called, impaneled and sworn to inquire and true presentment make in and for the body of the County of Dade, upon their oaths, present that between February 21, 1979 and February 24, 1979, within the County of Dade, State of Florida, ROY ALLEN STEWART did, unlawfully and feloniously, from a premeditated design to effect the death of MARGARET HAIZLIP, a human being while engaged in the perpetration of, or in an attempt to perpetrate Sexual Battery, kill MARGARET HAIZLIP, a human being, by beating or striking the said MARGARET HAIZLIP with his fists or hands and strangling the said MARGARET HAIZLIP with an electrical cord, in violation of Florida Statute 782.04, to the evil example of all others in like cases offending and against the peace and dignity of the State of Florida.
      COUNT II
      The Grand Jurors of the State of Florida, duly called, impaneled and sworn to inquire and true presentment make in and for the body of the County of Dade, upon their oaths, present that between February 21, 1979 and February 24, 1979, within the County of Dade, State of Florida, ROY ALLEN STEWART did unlawfully by force, violence, assault or putting in fear, take certain personal property, to-wit: A watch, the property of MARGARET HAIZLIP, as owner or custodian, from the person or custody of MARGARET HAIZLIP, said property being the subject of larceny and of the value of less than ONE HUNDRED DOLLARS ($100.00), and in the course of committing said ROBBERY, carried a deadly weapon, to-wit: A knife, in violation of 812.13 Florida Statutes, to the evil example of all others in like cases offending and against the peace and dignity of the State of Florida.
      COUNT III
      The Grand Jurors of the State of Florida, duly called, impaneled and sworn to inquire and true presentment make in and for the body of the County of Dade, upon their oaths, present that between February 21, 1979 and February 24, 1979, within the County of Dade, State of Florida, ROY ALLEN STEWART did unlawfully and feloniously commit sexual battery upon MARGARET HAIZLIP, a person over the age of eleven (11) years, by inserting his penis into the vagina of the said MARGARET HAIZLIP, without her consent, and in the process thereof used actual physical force likely to cause serious personal injury, in violation of 794.011(3) Florida Statutes, to the evil example of all others in like cases offending and against the peace and dignity of the State of Florida.
      COUNT IV
      The Grand Jurors of the State of Florida, duly called, impaneled and sworn to inquire and true presentment make in and for the body of the County of Dade, upon their oaths, present that between February 21, 1979 and February 24, 1979, within the County of Dade, State of Florida, ROY ALLEN STEWART, did unlawfully enter or remain in a conveyance, to-wit: An automobile, the property of MARGARET HA-IZLIP, as owner or custodian, the defendant having an intent to commit an offense therein, to-wit: Theft, and in the course of committing said burglary, the defendant did carry a weapon, to-wit: A knife, in violation of 810.02 Florida Statutes, to the evil example of all others in like cases offending and against the peace and dignity of the State of Florida.
      /s/ .1. Richard Soulliere
      J. RICHARD SOULLIERE
      FOREMAN OF THE GRAND JURY”

      . Both Mr. Goldstein and Mr. Sherman were referred to as special assistant public defenders in the court below. This was a misnomer as Section 27.53(3), Fla.Stat.(1979), under which Mr. Goldstein and Mr. Sherman were appointed, specifically provides that the public defender shall upon a determination of specified conflict of interest, move the court to appoint counsel, who is “in no way affiliated with the public defender in his capacity as such . .”. A special assistant public defender is clearly affiliated with the public defender and could not be appointed to represent an insolvent defendant in a conflict case under this statute. Accordingly, we treat both Mr. Goldstein and Mr. Sherman’s appointments as appointments of private lawyers who were in no way affiliated with the public defender, as indeed, it appears without dispute that such is precisely the case.

      . The order under review reads as follows:
      “THIS CAUSE came on to be heard upon the Motions for Reasonable Attorneys’ Fees and/or to Declare Section 925.036, Florida Statutes, Unconstitutional, filed by attorneys Stanley M. Goldstein and Thomas G. Sherman, and the Court, after hearing argument and testimony presented by the movants, and after hearing argument presented by Dade County in opposition to said motions, hereby,
      FINDS that the limitations upon compensation for court-appointed attorneys enumerated in Section 925.036, Florida Statutes (1978), are merely directory to the Court pursuant to the following cases which stand for the proposition that a court is not bound mandatorily to give meaning to the word ‘shall’ in a statute where to do so would be an unreasonable infringement on the inherent power of the court to perform its judicial functions. Simmons v. State, 160 Fla. 626, 36 So.2d 207 (1948); Tascano v. State, 363 So.2d 405 (Fla. 1st DCA 1978); State v. Shipman, 360 So.2d 782 (Fla. 4th DCA 1978); State ex rel. Harrington v. Genung, 300 So.2d 271 (Fla. DCA 1974); Rose v. Palm Beach County, 361 So.2d 135 (Fla.1978). In exercising its inherent power, the Court notes that the Supreme Court has recently held that a defendant charged with a capital crime only has a right to appointed counsel during trial proceedings and direct appellate review of those proceedings, and it is therefore important that the defendant have full and adequate representation at his trial by court-appointed counsel. Petition of A. D. Graham, et al., on Behalf of Nine Condemned Men v. State of Florida, Supreme Court Case No. 56,947, opinion filed June 22, 1979. Therefore, it is
      ORDERED AND ADJUDGED for the foregoing reasons, and for the reasons which were stated by the Court during the reported hearing on these motions, the Court hereby determines that Stanley M. Goldstein and Thomas G. Sherman are each entitled to attorneys’ fees for the representative of defendant Roy Allen Stewart in the above captioned case as Special Assistant Public Defenders and the Court certifies to the Board of Dade County Commissioners that Stanley M. Gold-stein, 1401 Brickell Avenue, Suite 910, Miami, Florida is entitled to a fee of $8,500.00 and that Thomas G. Sherman, 1401 Brickell Avenue, Suite 910, Miami, Florida, is entitled to a fee of $8,500.00 based upon the schedule set down in Section 925.036, Florida Statutes, to wit: $2,500.00 per capital case and $2,000.00 for each life felony incurred in this indictment, which shall be paid to them by Dade County, Florida, after being audited and approved according to law.
      The Court makes no finding regarding the constitutionality of Section 925.036, Florida Statutes (1978).
      DONE AND ORDERED in Chambers at Miami, Dade County, Florida, this 3 day of August, 1979.”

      . The parties have treated these appointments as also made under Section 925.035(1), Florida Statutes (1979). This statute, however, only authorizes the trial court to initially appoint private counsel to represent an insolvent defendant in a capital case. In the case at bar, the trial court chose not to utilize this statute and initially appointed the public defender to represent the defendant Stewart. It could not thereafter utilize the statute to permit the public defender to withdraw as counsel based on the conflict of interest grounds and appoint private counsel to represent the defendant. Section 27.53(3), Florida Statutes (1979), exclusively governs such a procedure, and is, accordingly, the sole statutory authority for the appointments in this cause. In any event, the issue is academic as the result we reach herein would be the same even if the respondent attorneys had also been appointed under Section 925.035(1), Florida Statutes (1979).

      . It should be noted that a life felony under Florida law is not any crime punishable by life imprisonment. A life felony is solely a crime punishable by a minimum of 30 years imprisonment and a maximum life imprisonment and/or a $15,000 fine. §§ 775.081(l)(b), 775.082(3)(a), 775.083(1 )(a), Fla.Stat.(1979). A first degree felony, on the other hand, is not a life felony, although it is punishable by a maximum of 30 years imprisonment or [when specifically provided by statute] life imprisonment and/or a $10,000 fine. §§ 775.081(l)(c), 775.082(3)(b), 775.083(l)(b), Fla.Stat.(1979). As such, the robbery and burglary charges contained in counts II and IV of the indictment herein, although punishable by a maximum of life imprisonment [and/or a $10,000 fine], were not life felonies, but first degree felonies and thus noncapital, nonlife felonies under Section 925.-036(2), Florida Statutes (1979).


author: SCHEB, Judge.

text:
    Alan H. PORTER, M.D., Alan H. Porter, M.D., P.A., and Sarasota Radiation and Medical Oncology Center-Porter, P.A., Appellants, v. WILSON, WALCH, FORTNER, ROBINSON & BESSE, M.D.’S, P.A., Appellee.
    No. 79-1484.
    District Court of Appeal of Florida, Second District.
    May 14, 1980.
    Rehearing Denied June 6, 1980.

      Johnson S. Savary and Steven G. Schem-ber of Kirk, Pinkerton, McClelland, Savary & Carr, Sarasota, for appellants.
    Richard E. Nelson and Robert C. Widman of Nelson, Hesse, Cyril, Weber, Smith & Widman, Sarasota, for appellee.
   SCHEB, Judge.

This is an appeal from a nonfinal order in which the trial court found appellee entitled to recover both compensatory and punitive damages from appellants for breach of contract and tortious interference with contract. We hold the evidence was not sufficient to allow the jury to conclude that appellee was entitled to recover punitive damages. Thus, we reverse the award of punitive damages; otherwise, we affirm.

Wilson-P.A., a group of Sarasota physicians specializing in radiotherapy, contracted to furnish Porter-P.A. office space and sell it medical and office equipment for the practice of radiotherapy. In return, Porter-P.A. agreed to pay Wilson-P.A. a percentage of its monthly billings from its radiotherapy practice over a two-year period. Dr. Porter was the only radiotherapist employed by Porter-P.A. and signed the contract in his capacity as president. During the contract period Porter established Oncology-P.A. which acquired a linear accelerator and began furnishing radiotherapy services from a second location in Sarasota County.

Wilson sued Porter, Porter-P.A. and Oncology-P.A. for breach of contract and Porter and Oncology-P.A. for tortious interference with contract seeking both compensatory and punitive damages. Wilson contended that Oncology-P.A.’s activities had reduced the billings of Porter-P.A. thereby decreasing the purchase price contemplated by the parties. The trial court ordered separate trials on the issues of liability and damages. At the close of the evidence in the liability trial, Porter, Porter-P.A. and Oncology-P.A. moved to dismiss Wilson-P. A.’s claim for punitive damages. The trial court denied the motion and the jury returned a verdict that Wilson-P.A. was entitled to recover compensatory damages for breach of contract against Porter-P.A., and compensatory and punitive damages against Porter and Oncology-P.A. This appeal ensued.

While the evidence was conflicting, it was sufficient to support the jury’s determination that Porter-P.A. had breached its contract with Wilson-P.A., and that Porter and Oncology-P.A. had interfered with performance of that contract. We have considered each of the points raised by appellants and, except for the issue of punitive damages, we find them to be without merit. We agree with appellants on that point. The court improperly allowed the jury to consider the issue of punitive damages:

Since damages for breach of contract are generally limited to the pecuniary loss sustained; punitive or exemplary damages are not ordinarily recoverable in actions for breach of contract, even where the breach is willful and flagrant. This rule does not obtain, however, in those exceptional cases where the breach amounts to an independent, willful tort, in which event exemplary damages may be recovered under proper allegations of malice, wantonness, or oppression. In such a case, the recovery must be based upon an intentional wrong, insult, abuse, or gross negligence, which amounts to an independent tort.

17 Fla.Jur.2d Damages § 117 (1980) (footnotes omitted); Nicholas v. Miami Burglar Alarm Co., 339 So.2d 175 (Fla.1976); Griffith v. Shamrock Village, Inc., 94 So.2d 854 (Fla. 1957); see Annot., 84 A.L.R. 1345 (1933).

Here there was no evidence of wilfulness or wantonness or that the breach was attended by fraud or gross negligence. See Bill Branch Chevrolet, Inc. v. Redmond, 378 So.2d 319 (Fla.2d DCA 1980). The evidence as to the breach was in sharp conflict but there was no evidence indicating that the breach or the interference was accompanied by malice. In fact, Porter’s attorney, who had established Porter-P.A. and advised it in contract negotiations with Wilson-P.A., as well as Porter, testified that prior to establishing Oncology-P.A., Porter had asked the attorney whether establishing Oncology-P.A. would violate the contract between Porter-P.A. and Wilson-P.A. The attorney advised him that it would not. This testimony negated any possible inference of maliciousness on the part of Porter and, therefore, the trial court erred in denying the appellants’ motion for dismissal as to punitive damages.

Accordingly, we reverse the trial court’s order on the issue of punitive damages, affirm all other aspects of the order, and remand for further proceedings consistent with this opinion.

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


text:
    Daniel Roy ORNER, Appellant, v. STATE of Florida, Appellee.
    No. 80-571.
    District Court of Appeal of Florida, Second District.
    May 14, 1980.
    Rehearing Denied June 11, 1980.
    Vaughn C. Brennan, Eaton Park, for appellant.
    Daniel Roy Orner, pro se.
   PER CURIAM.

Appellant, Daniel Roy Orner, appeals from the summary denial of his Florida Rule of Criminal Procedure 3.850 motion on the ground that his sentence of fifteen years was excessive. We affirm.

Appellant pled guilty to the charge of breaking and entering a building other than a dwelling house with intent to commit a felony, to wit: grand larceny. The date of the offense charged was June 16, 1975. Section 810.02, FLorida Statutes (1973), provides that whoever breaks and enters a building other than a dwelling house with intent to commit a felony shall be guilty of a felony in the second degree, punishable as provided in Section 775.082. Section 775.-082 provides that a person who has been convicted of a felony of the second degree may be punished by a term of imprisonment not to exceed fifteen years.

This court’s prior statement in Orner v. State, 370 So.2d 1201 (Fla. 2d DCA 1979), appears to have been based upon Section 810.02, Florida Statutes (1974). That section provides that burglary, without one of the incidents set forth in the court’s opinion, is a felony in the third degree. The maximum imprisonment for a third degree felony is five years. However, Section 810.-02, Florida Statutes (1974), did not become effective until July 1, 1975, fifteen days after the appellant committed the offense for which he was sentenced.

RYDER, Acting C. J., and DANAHY and CAMPBELL, JJ., concur.


author: GRIMES, Chief Judge.

text:
    Julie Catherine TURNER and James Michael Turner, Appellants, v. Martha Lou Fletcher WEEKS and Montine S. McDonald, as Personal Representative of the Estate of Emma Hicks, Deceased, Appellees.
    No. 79-1422.
    District Court of Appeal of Florida, Second District.
    May 16, 1980.
    Rehearing Denied June 11, 1980.
    Paul S. Buchman and J. Miles Buchman of Buchman & Buchman, Plant City, for appellants.
    Leroy H. Merkle, Jr., Tampa, for appellee Martha Lou Fletcher Weeks.
   GRIMES, Chief Judge.

This appeal involves an examination of the interplay between the antilapse statute and the laws of adoption.

Emma Hicks, who died on February 18, 1979, executed a will in 1966 which read in part:

All of the rest, residue, and remainder of the property which I may own at the time of my death, real, personal and mixed, tangible and intangible of whatsoever nature and wheresoever situated including all property which I may acquire or become entitled to after the execution of this Will I bequeath and devise in fee unto my beloved grandnephew, JAMES SPARKMAN FLETCHER of Plant City, Florida, and my beloved grandniece, MARTHA LOU FLETCHER WEEKS of Orlando, Florida, equally share and share alike per stirpes.

James Sparkman Fletcher, one of the two people mentioned in the residuary clause of the will, was the natural father of Julie Catherine Turner and James Michael Turner. He and his wife divorced in 1962, and she received custody of the two children. In 1964 she married Clifford Turner. Mr. Fletcher, who did not remarry, died in 1970, and in 1971 Mr. Turner adopted the two children.

The personal representative of Mrs. Hicks’ estate filed a petition for determination of beneficiaries in order to establish whether Julie and Michael Turner should take under the residuary clause of the will. The court ruled that the Turners were not descendants of Mr. Fletcher, that the devise to Mr. Fletcher had lapsed, and that his share passed to Martha Lou Fletcher Weeks. From this order, the Turners now appeal.

In reaching its conclusion, the court considered two statutes. The first was the antilapse statute, Section 732.603, Florida Statutes (1979), which reads as follows:

732.603 Antilapse; deceased devisee; class gifts. — Unless a contrary intention appears in the will:
(1) If a devisee who is a grandparent, or a lineal descendant of a grandparent, of the testator:
(a) Is dead at the time of the execution of the will,
(b) Fails to survive the testator, or
(c) Is required by the will to be treated as if he predeceased the testator,
then the descendants of the devisee take per stirpes in place of the deceased devi-see. A person who would have been a devisee under a class gift if he had survived the testator shall be a devisee for .purposes of this section whether his death occurred before or after the execution of the will.
(2) If a devisee who is not a grandparent, or a descendant of a grandparent, of the testator:
(a) Is dead at the time of the execution of the will,
(b) Fails to survive the testator, or
(c) Is required by the will to be treated as if he predeceased the testator,
then the testamentary disposition to the devisee shall lapse unless an intention to substitute another in his place appears in the will.

The second statute was Section 63.172, Florida Statutes (1979), which provides in pertinent part:

(1) A judgment of adoption, whether entered by a court of this state, another state, or of any other place, has the following effect:
(b) It terminates all legal relationships between the adopted person and his relatives, including his natural parents, except a natural parent who is a petitioner or who is married to a petitioner, so that the adopted person thereafter is a stranger to his former relatives for all purposes, including inheritance and the interpretation or construction of documents, statutes, and instruments, whether executed before or after entry of the adoption judgment, that do not expressly include the adopted person by name or by some designation not based on a parent and child or blood relationship.
(2) If a parent of a child dies without the relationship of parent and child having been previously terminated and a spouse of the living parent thereafter adopts the child, the child’s right of inheritance from or through the deceased parent is unaffected by the adoption.

The court found that although the antilapse statute would have allowed the Turners to take under the will had it not been for their adoption, because of Section 63.172 the fact of the adoption terminated their rights under the will. The Turners contend on the other hand that this resolution overlooks subsection (2) of Section 63.172. They point out that they fall within the terms of the subsection because their father died before Mr. Turner adopted them. Hence, they assert that their right to take through their father as set out in the antilapse statute is unaffected by the adoption.

We agree with the Turners’ position. The word “descendants” in the anti-lapse statute connotes those persons who are in the bloodstream of the ancestry. In re Estate of Hewett, 153 Fla. 137, 13 So.2d 904 (1943). Therefore, except for the limitations of adoption contained in Section 63.-172(1), there could be no question that the Turners were the descendants of their natural father, Mr. Fletcher. Section 63.172(2) removes any such limitations where matters of inheritance are concerned, and consequently makes the terms of the antilapse statute applicable to the present case.

Relying primarily upon some language in our opinion in In re Estate of Baker, 172 So.2d 268 (Fla. 2d DCA 1965), the trial court concluded that the right of inheritance as referred to in Section 63.172(2) was not involved because the Turners’ claim was based solely upon a right of lineal succession created by the antilapse statute. Not only did Baker predate the passage of Section 63.172, but it dealt with whether an adopted child could take under the antilapse statute as a lineal descendant of her adopting father. In light of Section 63.172(2), we do not believe that the language of Baker precludes the Turners from falling within the provisions of Section 732.603(1). Section 63.172(2) evinces a legislative recognition that the mere fact that a child is adopted by the spouse of one of his natural parents after his other natural parent dies can hardly be expected to diminish the affinity for the child held by members of the deceased parent’s family. We are confident that the legislature used the word “inheritance” in Section 63.172(2) in its modern day broad sense of receiving property from one’s ancestor at his death in whatever manner sanctioned by law. Toomer v. Van Antwerp Realty Corp., 238 Ala. 87, 189 So. 549 (1939); Rivers v. Rivers, 346 S.W.2d 376 (Tex.Civ.App.1961).

For essentially the same reason, we cannot accept appellee’s suggestion that the term “inheritance” as used in Section 63.-172(2) should be read so narrowly as to limit its application to intestate succession. Moreover, there is another statute, Section 732.108, Florida Statutes (1979), which deals with the effect of adoption by the spouse of a natural parent upon intestate succession. Thus, it is logical to assume that, at the very least, Section 63.172(2) must be applicable to testate succession.

We reverse and remand the case for entry of an order consistent with this opinion.

SCHEB and CAMPBELL, JJ., concur.


author: HUBBART, Judge. SCHWARTZ, Judge

text:
    Dov GELKOP, Appellant, v. Jacqueline Esther GELKOP, Appellee.
    Nos. 79-613, 79-1495.
    District Court of Appeal of Florida, Third District.
    May 20, 1980.

      Weinstein & Bavly and Arthur J. Mor-burger, Miami, for appellant.
    Horton, Perse & Ginsberg and Mallory H. Horton, Miami, for appellee.
    Before HUBBART and SCHWARTZ, JJ., and PEARSON, TILLMAN (Ret.), Associate Judge.
   HUBBART, Judge.

This is an appeal from (a) an order of the trial court denying a motion to vacate a final judgment of marriage dissolution under Fla.R.Civ.P. 1.540, and (b) a contempt order of the trial court which enforces the child support award of the final judgment. We have jurisdiction to entertain this appeal. Fla.R.App.P. 9.130(a)(4), (5).

We are confronted on this appeal with an attack on the jurisdiction of the trial court to enter the final judgment of marriage dissolution and to subsequently enforce this final judgment with an order of contempt. For the reasons which follow, wé conclude that the trial court had jurisdiction to enter the final judgment of marriage dissolution in all respects except as to certain real and personal property, lump sum alimony, and loan payment provisions, which we have determined are void for lack of jurisdiction and proper due process notice to the husband. We further conclude that the trial court had no jurisdiction to enter the contempt order. We, accordingly, reverse the orders under appeal and remand for appropriate proceedings.

I

The facts of this case are as follows. On February 16, 1978, the wife Jacqueline Esther Gelkop filed a petition for dissolution of marriage against the husband Dov Gelkop in the Circuit Court for the Eleventh Judicial Circuit of Florida. The petition, which was sworn to, alleged that the wife had resided in Florida for over six months, that the parties were married to one another, that the marriage was irretrievably broken, that one child had been born of the marriage, and that the husband was not a member of the armed forces of the United States. The petition prayed that the trial court take jurisdiction of the subject matter and parties in the cause, dissolve the marriage, restore the wife’s maiden name, award custody of the minor child to the wife, award temporary and permanent child support, court costs and attorneys fees to the wife, restrain the husband from threatening, harassing, annoying or communicating with the wife, and grant such other relief as may seem right and proper. No other factual allegations or •prayers for relief are contained in the petition.

In a sworn affidavit attached to the petition, the wife stated that she had made a diligent search and inquiry to discover the residence of the husband and that his last known address was in Tel Aviv, Israel. A notice was subsequently published in the Jewish Floridian in Dade County, Florida, to the effect that the instant action for marriage dissolution had been filed. The clerk of the trial court in due course mailed both the petition and the notice to the husband at his Tel Aviv address. Neither the petition nor the notice of publication contained any description of any real or personal property that might be the subject of the instant marriage dissolution action. All agree that the husband was otherwise properly served with constructive process in this action pursuant to the applicable sections of Chapter 49, Florida Statutes (1979).

On March 24, 1978, the husband’s Israeli counsel [Arie Molodic] who was not then and has never been admitted to practice law in Florida, sent a letter to the clerk of the circuit court which was later filed with the court. The letter contests in some detail the trial court’s jurisdiction to proceed in the cause and generally denied the allegations of the petition. The wife thereafter moved to strike the letter on the ground that the letter was a legally deficient pleading noting that it had been filed by counsel who was not authorized to practice law in Florida. Upon proper notice and hearing, the trial court granted the motion to strike, gave the husband leave to file any proper and appropriate pleading within 20 days, and found that by virtue of the letter “jurisdiction is properly vested in this [cjourt to determine all issues raised by the [pjetition [f]or [dissolution filed herein.” The husband did not appear personally or through counsel at this hearing and thereafter failed to file any pleadings in the cause.

On July 13, 1978, the trial court, upon proper notice, entered a final judgment of marriage dissolution after a final evidentia-ry hearing at which the husband did not appear. In the final judgment, the trial court ordered the marriage dissolved, upon a finding that the marriage was irretrievably broken, and restored the wife’s maiden name. The final judgment also awarded the wife custody of the parties’ minor child, established a visitation schedule for the husband, restrained the husband from removing the child or harassing the wife, required the husband to pay the wife child support in the amount of $250 a month until the child attained the age of eighteen, established a special equity for the wife in a certain apartment located in Israel [owned by the wife, the wife’s mother, and the husband] and awarded Vi of the present fair market value of this apartment to the wife, ordered the husband to deliver to the wife a certain necklace which was located in Israel, ordered the husband to deliver to the wife a certain 1976 Peugeot automobile titled in the wife’s name (or pay the wife the fair market value thereof), and imposed upon the husband an obligation to pay the remaining balance on a certain Jewish Agency loan. The final judgment further reserved jurisdiction as to certain other matters including attorneys fees and costs.

On November 2, 1978, the husband appeared through Florida counsel and moved the court to vacate the final judgment pursuant to Fla.R.Civ.P. 1.540 on the ground that the judgment was void for lack of jurisdiction. Attached to the motion were two affidavits, to wit: (a) an affidavit by the husband’s Israeli counsel stating that he is a member of the Israeli Bar and represents the husband in pending divorce and child custody actions before an Israeli trial court, that he is not now nor has he ever been licensed to practice law in any American jurisdiction including Florida, and that he was never authorized by the husband to file a general appearance for the husband in the instant Florida marriage dissolution action, and (b) an affidavit by the director of the membership records department of the Florida Bar that the husband’s Israeli counsel is not now and has never been a member of the Florida Bar. The trial court heard and denied the motion; the trial court, upon proper motion and hearing, also adjudicated the husband in contempt for failure to obey the child support provisions of the final judgment. The husband has taken an appeal from these two orders.

II

We have carefully considered the jurisdiction of the trial court to enter the final judgment of marriage dissolution and the subsequent order of contempt together with the established due process notice requirements which are essential to any constitutionally valid judgment or order. Initially, we note that a motion to vacate a final judgment lies under Fla.R.Civ.P. 1.540(b)(4) where the final judgment is void for lack of jurisdiction or proper due process notice, Saharuni v. Saharuni, 343 So.2d 674 (Fla. 2d DCA 1977); Osceola Farms Co. v. Sanchez, 238 So.2d 477 (Fla. 4th DCA 1970); 7 Moore’s Federal Practice § 60.25(2) (1979); Restatement of Judgments § 8, Comment c (1942); and that a contempt order is subject to reversal upon direct appeal therefrom where the trial court had no jurisdiction to enter it. Wood v. Wood, 276 So.2d 527 (Fla. 3d DCA 1973). In considering the jurisdictional and due process issues presented by this appeal, we discuss for convenience sake the various provisions of the final judgment and subsequent contempt order under four separate headings.

A

First, the final judgment of marriage dissolution dissolves the marriage between the parties, upon a finding that their marriage was irretrievably broken, and restores the wife’s maiden name. The trial court clearly had in rem jurisdiction over the marriage to enter these provisions of the final judgment as the husband was properly served by constructive process in the original marriage dissolution action. Lahr v. Lahr, 337 So.2d 837 (Fla. 2d DCA 1976); § 49.011(4), Fla.Stat. (1979). Indeed, the husband concedes this issue both in his brief and on oral argument in this cause. As such, these provisions of the final judgment were validly entered.

B

The final judgment next awards custody of the parties’ minor child to the wife, establishes a visitation schedule for the husband and restrains the husband from removing the child or harassing the wife. The husband contests the trial court’s in rem jurisdiction to enter these child custody provisions based on the constructive service of process perfected herein because the marriage dissolution petition fails to allege that the child resided within the territorial jurisdiction of the court. We find no merit in this contention as the physical presence of the child within the territorial jurisdiction of the court, while desirable, is no longer a prerequisite to the court’s jurisdiction to determine the child’s custody. § 61.1308(3), Fla.Stat. (1979). The husband’s reliance on Rich v. Rich, 214 So.2d 777 (Fla. 4th DCA 1968), for a contrary proposition is no longer good law. See also §§ 61.13(2)(b), 61.1302, Fla.Stat. (1979). As such, the child custody provisions of the final judgment were validly entered by the trial court as against the above attack.

C

The final judgment next establishes a special equity for the wife in an apartment located in Israel [owned by the wife, the wife’s mother, and the husband] and requires the payment to the wife of Vi of the fair market value of such apartment, orders the husband to deliver to the wife a certain necklace located in Israel, orders the husband to deliver to the wife a certain 1976 Peugeot automobile (or the payment to the wife of the fair market value thereof), and orders the husband to pay off the balance on a Jewish Agency loan. These real and personal property, lump sum alimony, and loan payment provisions of the final judgment are void for lack of jurisdiction of the trial court to enter them as well as a lack of proper due process notice to the husband.

First, it is clear that the constructive service of process effected on the husband in this cause could not confer in rem jurisdiction on the trial court to enter any of the above real and personal property provisions of the final judgment because (a) the apartment and necklace in question were located in Israel and thus were outside the territorial jurisdiction of the court; Berlanti Construction Co. v. Republic of Cuba, 145 So.2d 256 (Fla. 3d DCA 1962); and (b) the said apartment, necklace, and 1976 Peugeot automobile were not described, as required by law, in the marriage dissolution petition and the notice of publication sent to the husband. Lahr v. Lahr, 337 So.2d 837 (Fla. 2d DCA 1976); Nethery v. Nethery, 212 So.2d 10 (Fla. 1st DCA 1968); Hennig v. Hennig, 162 So.2d 288 (Fla. 3d DCA 1964).

Secondly, even if the trial court had acquired in personam jurisdiction over the husband by virtue of the letter sent to the trial court by the husband’s Israeli counsel, the above-stated provisions of the final judgment are still void for lack of proper due process notice to the husband because (a) the marriage dissolution petition fails to pray for: a partition of or a special equity in the jointly owned apartment, an award of the necklace and the 1976 Peugeot automobile, an award of alimony, or an order directing the husband to pay the Jewish Agency loan and, (b) the issues raised by these provisions were not tried by consent of the parties as the husband did not appear at the final hearing held in this cause. The absence of such a required prayer for relief, or such trial by consent of the parties, renders the subsequent final judgment void for lack of proper due process notice to the husband even assuming the trial court had personal jurisdiction over the parties. Sullivan v. Sullivan, 363 So.2d 393, 395 (Fla. 2d DCA 1978); Foxx v. Foxx, 357 So.2d 754 (Fla. 1st DCA 1978); Beard v. Beard, 356 So.2d 1313 (Fla. 2d DCA 1978); Rankin v. Rankin, 258 So.2d 489 (Fla. 2d DCA 1972); Coscia v. Coscia, 262 So.2d 254 (Fla. 4th DCA 1972). “Even though the [sjtate has jurisdiction over the parties and even though the court is one of competency to render the judgment, a judgment by default is void if it was outside the cause of action stated in the complaint and if the defendant was not given a fair opportunity to defend against the claim on which the judgment was based.” Restatement of Judgments, § 8, Comment c (1942).

Indeed, the trial court herein found in its order entered upon striking the above-stated letter that it had jurisdiction by virtue of the letter to consider only those issues raised by the petition for marriage dissolution. The instant petition for marriage dissolution in no way raised any of the issues involving the real and personal property, lump sum alimony, and loan payment provisions now under discussion, and, accordingly, the trial court’s judgment as to these matters is, under any view, void for lack of proper due process notice to the husband.

D

We finally turn to those provisions of the final judgment which award child support to the wife and reserve jurisdiction as to certain matters including attorneys fees and costs. The subsequent contempt order was entered for failure of the husband to make the child support payments required by the final judgment. We conclude that the trial court had jurisdiction to enter the above-stated provisions of the final judgment, but had no jurisdiction to enter the contempt order herein.

It is the prevailing law of this state that a trial court has in rem jurisdiction in a marriage dissolution action to enter a final judgment or order awarding permanent or temporary alimony, child support, attorneys fees and costs against a respondent who had been properly served, as here, by constructive process. Burkhart v. Circuit Court of Eleventh Judicial Circuit, 146 Fla. 457, 1 So.2d 872, 874-875 (1941); Wood v. Wood, 276 So.2d 527, 528 (Fla. 3d DCA 1973); contra: Palmer v. Palmer, 353 So.2d 1271 (Fla. 1st DCA 1978). The trial court in such action may enforce such provisions of the final judgment in rem as against any property held by the respondent within the court’s jurisdiction; it may not, however, enforce such provisions in personam by contempt proceedings, as here, or by the entry of a money judgment against the respondent. Peacock v. Peacock, 160 Fla. 630, 36 So.2d 206 (1948); Newton v. Bryan, 142 Fla. 14, 194 So. 282 (1940); Wood v. Wood, 276 So.2d 527 (Fla. 3d DCA 1973).

It, therefore, follows that the above-discussed provisions of the final judgment herein were validly entered as the trial court had jurisdiction to do so by virtue of the properly perfected constructive service of process upon the husband. The in per-sonam contempt order, however, cannot be jurisdictionally supported by such process and is void unless, as contended, the trial court otherwise acquired in personam jurisdiction over the husband. The resolution of this latter issue depends, in turn, on whether the letter filed by the husband’s Israeli counsel, and later stricken by the trial court, constituted a general appearance of the husband sufficient to subject the husband personally to the jurisdiction of the trial court. The trial court so found; the husband contends otherwise. We agree with the husband.

It is undisputed that the letter in question was not signed by a member of the Florida Bar, or by a foreign attorney admitted pro hac vice, or by the husband as a party to this action. It could not, therefore, constitute an authorized pleading before the court under Fla.R.Civ.P. 1.030(a), (b) and was, for that reason, a nullity. Nicholson Supply Co. v. First Federal Savings & Loan Ass’n., 184 So.2d 438 (Fla. 2d DCA 1966). We are unaware of any authority [and the wife, as well as the dissent herein, had cited us to none] which allows a party to make a general or special appearance before a court in this state through a person who is not authorized generally or specially to practice law in Florida. We decline to be the first court to so hold as such a result would, in effect, condone the unauthorized practice of law prohibited by Fla.Bar Inter. Rule Art. II, § 2. Under the established law, a person may only make an appearance before a Florida court through a member of the Florida Bar or through an attorney specially admitted pro hac vice or in proper person, Fla.Bar Inter.Rule Art. II, § 2; Fla. Jur.2d “Actions” 316-317 (1977), and because the husband herein did none of the above, the trial court properly struck the above-filed letter as a nullity. The husband never had any standing before the trial court and, therefore, made no appearance in the cause, general or otherwise. As such, he did not submit himself personally to the jurisdiction of the court, and the contempt order is, therefore, void for lack of jurisdiction of the trial court to enter it.

Ill

The order denying the husband’s motion to vacate filed pursuant to Fla.R.Civ.P. 1.540 is reversed and the cause remanded to the trial court with directions to grant the motion as to all provisions of the final judgment except those provisions which dissolve the marriage between the parties, restore the wife’s maiden name, award child custody and child support to the wife and reserve jurisdiction for other matters including attorneys fees and costs. The order of contempt appealed from is reversed and the cause remanded to the trial court with directions to vacate such order.

Reversed and remanded.

SCHWARTZ, Judge

(dissenting in part, specially concurring in part).

I

I respectfully differ with the majority concerning the effect of the letter submitted by the Israeli lawyer on the husband’s behalf. The court quite rightly points out that the document, filed as it was by a person not admitted to the Florida Bar, was not a valid or judicially cognizable pleading. It has mechanically applied, however, this perfectly sound principle to effect a result directly contrary to the reason for and basis of the rule. The sole consequence of the filing of a paper by a non-lawyer is to deny it any legal effect favorable to the party who has “retained” him. See Liverpool & London & Globe Ins. Co. v. Duncan, 71 Fla. 59, 70 So. 933 (1916); Nicholson Supply Co. v. First Fed. Savings and Loan, 184 So.2d 438 (Fla. 2d DCA 1966). But there is no justification or precedential support for the awesome logical leap involved in the majority’s conclusion that because the letter thus gave the husband no standing affirmatively to pursue his own position, it therefore “did not [operate to] submit [him] to the jurisdiction of the court.” The one thing simply has nothing to do with the other.

As we said in Lawrence v. Lawrence, 130 So.2d 639, 640 (Fla. 3d DCA 1961):

[T]he defendant voluntarily submitted himself to the jurisdiction of the court if he took a step or asked for such relief as was consistent only with the hypothesis that the court has jurisdiction of the cause and of his person. See 14 Am.Jur., Courts § 192 [e. s.]

The plain fact is that Gelkop voluntarily chose to attempt to plead — and to win — his case in the Dade County Circuit Court, a step and a position obviously consistent only with a recognition of the court’s jurisdiction over him. It should make no difference, certainly not to the plaintiff-wife, that the person he selected to represent him in that endeavor was not a member of the Florida Bar. Cf. Rorick v. Stilwell, 101 Fla. 4, 133 So. 609, 615 (1931); Royal Industries, Inc. v. Birdsong, 340 So.2d 526 (Fla. 1st DCA 1976).

This conclusion is supported by analogous cases in other jurisdictions. Graves v. Nutting Truck & Caster Co., 76 Wis.2d 165, 251 N.W.2d 193 (1977) dealt with the effect of a letter written to the plaintiff’s lawyer by an officer of a defendant corporation which had been improperly served with process. The court concluded that, although it was neither a formal “answer” nor a legal “appearance,” the letter was sufficient indication that the corporation “deemed itself an active participant in the case” [e. s.], so as to constitute a waiver of the jurisdictional issue and subject the defendant to the in personam jurisdiction of the court. 251 N.W.2d at 195. See also Hansher v. Kaishian, 79 Wis.2d 374, 255 N.W.2d 564 (1977); Roland v. W & L Motor Lines, Inc., 32 N.C.App. 288, 231 S.E.2d 685 (1977); Germanese v. Champlin, 540 S.W.2d 109 (Mo.App.1976).

Perhaps even closer to our situation is Order of United Commercial Travelers of America v. Bell, 184 F. 298 (5th Cir. 1911). In that case, after the striking of a demurrer filed by the attorney for the corporate defendant which had been intended solely as a limited appearance to effect a removal to the federal court, a default judgment was entered against the corporation. It was argued that these actions had “deprived [the demurrer] of all effect as an appearance, so that . . . the [defendant] has no legal notice of the suit, and therefore the subsequently rendered judgment was without due process of law.” [e. s.] 184 F. at 300. In flatly rejecting this contention,, the fifth circuit held, as I would in this case, that the fact that the attempted pleading was ineffective for the purposes of preserving the defendant’s rights does not negate its effect as a submission to the jurisdiction of the court. At 184 F. 300, the court held

[The defendant’s] contention is not sound. The said attorneys appeared for the defendant, and they pleaded, and the subsequent action of the court in overruling, disregarding, or striking the plea did not obliterate the appearance. After these proceedings in the state court it would be absurd to hold that the defendant had no notice of the suit, and had not submitted the sufficiency of the plaintiff’s declaration to the arbitrament of the court.
In filing the alleged demurrer, the defendant may have acted under compulsion and in ignorance of its legal rights; but it had notice, and cannot complain in this court of want of due process of law, so as to give this court jurisdiction to enjoin the judgment of the state court subsequently rendered, [e. s.]

The majority’s decision on this point is in conflict with any number of a panoply of well-established rules which could be dismissed as mere legal clichés if they were not so clearly applicable to this issue and not so clearly violated by the court’s conclusion. For example, it might be said that the court has permitted a doctrine — that one may not be represented by a non-lawyer — which was meant merely to be used as a shield for his opponent, to be employed instead as the client’s own sword. To put it in other, perhaps hackneyed ways, Gelkop should not be permitted to benefit from his own wrong; he should not be heard to say, and should be “estopped” from saying, that the person he himself selected to forward his cause was not authorized to do so. Several cases — and there are none to the contrary — have specifically held that a client, typically a corporation, may not itself disavow the authority of a lay person to represent it. In, for example, Cohn v. Warschauer Sick Support Soc. Bnei Israel, 19 N.Y.S.2d 742, 743 (App.Div.1940) the court succinctly held:

Where the defendant appears and defends on the merits, it cannot move to set aside a judgment in favor of the plaintiff on the ground that it was not represented by attorney. Section 236 of the Civil Practice Act [which requires a corporation to appear by an attorney] is not intended to penalize the adverse party for the corporation’s improper appearance.

Similarly, it was stated in Jardine Estates v. Koppel, 24 N.J. 536, 133 A.2d 1, 3-4 (1957):

We have difficulty in subscribing to an interpretation of the rule which renders a judgment void, instead of merely voidable at the option of the opposing party, when a corporation illegally appears through its agent. There is no reason why the prevailing party should have to try the authority of the corporate representative as well as his own case. See Schifrin v. Chenille Mfg. Co., 117 F.2d 92 (2 Cir., 1941). . . .
In State v. Pontery, 19 N.J. 457, 471, 117 A.2d 473, 480 (1955), we held a party ‘cannot beseech and request the trial court to take a certain course of action, and upon adoption by the court, take his chance on the outcome of the trial, and if unfavorable, then condemn the very procedure he sought and urged, claiming it to be error and prejudicial.’ We cannot permit the plaintiff to profit from his own wrong.

Accord, Jefferson Park Realty Corp. v. Kelley Glover & Vale, 105 Ind.App. 313, 12 N.E.2d 977 (1938); Hecht v. Occhipinti Realty Co., 254 App.Div. 96, 3 N.Y.S.2d 953 (1938), aff’d 278 N.Y. 724, 17 N.E.2d 141 (1938). See generally, Annot., Propriety and Effect of Corporation’s Appearance Pro Se, Through Agent Who Is Not Attorney, 19 A.L.R.3d 1073, 1087-88 (1968).

II

Insofar as the court reverses the orders below, I concur in the result only as to the interests adjudicated in the parties’ real and personal property in Israel. Although I believe, as indicated supra, that the trial court acquired in personam jurisdiction over the husband as to these issues, I agree that the due process violation involved in entering judgment after default upon claims as to which he was not given fair notice in the pleadings rendered these provisions “void” within the meaning of Fla.R.Civ.P. 1.540(b)(4). In addition to the authorities cited by the court, see Aguchak v. Montgomery Ward Co., Inc., 520 P.2d 1352 (Alaska 1974); 11 Wright and Miller, Federal Practice and Procedure § 2862 (1973), and authorities cited at note 83.

In all other respects, I would affirm both orders under review.

      .The letter in its entirety reads as follows:
      March 24, 1978
      Richard P. Brinker, Esq.
      Clerk,
      Circuit and County Courts,
      General Jurisdiction Division,
      Room 135,
      Dade County Courthouse,
      73 West Flagler Street,,
      Miami, Florida 33130
      In re: The marriage of JACQUELINE ESTHER GELKOP, wife and DOV GELKOP, husband Action for Dissolution of Marriage Family Division
      Civil Action No. 78-2071 FC.
      On behalf of my client Mr. Dov Gelkop, I have to respond as follows:
      1. My client Dov Gelkop denies the jurisdiction of this Honorable Court to enter into the claim of Jacqueline Esther Gelkop for the following accumulative reasons:
      (a) The consorts lived together in Israel and the center of their life in Israel.
      (b) Their daughter Miriam Shulamit Gelkop was bom in Israel.
      (c) Mrs. Jacqueline Esther Gelkop fled from Israel without notifying her husband, having also taken with her the daughter Miriam Shulamit Gelkop.
      2. My client filed on July 29, 1976 a claim for divorce in File 14310/1976 at the Rabbinical District Court of Tel-Aviv-Yafe, which has the jurisdiction to enter into the claim for divorce between the consorts under reference.
      3. Further, Mrs. Jacqueline Gelkop and her daughter Shulamit Miriam Gelkop filed on September 12, 1976 a claim for alimony at the District Court of Tel-Aviv in Civil Status file 2899-76.
      4. There was also given on March 21, 1978 a judgment by the Honorable District Court of Tel-Aviv-Yafe in Civil Status File 880/77, under which Jacqueline Gelkop is ordered to deliver the daughter Shulamit Gelkop unto the custody of the father Dov Gelkop.
      5. Further, Mrs. Jacqueline Gelkop and her mother Mrs. Florence having filed in October 1977 a claim for against defendant Dov Gelkop for dissolution of communion in respect of their dwelling.
      6. Notarized documents proving the above facts are attached herewith.
      7. In view of all the aforesaid, you are kindly requested to reject the Plaintiffs claim, both from the factual and legal aspects.
      8. Should you require any further details and/or documents in respect of all the aforesaid, please write and I’ll furnish them by return of mail.
      9. Re substance of the matter — my client denies all facts specified in the statement of claim.

        Very truly yours,
      /s/ A. Molodic
      Arie Molodic, Adv.
      Attorney for Dov Gelkop
      Attached to the letter is a copy of what purports to be an Israeli trial court order awarding custody of the parties’ minor child to the husband in a pending Israeli child custody action.

      . We have no occasion to determine the impact of other provisions of the Uniform Child Custody Jurisdiction Act on the validity of this portion of the final judgment as same has not been raised by the husband at any stage of the proceedings herein either at the trial level or on appeal. See §§ 61.132, 61.1308, Fla.Stat. (1979).

      . The above-cited cases in the text arose upon a direct appeal and not in a Fla.R.Civ.P. 1.540 context. They are nonetheless very much in point because, as previously noted, a denial of due process notice to a litigant renders the underlying judgment void under Fla.R.Civ.P. 1.540. Osceola Farms Co. v. Sanchez, 238 So.2d 477, 480 (Fla. 4th DCA 1970); 7 Moore’s Federal Practice § 60.25(2), p. 309 (1979).

      . Fla.R.Civ.P. 1.030(a), (b) provides as follows:
      (a) Pleadings to be Signed by Attorney. Every pleading and other paper of a party represented by an attorney shall be signed by at least one attorney of record in his individual name whose address and telephone number (including area code) shall be stated and who shall be duly licensed to practice law in Florida. He may be required by order of court to vouch for his authority to represent and to give the address of such party. Except when otherwise specifically provided by these rules or an applicable statute, pleadings as such need not be verified or accompanied by affidavit. The signature of an attorney shall constitute a certificate by him that he has read the pleading or other paper; that to the best of his knowledge, information and belief there is good ground to support it and that it is not interposed for delay. If a pleading is not signed or is signed with intent to defeat the purpose of this rule, it may be stricken and the action may proceed as though the pleading or other paper had not been served.
      (b) Party not Represented by Attorney to Sign. A party who has no attorney but represents himself shall sign his pleading or other paper and state his address and telephone number (including area code).

      . Any subsequent order or judgment for attorneys fees and costs, for the reasons stated above, would only be enforceable against the husband in rem.

      . The court was not at all concerned with whether the corporate officer was an attorney. Cf. Nicholson v. First Federal Savings & Loan, supra.

      . The majority in this case has similarly treated the Israeli lawyer’s letter as a “nullity.” As in the Beil case, however, we should hold that it is a “nullity” for some, but not for all purposes.

      . See Belsky v. Belsky, 324 So.2d 111 (Fla. 3d DCA 1975), cert. denied, 336 So.2d 1180 (Fla.1976).

      . Kitchens v. Kitchens, 162 So.2d 539 (Fla. 3d DCA 1964); see Pearson v. Pearson, 213 So.2d 304 (Fla. 3d DCA 1968).


author: ERVIN, Judge.

text:
    The SCHOOL BOARD OF PINELLAS COUNTY, Florida, Petitioner, v. Walter B. NOBLE and the State Board of Education, State of Florida, Respondents.
    No. EE-160.
    District Court of Appeal of Florida, First District.
    April 11, 1980.
    B. Edwin Johnson, St. Petersburg, for petitioner.
    Gene T. Sellers, Tallahassee, John J. Chamblee, Jr. of the Law Offices of Richard H. Frank, Tampa, for respondents.
   ERVIN, Judge.

The School Board of Pinellas County appeals an order of the State Board of Education which discarded the county board’s order dismissing appellee Noble as a school teacher and accepted instead the recommendation of the Professional Practices Council (PPC) that Noble be reprimanded.

The county board asks whether a superior administrative agency has the power to substitute its judgment for that of an inferior agency when the latter’s decision is supported by competent and substantial evidence. It relies on cases relating to administrative review by the courts, Florida Real Estate Commission v. Webb, 367 So.2d 201 (Fla.1978); Carlton v. State of Florida, Division of Occupations, 354 So.2d 77 (Fla. 1st DCA 1978), and by the Career Service Commission, State Dept. of Pol. Con. v. State Career Serv. Com’n, 320 So.2d 846 (Fla. 1st DCA 1975); Florida A. & M. University v. Lewis, 327 So.2d 862 (Fla. 1st DCA 1976); Collins v. Florida Department of Offender Rehabilitation, 355 So.2d 131 (Fla. 1st DCA 1978); Woodworth v. Department of Education, 369 So.2d 1040 (Fla. 4th DCA 1979), holding that the employing agency has sole discretion to determine whether to suspend or dismiss an employee, subject only to just cause, while the reviewing tribunal’s function is limited only to determining whether there was competent and substantial evidence to sustain the agency action. We decline to answer the question raised and affirm the order of the state board because we find, due to the manner in which the proceedings were conducted, the county board had no authority to delegate its responsibility to the PPC, an appointive body of the state board, to conduct a discharge hearing on its behalf, which it either should have conducted, Section 231.36(6), Florida Statutes (1973), or, with the consent of all parties, requested a Division of Administrative Hearings (DOAH) officer to conduct.

After charges were filed against Noble alleging violations of the school code, the county board referred the discharge question to the PPC for a hearing. The PPC conducted the hearing, found that Noble violated Section 232.023, relating to falsification of attendance records, and Fla.Admin.Code Rule 6B-1.03(2)(b), pertaining to misrepresentation of facts in educational matters, but recommended only that Noble be reprimanded, not discharged. The county board then reviewed the record of the proceedings before the PPC, rejected the recommendation and ordered Noble discharged. This order in turn was rejected on appeal by the State Board of Education, which reinstated the PPC’s order of reprimand.

We find no authority permitting the PPC to conduct a discharge hearing on behalf of a county school board. Section 231.36(6) provides in part that “the school board shall hold a public hearing . to determine upon the evidence submitted whether the charges have been sustained and, if said charges are sustained, either to dismiss said employee or fix the terms under which said employee may be reinstated.” (e. s.) This statute is in effect a penal statute, as it imposes sanctions, including suspension or dismissal of an employee under continuing contract when he is found guilty of violating the statute’s proscriptions. Cf. Lester v. Dept. of Prof. and Occ. Regulations, 348 So.2d 923 (Fla. 1st DCA 1977). Consequently, the statute must be strictly construed, and, if there are any ambiguities within it, they must be construed in favor of the employee. Id.

The only statute permitting the PPC to conduct a hearing involving teacher misconduct is Section 231.57(6)(b), Florida Statutes (1973), allowing it to preside over a hearing of any apparent violation of the education codes and professional standards, to recommend to a county school board that a member of the profession be warned or reprimanded, or to make any recommendation which will promote an improvement of the teaching profession. The proceeding authorized by Section 231.57(6)(b), notwithstanding, is clearly not that countenanced by Section 231.36(6).

There is authority for a discharge hearing to be conducted by a DOAH officer rather than a county school board. However, because the administrative adjudicatory proceedings were begun before the effective date of the 1974 APA, a DOAH officer could not have done so without the parties’ consent. There was no consent; therefore, the proceedings could only have been conducted in accordance with the procedure provided in the 1973 APA. See Section 120.72, Florida Statutes (Supp.1974), and Chung-Ling Yu v. Criser, 330 So.2d 198 (Fla. 1st DCA 1976).

The 1973 Act does not allow the PPC to supervise a discharge hearing on behalf of the county board. Agency is defined by that Act as the “state officer who constitutes the agency authorized by law to adjudicate any party’s legal rights, duties, privileges or immunities.” Section 120.21(1). And, under the 1973 Act, only the agency, a member of the agency, or a hearing examiner supplied by the agency was authorized to preside over a hearing at which a party’s rights were determined. Sections 120.22 and .24. Nowhere, then, under either the 1973 Act or the 1974 Act, if it applied, is there authority for the PPC to conduct that type of hearing demanded by Section 231.36(6).

Assuming that the parties by their actions consented for the PPC to preside over the discharge hearing, and that Noble is now estopped to contend the contrary, there can hardly be any serious assertion that Noble consented for the board to aggravate the penalty recommended by the PPC. Although Noble never contested the recommendation, he did the board’s substituted penalty by appealing it to the state board.

Finally, there is no statutory authority permitting a county board to augment a recommended penalty of the PPC by simply reviewing the entire record and then concluding the findings of fact were not supported by competent, substantial evidence or they did not comply with the essential requirements of law. An agency’s only authority to enhance a recommended penalty is found in Section 120.57(l)(j), Florida Statutes (Supp.1974): It may increase a penalty in a recommended order after it has reviewed the entire record. The recommended order, however, may only be that of a hearing officer. See Section 120.57(l)(j). While Section 231.57 permits the PPC to make recommendations to the school boards, there is no comparable provision to that of Section 120.57 in the School Code allowing the school board to aggravate the PPC’s recommendation by merely reviewing the record.

The provisions of Section 120.57(l)(j) are clear: A county school board is authorized to inflict sanctions harsher than those proposed when the recommendation is made only by a hearing officer — not by some other person or body. And, if that board does not either request a DOAH officer to conduct a discharge hearing, or conduct one itself, it must-be considered bound by the PPC’s recommendation. As a result, the state board was free to accept the recommendation of the PPC rather than the substituted penalty of the county board.

AFFIRMED.

MILLS, C. J., and LARRY G. SMITH, J., concur.

      . The board’s order stated it had authority under Section 120.75(l)(j) (the order should have stated 120.57(1)0)) to reject or modify the conclusions of law in the recommended order after determining from a review of the complete record that the PPC’s findings were not supported by competent and substantial evidence or did not comply with the essential requirements of the law.

      . Now Section 120.57(l)(b)9, Florida Statutes (1979).


text:
    STAR SECURITY, INC., and Parliament Insurance Company, Appellants, v. Jay Allen WHITE and Mary Frances White, Appellees.
    No. 79-2167.
    District Court of Appeal of Florida, Third District.
    June 17, 1980.
    Jesse W. Miller, Hialeah, for appellants.
    Fuller & Feingold and Lawrence A. Fuller, Miami Beach, for appellees.

      Before BARKDULL, HUBBART and BASKIN, JJ.
   PER CURIAM.

Affirmed. Buie v. Barnett First National Bank of Jacksonville, 266 So.2d 657 (Fla.1972); Dr. P. Phillips & Sons, Inc. v. Kilgore, 152 Fla. 578, 12 So.2d 465 (1943); Mills v. Cone Brothers Contracting Co., 265 So.2d 739 (Fla.2d DCA 1972); Associated Heavy Equipment Schools, Inc. v. Masiello, 219 So.2d 465 (Fla.3d DCA 1969); and Doral Country Club, Inc. v. Lindgren Plumbing Co., 175 So.2d 570 (Fla.3d DCA 1965).


author: NESBITT, Judge.

text:
    Margo Lynn SOLLY, Appellant, v. Robert Stephen SOLLY, Appellee.
    No. 79-1608.
    District Court of Appeal of Florida, Third District.
    May 20, 1980.
    Rehearing Denied June 16, 1980.
    Lawrence C. Rice, South Miami, for appellant.
    Bernard Braverman, Miami, for appellee.
    Before HAVERFIELD, C. J., and SCHWARTZ and NESBITT, JJ.
   NESBITT, Judge.

The issue before us is whether the trial court applied the correct standard in determining the mother’s fitness on the issue of awarding child custody. We find that it did not and reverse.

The parties appeared with counsel at a final hearing in a contested dissolution with an unexecuted property settlement agreement in which it was proposed that custody of the minor children: a boy, seven, and a girl, two, be awarded to the mother. The mother had refused to execute the property settlement agreement because she considered the support features inadequate. The parties did not make child custody an evidentiary issue. The father’s angry epithet regarding the mother’s adulterous conduct prompted interrogation by the trial court into the mother’s alleged misconduct. Upon questions asked by the trial judge, the wife admitted that she had committed adultery some six years earlier, following which she resumed cohabitation with the father. The mother admitted to one more recent act of adultery. The trial court then determined that such conduct rendered the mother unfit as a custodial parent. It was apparent, however, from evidence that neither act had been committed in the presence of the children. There was no testimony that her misconduct had affected the children in any manner.

Prior to the adoption of no fault dissolution of marriage, it was the established rule that misconduct of the wife, while grounds for divorce, was not necessarily the criterion to be followed in determining her fitness as a mother to have custody of her children. McAnespie v. McAnespie, 200 So.2d 606 (Fla.2d DCA 1967).

In Dinkel v. Dinkel, 322 So.2d 22 (Fla.1975), our Supreme Court readdressed this issue following the adoption of no fault dissolution of marriage, stating that:

Adultery may or may not have a direct bearing on the welfare of a child of tender years. Engaging in sexual intercourse with someone other than one’s spouse in the same household where the subject child is present does not necessarily affect the child’s welfare. Whether the adultery has a direct bearing on the welfare of the child is a question for the trier of fact. Where the trier of fact determines that the spouse’s adultery does not have any bearing on the welfare of the child, the act of adultery should not be taken into consideration in reaching the question of custody of the child.
Where the trier of fact reaches the conclusion that the adulterous conduct adversely affects the child, the scales are tipped against the award of custody to the adulterous spouse. Even if the trier of fact determines that the spouse’s adultery has an adverse effect on the child, other factors, i. e., cruelty neglect, parental unfitness, exhibited by the other spouse, may be present to tip the scales back in favor of the award of custody to the adulterous spouse. In the latter event, it may be that the best interest of the child would be served by awarding custody to a third party.
While Fla.Stat. § 61.13(2), F.S.A., provides for equal consideration of the spouses in the award of custody, it is still the law in this State that, other essential factors being equal, the mother of the infant of tender years should receive prime consideration for custody.

322 So.2d at 23-24.

Since there was no evidence that the mother’s misconduct had any bearing on the welfare of the minor children, the occasional acts of adultery standing alone should not have been considered by the trial court. Dinkel v. Dinkel, supra.

The evidence presented indicated that the father had abused the boy on one occasion. The trial court ordered the Division of Family Services to investigate the fitness of the parents with the express view that permanent custody of the children would be awarded after a further evidentia-ry hearing. Nonetheless, in the final judgment of dissolution, the court awarded permanent custody of the minors to the father.

The trial court, having failed to apply the correct standard for determining the mother’s fitness for child custody and having evinced its intent to conduct a further evi-dentiary hearing on that matter, requires this court to reverse that portion of the final judgment which awarded custody of the minors to the father and to remand the cause for a full evidentiary hearing on the question of permanent custody of the children.

Reversal of the custody award necessarily requires reversal of that portion of the judgment requiring the mother to pay child support to the father. That portion of the final judgment of dissolution pertaining to the custody of the children and child support is reversed and remanded for further proceedings.

      . Ch. 61, Fla.Stat. (1979).

      . The effect of reversal will be to reinstate the temporary order entered February 14, 1979 awarding temporary custody of the minors to the mother.