author:
ERVIN, Judge.
      BOOTH, Judge,

text:
    SPECIAL DISABILITY TRUST FUND, Appellant/Cross-Appellee, v. KEMP & GUEST ROOFING AND RISK MANAGEMENT SERVICES, INC., and L. J. Burks, Appellee/Cross-Appellant.
    No. QQ-132.
    District Court of Appeal of Florida, First District.
    Jan. 22, 1980.

      Claire D. Gentry and G. W. Jacobs, Tallahassee, for appellant/cross-appellee.
    H. George Kagan and H. Jack Miller of Miller & Hodges, Coral Gables, Richard A. Sadow of Sadow & Lynne, North Miami, for appellee/cross-appellant.
   ERVIN, Judge.

The appellant, Special Disability Trust Fund, filed motions to be joined, to dismiss the appellees’ joint petition and stipulation under Section 440.20(10), Florida Statutes (1975), and for attorneys’ fees and costs before the Judge of Industrial Claims (JIC). After a hearing, the judge denied the motions for attorneys’ fees and costs and to dismiss. The following day, the judge entered an order in accordance with the appel-lees’ joint petition. The Fund’s motion for relief from judgment was denied, and it appealed.

Here, the Fund is in the contradictory position of having moved and consented to be joined in the joint petition proceedings only to seek dismissal of the same proceedings on grounds that it is an “interested party” whose objection to the petition divested the JIC of jurisdiction to enter the joint petition order. We do not agree that Special Disability Trust Fund v. Tropicana Products, Inc., 358 So.2d 1 (Fla.1978) places the jurisdiction of the judges of industrial claims at the whim of the Fund. In Tropicana Products, Inc., supra, the court reviewed the judge of industrial claim’s denial of the Fund’s motion for joinder in the settlement proceedings, and held that “the Fund may have a right to intervene in workmen’s compensation lump sum settlement proceedings when the employer or carrier is seeking Fund reimbursement .358 So.2d at 2. There is nothing in Tropicana which implies that the JIC is divested of jurisdiction from entering a final order which might conceivably in the future affect the Fund because the Fund declines to participate in the proceedings once it is properly joined.

At the hearing on the motions to be joined and to dismiss in this case, the Fund stated alternatively that it objected to the wash-out and that it refused to join in the joint petition. When it was clear no explanation for the refusal or objection would be forthcoming and the Fund was simply asserting its power to halt the joint petition proceedings at will, the judge denied the motions to dismiss and for attorney’s fees. The judge did not err in entering the joint petition order after giving the Fund a chance to be heard on the propriety of the wash-out.

While we affirm the joint petition order, we note that the Fund is not bound by any findings in the order or agreements in the stipulation since “no findings of fact made with respect to the claim of the injured employee or [his] dependents for compensation, including any finding made or order entered pursuant to Section 440.20(10) shall be res judicata.” This provision was added to Section 440.49(4)(g) by Chapter 74-197, § 21, Laws of Florida, in an apparent response to Special Disability Trust Fund v. Fleet Transport Co., 283 So.2d 31, 33 (Fla.1973), which stated that where a payment of compensation is made on the basis of joint stipulations for a lump sum, the payment would “be considered the proper and reasonable compensation due to the claimant for the purpose of determining what reimbursement from the Fund, if any, it is due.” The effect of the amendment to the statute is clear: A compensation order does not bind the Fund in any later action by the employer seeking reimbursement for amounts paid by it for more than the threshold limits required in Section 440.49. Special Disability Trust Fund v. Tropicana Products, Inc., supra, does not state the contrary. The limited holding in Tropicana was simply that the Fund has a right to intervene in a Section 440.20(10) application when the employer seeks Fund reimbursement for part of the payments involved.

The result is an anomaly. While the Fund has the right to intervene in lump sum settlement proceedings, the order entered in such proceeding does not bar the Fund from relitigating the same issues on a later claim filed by the employer for reimbursement. There is no reason why a statute could not be drafted in which all issues could be appropriately resolved in one proceeding. Nor is there any reason why the employer should not be aware at the time it seeks a lump sum order whether the sum jointly agreed upon between it and the employee would entitle it to reimbursement under Section 440.49(4)(g). The procedure established is obviously costly and inefficient, but nevertheless one which the legislature in its wisdom should address.

Finding further that the order was based on competent, substantial evidence, it is AFFIRMED.

ROBERT SMITH, J., concurs.

BOOTH, J., concurring in part, dissenting in part.

BOOTH, Judge,

concurring in part, dissenting in part.

I dissent from this court’s retention of jurisdiction in the cause for the reasons stated in the dissenting opinion in Crews v. Town of Bay Harbour Islands, 378 So.2d 1265 (Fla.1st DCA 1979).

On the merits, I concur in the reasoning and the result of the decision affirming the order below.

      . That section states, in part, that “[u]pon the application of any party in interest and after . due consideration to the interests of all interested parties, if a judge of industrial claims finds that it is for the best interests of the person entitled to compensation, said judge of industrial claims may enter a compensation order requiring that the liability of the employer .. . shall be discharged by the payment of a lump sum . . .

      . The following exchange is illustrative:
      THE JUDGE: You are saying that in your motion, as an interested party, you object to said petition?
      MRS. GENTRY: Yes.
      THE JUDGE: Can you tell me why?
      MRS. GENTRY: I can tell you why but really the merits of our objection is not what is being decided today.
      The sole issue is that we are an interested party and we object to the washout, so the washout should not go through on that basis.
      THE JUDGE: You are saying that you have veto power, without stating any reasons to the Judge as to why you are objecting.
      MRS. GENTRY: Yes, sir.
      The foregoing clearly shows that another point of the Fund’s on appeal, relating to the JIC failing to rule on its motion to be joined, is without merit. It is clear the JIC considered the Fund an interested party and that it refused to raise any substantive issues once it was accepted as such.


source: Caselaw Access Project

author: PER CURIAM. BOOTH, Judge,

license: Public Domain

text:
    EVERGLADES HOTEL, Appellant, v. Arcadio MARIN, Appellee.
    No. QQ-157.
    District Court of Appeal of Florida, First District.
    Jan. 23, 1980.
    George Á. O’Brien, Miami Shores, for appellant.
    R. Cory Schnepper of Ser, DeCardenas, Levine, Busch & Allen, P. A., Miami, for appellee.
   PER CURIAM.

AFFIRMED.

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

BOOTH, J., dissents with opinion.

BOOTH, Judge,

dissenting.

I dissent from this court’s retention of jurisdiction in this case, which arose outside the territorial jurisdiction of the court. See Crews v. Town of Bay Harbor, 378 So.2d 1265 (Fla. 1st DCA 1979).

On the merits, I would concur in the majority’s opinion.


author: HENDRY, Judge.

text:
    RIC-REC, INC., Appellant, v. CAPRI GARDENS CONDOMINIUM, INC., Appellee.
    No. 79-474.
    District Court of Appeal of Florida, Third District.
    Jan. 29, 1980.
    Shorenstein & Lewis, Sibley, Giblin, Le-venson & Glaser and Marion E. Sibley, Miami Beach, for appellant.
    Pilafian & Schaffer and Melvin Schaffer, Miami, for appellee.
    Before HENDRY, HUBBART and SCHWARTZ, JJ.
   HENDRY, Judge.

Ric-Rec, Inc., appellant/defendant, seeks review of the trial court’s order of summary judgment which declared that Ric-Rec, Inc. be prohibited from increasing or escalating the recreational rental payments for the balance of the term of the recreational lease between the parties. Appellant submits, inter alia, that the record in the cause does not support a summary judgment in favor of the appellee/plaintiff on the basis that the evidence contained therein is susceptible of conflicting inferences; we agree. Titan Agencies, Inc. v. S. Kornreich & Sons, Inc., 355 So.2d 457 (Fla. 3d DCA 1978); Warren v. Bill Ray Construction Co., Inc., 269 So.2d 25 (Fla. 3d DCA 1972); Liberty Mutual Insurance Company v. Stuckey, 220 So.2d 421 (Fla. 4th DCA 1969).

Reversed and remanded with directions to, vacate the order of summary judgment and to proceed with the cause.

Reversed and remanded.


author: NESBITT, Judge.

text:
    Leon Stanley FIELDS, Appellant, v. The STATE of Florida, Appellee.
    No. 79-858.
    District Court of Appeal of Florida, Third District.
    Jan. 29, 1980.

      Mark J. Friedman, Miami Beach, for appellant.
    Jim Smith, Atty. Gen. and James H. Greason, Asst. Atty. Gen., and Clifford M. Miller, Legal Intern, for appellee.
    Before BARKDULL, HUBBART and NESBITT, JJ.
   NESBITT, Judge.

Defendant appeals his conviction for: (1) lewd and lascivious assault upon a child under the age of fourteen as denounced by Section 800.04, Florida Statutes (1977); and (2) child abuse as condemned by Section 827.04, Florida Statutes (1977).

He contends that the trial court erred by denying his motion for discovery of psychiatric records of the minor female victim. The motion was filed on March 5, 1979. A hearing on the motion was held on March 13, 1979, just prior to the commencement of the trial. At the hearing, the defense brought to the court’s attention the possible existence of such records. The defendant knew of the existence of the material prior to trial but did not seek an order requiring the state to furnish the information, nor did he seek a motion for continuance following the denial of his request. In light of the above, we agree with the trial court that the request came too late. Cooper v. State, 356 So.2d 911 (Fla. 3d DCA 1978); Yanetta v. State, 320 So.2d 23 (Fla. 3d DCA 1975); Wilcox v. State, 299 So.2d 48 (Fla. 3d DCA 1974).

Interrelated to the defendant’s challenge to the denial of discovery of the victim’s psychiatric records is a further contention that the trial court unduly restricted cross-examination of the minor female victim as to whether she had in fact been so evaluated. Appellant contends the trial court erred in sustaining an objection to this proffered question based upon Hawkins v. State, 326 So.2d 229 (Fla. 2d DCA 1976) and United States v. Partin, 493 F.2d 750 (5th Cir. 1974). Those cases permit the testimony of an analyst or other expert to show that due to emotional or psychiatric disturbance the truth and veracity of an important witness is questionable. Consequently, absent a proffer that the defendant would call the expert to render such testimony, the question as put to the minor victim was irrelevant and inadmissible and the objection was properly sustained. Roberts v. State, 94 Fla. 149, 113 So. 726 (1927); Mitchell v. State, 321 So.2d 108 (Fla. 1st DCA 1975).

Defendant also contends that the trial court erred in denying separate motions for mistrial and for a new trial due to the admission of collateral crimes contrary to the rule in Williams v. State, 110 So.2d 654 (Fla.1959). In order to focus upon this contention, it is important to observe that defendant had previously been charged with committing essentially the same crimes against the same victim for a period commencing as early as January 1974 or since the child was approximately ten years of age. This 1977 information was subsequently nol-prossed due to the disappearance of the victim. The information upon which the state proceeded had been filed in January 1979 and additionally charged the defendant with tampering with the witness in violation of Section 918.14, Florida Statutes (1977). In order to prevent a possible violation of the Williams rule, the alert trial judge wisely severed this issue for trial.

In his next point on appeal, defendant maintains that the fragments of evidence, both separately and collectively, formed a mosaic which telegraphed to the jury the commission of collateral crimes. The first such statement, of those preserved for appeal, came from one of the state’s witnesses who testified that he had seen the victim during a “hearing” and at an “arraignment.” The second is from a friend and roommate of the defendant’s daughter who was called to testify concerning defendant’s relationship with the victim wherein he made an ill-advised response to a question stating: “Well, the state had a case . . . ” The court sustained a prompt objection before the witness could further answer. The third fragment in the mosaic was the testimony of the minor victim who stated that the defendant was going to purchase a ticket for her and her friend so that they could spend time up north “until after the court was over.”

Considered separately or cumulatively, these vague and ambiguous statements were not so prejudicial as to warrant a mistrial. The plain implication to a jury, if any, was in reference to the defendant’s then present plight rather than his former prosecution. The trial court properly denied the motion for mistrial. Sykes v. State, 329 So.2d 356 (Fla. 1st DCA 1976); Flowers v. State, 351 So.2d 764 (Fla. 3d DCA 1977).

The other testimony tending to show commission of a collateral criminal activity by the defendant was that of the minor female victim who stated that she had spoken to the defendant’s daughter in a foster home at one point “right after her father had got out of jail.” No objection to this statement was made; therefore, the matter was not preserved for appeal. Castor v. State, 365 So.2d 701 (Fla.1978). Further, no motion for mistrial was made. Clark v. State, 363 So.2d 331 (Fla.1978). The final piece in this mosaic of evidence complained of by the defendant was the testimony of the minor female victim that she commenced having sexual relations with the defendant at the age of ten. A timely objection was promptly sustained following which the court gave a curative instruction with respect to both of the above statements of the prosecutrix which was sufficient to remedy the situation. Romero v. State, 341 So.2d 263 (Fla. 3d DCA 1977); Mabery v. State, 303 So.2d 369 (Fla. 3d DCA 1974). The cumulative effect of all of the statements has been considered and we find no real or substantial prejudice to the defendant. However, any prejudice which might have inured to the defendant’s detriment was overcome by his testimony and admission to having had sexual relations with the minor victim. Consequently, followed by the defendant’s testimony, the victim’s latter statement was merely cumulative and constituted harmless error. § 924.33, Fla.Stat. (1977). With this revelation by the defendant, his guilt became evident rendering evidence of other crimes harmless. Hamilton v. State, 356 So.2d 30 (Fla. 3d DCA 1978); Taylor v. State, 289 So.2d 421 (Fla. 3d DCA 1974).

For the foregoing reasons, the judgment of conviction is affirmed.

      . In practice, the problem is compounded by the question as to whether the analyst’s or other expert’s testimony is privileged. See §§ 90.242, 827.07(11), Fla.Stat. (1977).


author: SCHWARTZ, Judge.

text:
    Allan N. FIELDS, Appellant, v. Stephen J. GOLDSTEIN and Gulf Insurance Co., Appellees.
    No. 79-903.
    District Court of Appeal of Florida, Third District.
    Jan. 29, 1980.

      Bradford, Williams, McKay, Kimbrell, Hamann, Jennings & Kniskern and Patricia H. Thompson, Miami, for appellant.
    Carey, Dwyer, Cole, Selwood & Bernard and Steven R. Berger, Miami, for appellees.
    Before HENDRY, BARKDULL and SCHWARTZ, JJ.
   SCHWARTZ, Judge.

In an action for malicious prosecution, the lower court entered summary judgment for the defendant Goldstein, an attorney who had filed a malpractice claim on behalf of a client against the plaintiff-appellant, an osteopathic physician. We do not decide whether such a case can ever be successfully maintained, because the record demonstrates conclusively that there was neither a want of probable cause nor malice in Gold-stein’s pursuit of the original proceeding against the appellant. See City of Pensacola v. Owens, 369 So.2d 328 (Fla.1979); Ammerman v. Newman, 384 A.2d 637 (D.C.1978); Carroll v. Kalar, 112 Ariz. 595, 545 P.2d 411 (1976); Spencer v. Burglass, 337 So.2d 596 (La.App.1976), writ denied, 340 So.2d 990 (La.1977); Tool Research and Engineering Corp. v. Henigson, 46 Cal.App.3d 675, 120 Cal.Rptr. 291 (1975).

Affirmed.

      . See. e. g., Brody v. Ruby, 267 N.W.2d 902 (Iowa 1978); Berlin v. Nathan, 64 Ill.App.3d 940, 21 Ill.Dec. 682, 381 N.E.2d 1367 (1978).


author: PEARSON, Judge.

text:
    Michael PATASNIK, a/k/a Mike Patasnik, t/a Sun Cleaners, f/t/a Sunset Cleaners, Appellant, v. David MERMELSTEIN, Appellee.
    No. 79-1820.
    District Court of Appeal of Florida, Third District.
    Jan. 29, 1980.
    Goodman, Dunberg & Hochman and Alan R. Hochman, Miami, for appellant.

      Friedman, Britton, Cohen, Kaufman, Zin-kow, Benson & Schantz and Joseph I. Davis, Jr., Miami, for appellee.
    Before PEARSON, HENDRY and BARKDULL, JJ.
   PEARSON, Judge.

The defendant Michael Patasnik brings this interlocutory appeal from an order which denied his motion made pursuant to Florida Rule of Civil Procedure 1.540. The ground of the motion was that he was not served with process in the suit.

The case proceeded as follows: 1. The complaint for collection of a debt alleged that “[a]t the time of the execution of the subject notes referred to below, Defendant was a resident of Dade County, Florida-, was sui juris, and as of the date of the filing of this Complaint, Plaintiff has no information to the contrary.” 2. A summons was issued and returned unserved with the sheriff’s return stating: “NO SERVICE: For the reason that after diligent search and inquiry failed to find said Michael Patasnik in Dade County, Florida. NOTE: Unable to contact defendant after several attempts at various hours.” 3. Without further pleading, the plaintiff secured the issuance of alias summons directed to the Secretary of State, as statutory agent. 4. The plaintiff filed an affidavit of compliance with “the provisions of Florida Statutes 48.161.” 5. The plaintiff moved for and secured a default. 6. On February 22, 1979, a final judgment was entered for the plaintiff. 7. On May 21, 1979, the defendant filed a motion for relief from final judgment and an affidavit which alleged only that “[a]t all times material to this action, the Affiant was a resident of the State of Florida.” 8. The plaintiff filed an extensive affidavit which set forth his unsuccessful efforts to contact the defendant and his conclusion that the defendant was concealing himself despite the fact that he was a resident of the State of Florida. 9. The trial judge denied the motion.

The order appealed must be reversed because the pleadings on file at the time of the issuance of process to be served upon the Secretary of State did not contain an allegation of facts which could be a basis for the use of constructive service of process on the defendant. See the principle in Young Spring & Wire Corp. v. Smith, 176 So.2d 903 (Fla.1965); and Unterman v. Brown, 169 So.2d 522 (Fla.2d DCA 1964).

The late filing of an affidavit after the service of process and the final judgment cannot give life to an invalid process.

Reversed and remanded with directions to vacate the final judgment.

      . Although made a point on appeal, we do not express an opinion on the sufficiency of this affidavit because it is not necessary for a decision on this appeal.


author: MOORE, Judge.

text:
    FEE, PARKER & LLOYD, P. A. and Otis R. Parker, Jr., Appellants, v. John B. SULLIVAN, M. D. and James I. Terry et al., Appellees.
    No. 77-1499.
    District Court of Appeal of Florida, Fourth District.
    Jan. 30, 1980.

      Larry Klein and Adams, Sullivan, Coo-gler, Watson & Smith, and Stephen C. Mc-Aliley of Brennan, MeAliley, Albury & Hays-kar, West Palm Beach, for appellants.
    Ellis S. Rubin, Miami, for appellee, John B. Sullivan, M. D.
   MOORE, Judge.

This is an appeal and cross-appeal from a final judgment entered after a jury verdict in a malicious prosecution action. The action was brought by John Sullivan, a medical doctor, against his former patient, James Terry, and the patient’s lawyers, the firm of Fee, Parker and Lloyd, P. A., and Otis Parker, individually. Dr. Sullivan alleged that Terry and Parker had maliciously prosecuted a medical malpractice action against him for his treatment of Terry. That medical malpractice action was voluntarily dismissed prior to trial. The essence of Dr. Sullivan’s complaint here was that Terry and Parker did not have probable cause to sue him for medical malpractice.

The jury returned a verdict in favor of Sullivan in the amount of $175,000 against Parker and his law firm and found Terry not liable. After the trial court ordered a remittitur in the amount of $100,000, final judgment was entered for Sullivan for $75,-000 plus costs against Parker and his firm. They appeal and Sullivan cross-appeals.

Appellants contend the proof was insufficient to establish the elements of a malicious prosecution action. They argue that Sullivan was required to prove that appellants lacked probable cause for commencing the malpractice action and failed to do so. Agreeing with this contention, we reverse and find it unnecessary to address Sullivan’s cross-appeal.

The Florida Constitution provides: § 21 Access to Courts — The courts shall be open to every person for redress' of any injury, and justice shall be administered without sale, denial or delay.

Art. I, § 21, Fla.Const.

Our concept of justice and the system which we have created for its administration necessarily dictates a public policy which encourages the settlement of private disputes through access to the courts. Such access, however, is not without limitation. When the court is used to promote an unjustifiable cause, an injustice is perpetrated upon one’s adversary whose only recourse is, again, in court through the tort of malicious prosecution. Thus, one who maliciously sues another without probable cause is subjected to answering for his own wrong.

A lawyer must represent his client zealously within the bounds of the law and professional ethics. As an advocate he must accept the facts as he finds them and render his advise consistent with those facts and his knowledge of the law. He is therefore charged with making a reasonable investigation in determining the facts before initiating a suit on his client’s behalf. If he then has a reasonable, honest belief that his client has a tenable claim, he enjoys the same freedom of access to the court as does his client. Any more stringent standard would effectively stifle the peaceful resolution of disputes and deny the very justice the courts are intended to administer.

It is well settled in Florida that an action for malicious prosecution lies where there is a concurrence of the following elements: (1) the commencement or continuation of an original civil or criminal judicial proceeding; (2) its legal causation by the present defendant against the plaintiff; (3) its bona fide termination in favor of the plaintiff; (4) the absence of probable cause for such prosecution; (5) the presence of malice; and (6) damages conforming to legal standards resulting to the plaintiff. Duval Jewelry Co. v. Smith, 102 Fla. 717, 136 So. 878 (1931); Tatum Brothers Real Estate and Investment Co. v. Watson, 92 Fla. 278, 109 So. 623 (1926); Burchell v. Bechert, 356 So.2d 377 (Fla. 4th DCA 1978).

With these principles in mind, we turn now to the facts available to appellants at the time suit was filed against Dr. Sullivan in the malpractice action.

Mr. Terry suffered a Monteggia fracture of the forearm, consisting of a fracture of the ulna and a dislocation of the head of the radius. Terry went to Dr. Sullivan, an orthopedic surgeon, who performed a closed reduction (the manipulation of the bones back into place) and placed a cast on the arm on June 23, 1970. Although X-rays were taken of the arm immediately after this procedure, no subsequent X-rays were taken until August 13, at which time Dr. Sullivan discovered that the closed reduction was unsuccessful. He then performed an open reduction on August 17 and surgically inserted an intramedullary rod into the bone to stabilize the fracture. The patient’s wrist was not involved and Dr. Sullivan did not intend to insert the pin into the wrist. The pin insertion was performed without the use of an X-ray machine. X-rays are normally taken prior to closing the incision to insure that the rod does not extend too far. X-rays were taken the day after the surgery and Dr. Sullivan discovered the rod was IV2 inches too long and extended into the wrist. Despite this discovery, nothing was done for about six weeks. Thereafter, Dr. Sullivan performed a second operation to shorten the rod. After this procedure, and with his arm still in pain and with no apparent healing of the fracture, Terry went to Dr. Stalker, another orthopedic surgeon. After initially consulting with this doctor and being advised that further treatment was necessary, Mr. Terry consulted with Mr. Fee, an associate of Mr.

Parker, for advice regarding his will and his medical treatment by Dr. Sullivan.

During this conference, Terry reiterated the above sequence of events and produced the X-rays and other pertinent records. Although he did not express an interest at that time in bringing a malpractice action against Dr. Sullivan, he did indicate he wanted to recover for the expenses incurred as a result of the hospitalizations and surgical procedures. Fee relayed this information to Parker who examined the X-rays which showed the rod extending into the wrist area, and reviewed the hospital records which indicated that no X-rays of Terry’s arm had been taken until the day after the open reduction.

After consulting with his attorney, Mr. Terry returned to Dr. Stalker, who performed a third surgical procedure resulting in a successful bone graft. It was after this surgery that Parker consulted with Dr. Stalker regarding Sullivan’s prior treatment of Terry. The statements made at this conference are in conflict. Stalker denied at trial that he expressly told Parker that Sullivan’s treatment fell below the standard of care for the community; however, as a result of the conference and all other evidence, Parker was clearly of that opinion. When asked if Dr. Stalker told him Dr. Sullivan had done something wrong, Parker responded, “I’m sure he did.” Mr. Fee, a witness to the conference, testified that when Parker told Stalker that Terry felt the treatment he received from Sullivan was below standard, Stalker replied, “I tend to agree.”

In his trial testimony, Dr. Stalker admitted he told Parker it was unusual for a rod to protrude into the wrist area, although he did not specifically mention the word “malpractice”. He also admitted he informed Parker that a physician should X-ray the patient’s arm before closing the incision when inserting a rod to stabilize the fracture. Stalker further stated that the performing of a closed reduction on June 23 with no X-ray from that date (except for the one immediately after the reduction) until August 13, 1970, would fall below the normal standard of care. The recommended procedure when such a closed reduction is performed is to take serial X-rays after the reduction in order to see if the fracture remains stabilized.

After conferring with Dr. Stalker, Mr. Parker researched the law which correctly indicated to him that expert medical testimony is not always required to establish medical malpractice.

Mr. Parker then advised Dr. Sullivan by correspondence of his client’s claim. Parker received no answer from Dr. Sullivan, but his correspondence prompted settlement negotiations with representatives of Dr. Sullivan’s malpractice insurance carrier. The insurance carrier felt the claim had merit, but could not settle it without Dr. Sullivan’s permission, which was refused.

Thereafter, on Mr. Terry’s approval, suit was instituted on July 8, 1971. The case was never tried. At Terry’s request, it was voluntarily dismissed immediately prior to trial. Dr. Sullivan subsequently filed the present malicious prosecution action.

Obviously, Mr. Parker did not know what Dr. Sullivan’s trial testimony would be at the time the malpractice suit was filed, but that testimony confirms the information which was within the knowledge of Mr. Parker and Mr. Terry when suit was instituted. This testimony also bears directly on the overall insufficiency of plaintiff’s evidence as presented in the plaintiff’s case. See Pickard v. Maritime Holdings Corporation, 161 So.2d 239 (Fla. 3rd DCA 1964).

With respect to inserting the rod into the wrist area, Dr. Sullivan testified on direct examination as follows:

QUESTION: Getting into 1970, and Mr. Terry, did you put the rod in too long?
ANSWER: Yes, I did.
QUESTION: Why?
ANSWER: Because at that point in time there was no X-ray available to take and check the length of that rod, which was my usual practice; .
QUESTION: Doctor, is there any reason why you didn’t take an X-ray, if you say that that was your usual procedure?
ANSWER: I would have been happy to take an X-ray if the machine was there; I wouldn’t be here today.
QUESTION: Why wasn’t the machine there?
ANSWER: The hospital “goofed”.
QUESTION: How?
ANSWER: They didn’t have the machine there; that was their responsibility.
* * * * * *
QUESTION: Is it standard practice to take X-ray?
ANSWER: Yes, it is; it’s my practice to take X-ray.
# * * # * if:
QUESTION: Did the fact that the rod was an inch too long, did this cause you to bring Mr. Terry back into the hospital for a second procedure to shorten it?
ANSWER: Yes. Again I was faced with a dilemma.
QUESTION: What was the dilemma?
ANSWER: I had to put the rod in too long, because there wasn’t X-ray available; so I did what I did and I also was compelled, because of the fact that it was an inch too long, to back it out, because apparently in my judgment it was causing Mr. Terry some difficulty; so I had to back it out.

On cross examination, Dr. Sullivan testified:

QUESTION: And did you select the rod to proper length?
ANSWER: No, I didn’t.
QUESTION: Why not?
ANSWER: I was wrong that day.
QUESTION: What do you mean?
ANSWER: Just what I said.
QUESTION: Selected a rod of improper length?
ANSWER: That’s correct.
* * * * * *
QUESTION: Was the rod the same length as the ulna in the other arm? ANSWER: I measured wrong.
QUESTION: Why do you say you were wrong?
ANSWER: The rod was too long.
QUESTION: Which means that you didn’t measure it or you measured it incorrectly.
ANSWER: I measured it incorrectly, obviously.
QUESTION: Is it important—
ANSWER: I wouldn’t put it in intentionally too long; that’s for sure.
QUESTION: Is it important to the patient that the rod be measured correctly?
ANSWER: Yes; and I’m usually right. I’m very good at my work.

Also on cross examination, Dr. Sullivan testified with respect to the failure of the hospital to provide an X-ray machine in the operating room:

QUESTION: Is there anything in the operative note that says, ‘Called for X-ray. Not available.’
ANSWER: No, I didn’t say that.
QUESTION: Is there anything in the entire hospital record that says that?
ANSWER: No, not that I am aware of.
QUESTION: So, if Mr. Parker read the hospital records, he wouldn’t get it from that, would he?
ANSWER: No that’s a damaging statement. We try to avoid those things in the record.

Then, with respect to Mr. Terry’s damages, Dr. Sullivan testified:

QUESTION: But he had another surgery that he shouldn’t have had to have, didn’t he?
ANSWER: That’s the way it goes in this business.
******
QUESTION: Since you feel he should have that reaction, did you charge him for that second admission?
ANSWER: Certainly.

It is interesting to note that Dr. Sullivan solicited contributions from members of the medical profession for instituting this and other malicious prosecution cases. Two of the contributors were Dr. Stalker and Dr. Peacock, an orthopedic surgeon who testified on behalf of the defense. In addition to his expert testimony, Dr. Peacock also testified that if he had known all of the facts in this case he would not have contributed to the prosecution fund.

As previously noted, the primary issue on appeal is whether there was probable cause for bringing the medical malpractice action against Sullivan. As the Florida Supreme Court stated in Goldstein v. Sabella, 88 So.2d 910, 911 (Fla.1956):

Probable cause is defined as “A reasonable ground of suspicion, supported by circumstances sufficiently strong in themselves to warrant a cautious man in the belief that the person accused is guilty of the offense with which he is charged.” Dunnavant v. State, Fla., 46 So.2d 871, 874. This, as well as other acceptable definitions of the term, indicates that one need not be certain of the outcome of a criminal or civil proceeding to have probable cause for instituting such an action.

Florida courts have not specifically addressed the issue of probable cause in the context of a malicious prosecution action against an attorney by his client’s adversary. Nevertheless, we believe that the following statement on the subject from Norton v. Hines, 49 Cal.App.3d 917, 123 Cal.Rptr. 237, 242 (1975), is in accord with general Florida law on the issue of probable cause:

It is the attorney’s reasonable and honest belief that his client has a tenable claim that is the attorney’s probable cause for representation (citations), and not the attorney’s conviction that his client must prevail. The attorney is not an insurer to his client’s adversary that his client will win in litigation. Rather, he has a duty “to represent his client zealously . [seeking] any lawful objective through legally permissible means ... [in presenting] for adjudication any lawful claim, issue or defense.” [A.B.A. Code of Professional Responsibility, EC 7-1, DR 7-101(a)(l), discussed in 1 Witkin, Cal. Procedure (2d ed.) Attorneys, § 239.] So long as the attorney does not abuse that duty by prosecuting a claim which a reasonable lawyer would not regard as tenable or by unreasonably neglecting to investigate the facts and law in making his determination to proceed, his client’s adversary has no right to assert malicious prosecution against the attorney if the lawyer’s efforts prove unsuccessful. (Emphasis in original).

The existence or lack of probable cause is a pure question of law for the court to determine under the facts and circumstances of a particular case. The resolution of disputed issues of fact is a question to be submitted to the jury. City of Pensacola v. Owens, 369 So.2d 328 (Fla.1979). In any action for malicious prosecution, the plaintiff is put to the difficult task of proving a negative, i. e., the lack of probable cause. In the instant case, although some facts were in dispute, in looking at the evidence with all conflicts resolved in Dr. Sullivan’s favor and in a light most favorable to him, he has not only failed to prove the lack of probable cause, but, in fact, his evidence establishes probable cause for the filing of the medical malpractice action.

Dr. Sullivan now argues that because, after filing it, Mr. Parker did virtually nothing to prepare his suit for trial, that fact alone is indicative of an absence of probable cause. Without condoning this lack of preparation, we find the facts within Mr. Parker’s knowledge at the time suit was filed sufficient to constitute probable cause for the commencement of the malpractice action. We hasten to add, however, that we do not pass upon the question of whether there was medical malpractice, only that there was probable cause to believe so, and that Parker conducted a reasonable investigation into the facts prior to filing suit.

In conclusion, we hold Mr. Parker’s investigation into the facts surrounding Mr. Terry’s complaints developed sufficient information to support a reasonable and honest belief that Terry had a tenable claim against Dr. Sullivan for medical malpractice. The evidence was therefore insufficient to support the plaintiff’s claim for malicious prosecution. We reach this conclusion notwithstanding the defendants’ failure to move for a directed verdict at the conclusion of all of the evidence, although they did so move at the conclusion of the plaintiff’s ease and renewed such motions after trial. Generally, a defendant must move for a directed verdict at the conclusion of the plaintiff’s case and at the conclusion of all of the evidence to preserve the issue of the sufficiency of the evidence for appellate review. Keyes Co. v. Shea, 372 So.2d 493 (Fla. 4th DCA 1979). However, we find this case falls within the exception to this rule delineated in Pickard, supra, where the court quoted from Baron and Holtzoff, Federal Practice and Procedure, Vol. 2, § 1081:

. The appellate court, therefore, is powerless to review the sufficiency of the evidence to support the verdict if the appellant made no motion for a directed verdict. The only exception is where the insufficiency of the evidence constitutes plain error apparent on the face of the record which if not noticed will result in a manifest miscarriage of justice

161 So.2d at 242.

Here, the evidence showed initial, questionable treatment by the performance of a closed reduction of a Monteggia fracture without adequate follow-up X-rays. The closed reduction was unsuccessful, necessitating an open reduction and rod insertion. The doctor admitted he measured the rod incorrectly, and that he was further incorrect in not taking X-rays. He also admitted he deliberately kept these facts out of the hospital records because they were damaging. When later X-rays showed the rod protruding into the wrist, further surgery to shorten it was performed almost six weeks later. This further surgery, necessitated solely by the doctor’s admitted prior errors in treatment, was also unsuccessful. Finally, the patient went to another doctor who did still another surgical procedure and corrected all of the prior medical errors. The patient also visited a lawyer who conferred with the latter doctor and with the patient and reviewed records and X-rays. Correspondence to the doctor about the problem resulted in settlement negotiations with the doctor’s insurance company.

A manifest miscarriage of justice would occur were we to hold these facts, as proved by plaintiff, supportive of an absence of probable cause to believe the doctor guilty of malpractice. It is not necessary for us to find the doctor was actually guilty of medical malpractice as a matter of law, however, we do find that the evidence proved the existence of, rather than the absence of, probable cause. The case is clearly within the exception where the insufficiency of the evidence constitutes plain error on the face of the record, which, if not noticed, would constitute a manifest miscarriage of justice. Pickard, supra.

Having determined that the evidence was insufficient to support the plaintiff’s claim, we find it unnecessary to consider the other points raised on appeal by the appellants, nor is it necessary to consider the cross-appeal. This cause is reversed and remanded with directions to enter a final judgment for the defendants.

BERANEK, J., and WALLACE R. PACK, Associate Judge, concur.


author: PER CURIAM.

text:
    Mattie Lee THOMAS, Appellant, v. WINN-DIXIE STORES, INC., Appellee.
    No. 77-618.
    District Court of Appeal of Florida, Fourth District.
    Jan. 30, 1980.
    Zebedee W. Wright, Fort Lauderdale, for appellant.
    William D. Ricker, Jr.,, of Fleming, O’Bryan & Fleming, Fort Lauderdale, for appellee.
   PER CURIAM.

Appellant’s cause was dismissed with prejudice for lack of prosecution. In view of her explanation that no pleadings were filed for over a year because “ . . .it was felt that settlement might be forthcoming,” the dismissal was proper. Leeks v. Dolling, 350 So.2d 10 (Fla. 4th DCA 1977), cert. denied, 357 So.2d 185 (Fla.1978), Steisel v. Birnholz, 313 So.2d 125 (Fla. 3d DCA 1975), cert. denied, 330 So.2d 14 (Fla.1976). However, the designation “with prejudice,” was in error, Spolter Electrical Supplies, Inc. v. Kalb, 275 So.2d 594 (Fla. 4th DCA 1973), and accordingly the clause “and with prejudice to the plaintiff,” is deleted and the judgment as modified is affirmed.

DOWNEY, C. J., and LETTS and HURLEY, JJ., concur.


text:
    T & T TRUCKING COMPANY and Insurance Company of North America, Appellants, v. Carl McWILLIAMS, Appellee.
    No. QQ-273.
    District Court of Appeal of Florida, First District.
    Jan. 30, 1980.
    James B. Thompson, of Fowler, White, Gillen, Boggs, Villareal & Banker, St. Pe-tersburg, for appellants.
    James T. Earle and Patrick J. Murphy, of Williams, Earle, Brasfield & Wertz, St. Pe-tersburg, for appellee.
   PER CURIAM.

AFFIRMED.

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

BOOTH, J., dissents.

BOOTH, Judge,

dissenting.

I dissent from this court’s retention of jurisdiction in this case, which arose outside the territorial jurisdiction of the court. See Crews v. Town of Bay Harbor, 378 So.2d 1265 (Fla. 1st DCA 1979).

On the merits, I would concur in the majority’s opinion.


author: SHARP, Judge.

text:
    AMERICAN HERITAGE INSTITUTIONAL SECURITIES, INC., Robert L. Noble and Forrest Thompson, Appellants, v. Francis T. PRICE, on behalf of herself and all others similarly situated, Appellee.
    No. 79-324.
    District Court of Appeal of Florida, Fifth District.
    Jan. 30, 1980.

      John D. Mahaffey, Jr., Orlando, for appellants.
    Richard H. Adams, Jr. of Gray, Adams, Harris & Robinson, P.A., Orlando, for ap-pellee.
   SHARP, Judge.

The Appellants filed an interlocutory appeal of the trial court’s order denying the Appellant’s Motion to Strike and Motion for Judgment on the Pleadings. The Appellee filed a Motion to Dismiss the appeal. The motions in the lower court were directed to whether the causes of action as stated in a two count complaint could be prosecuted as a class action. The Appellants urge that we have jurisdiction to review these non-final orders of the trial court under Rule 9.130(a)(3)(C)(iv) of the Florida Rules of Appellate Procedure:

Review of non-final orders of lower tribunals is limited to those which . determine . . the issue of liability in favor of a party seeking affirmative relief.

We disagree. The determination by a trial court that a cause can be appropriately brought as a class action, or that the allegations are sufficient to sustain a class suit, does not affirmatively determine liability. It allows the cause to proceed towards a potential liability as yet undetermined, and one which may never be established.

Prior to the adoption of the Florida Rules of Appellate Procedure, effective March 1, 1978, the sufficiency of the allegations of a complaint in class actions was frequently the subject of appeal to the District Courts of Appeal of Florida. See Davidson v. Lely Estates, Inc., 330 So.2d 528 (Fla. 2d DCA 1976); Rosenwasser v. Frager, 307 So.2d 865 (Fla. 3rd DCA 1975); Hendler v. Rogers House Condominium, Inc., 234 So.2d 128 (Fla. 4th DCA 1970). These appeals were taken as “interlocutory” appeals under Rule 4.2, which provided: “Appeals may be prosecuted in accordance with this rule from interlocutory orders in civil actions which, from the subject matter or relief sought, are such as formerly were cognizable in equity . . . In equity, it has long been held that when a question is one of common or general interest to many persons, who constitute a class so numerous as to make it impractical to bring all of them before the court, one or more may sue or defend for the whole.

Rule 9.130 has replaced former Appellate Rule 4.2. It no longer has the general category of matters formerly cognizable in equity. Under Rule 9.130 we do not have jurisdiction to consider the interlocutory orders raised in this appeal. Atreco-Florida, Inc. v. Berliner, 360 So.2d 784 (Fla. 4th DCA 1978), cert. denied, 366 So.2d 879 (Fla.1978). Accordingly, the Motion to Dismiss the appeal is granted, and the appeal is hereby dismissed.

DAUKSCH, C. J., and COBB, J., concur.


text:
    Carol Denise MILLER and Eugene Hearns, Appellants, v. STATE of Florida, Appellee.
    Nos. 78-1575, 78-1648.
    District Court of Appeal of Florida, Second District.
    Jan. 30, 1980.

      Jack 0. Johnson, Public Defender, and Michael E. Raiden, Asst. Public Defender, Bartow, for appellant Miller.
    John H. Duhig, Miami, for appellant Hearns.
    Jim Smith, Atty. Gen., Tallahassee, and Michael J. Kotler, Asst. Atty. Gen., Tampa, for appellee.
   PER CURIAM.

Carol Denise Miller and Eugene Hearns appeal from their convictions of aggravated child abuse in violation of Section 827.03, Florida Statutes (1977), and third-degree felony murder in violation of Section 782.-04(4), Florida Statutes (1977). The defendants make several contentions of error including the fact that they were convicted and sentenced for both felony murder and aggravated child abuse. The defendants contend that the separate judgments and sentences were improper. We agree and vacate the judgments and sentences for aggravated child abuse of both defendants.

Where the underlying felony is an essential element of the felony murder, a defendant cannot be sentenced for both crimes. In this case, appellant . was convicted of third-degree felony murder and aggravated child abuse; however, aggravated child abuse was an essential element of this felony murder. This is reflected in the information which charged appellants with murder while “in the perpetration of . aggravated child abuse.” The state was authorized to charge appellant with both crimes. However, where the underlying crime is an element of the greater offense, the defendant may be convicted and sentenced only for the greater of the crimes.

Mahaun v. State, 377 So.2d 1158 (Fla.1979). The information in the present case shows that aggravated child abuse was an essential element of the felony murder charge. Accordingly, the convictions and sentences for aggravated child abuse must be vacated. The convictions of third-degree felony murder are affirmed. It appears from the record, however, that the sentences of both defendants for third-degree felony murder failed to grant the defendants credit time. Since we are unable to determine from the record on appeal whether either defendant is entitled to credit time, we are remanding the ease to the trial judge with instructions that the sentences be modified to accord the defendants credit for time served, if any.

The judgments and sentences are otherwise affirmed.

HOBSON, Acting C. J., and BOARD-MAN and DANAHY, JJ., concur.


author: DANAHY, Judge.

text:
    DADE ERECTION SERVICE, INC., a Florida Corporation, Appellant, v. SIMS CRANE SERVICE, INC., a Florida Corporation, Appellee.
    No. 78-2303.
    District Court of Appeal of Florida, Second District.
    Jan. 30, 1980.
    Miguel A. Orta of Ress, Gomez, Rosenberg & Howland, North Miami, for appellant.
    David M. George of Gatlin & George, Tampa, for appellee.
   DANAHY, Judge.

Dade Erection Service appeals an order denying its motion to set aside a default judgment which had been entered for failure to file an answer or other response to a complaint filed by appellee. Appellant contends that the default judgment should have been set aside because service of process had not been perfected pursuant to Section 48.081, Florida Statutes (1977). We agree and reverse.

After the complaint was filed, summons was issued directing the sheriff to serve it together with a copy of the complaint on Jorge Morejon, appellant’s secretary/treasurer and resident agent; in his absence Manuel Lopez, a director, was to be served; and in the absence of both of these two, service was to be made on any other officer, director, or business agent of appellant. The summons further instructed that service be made at the corporation’s address, which also happened to be the address of the private residence of the Morejon and Lopez families.

The form used by the sheriff for return of service shows that “Corporate Service” was not made. Instead, the return form was marked in the space entitled “Other Returns” and contained a hand written notation that at 8:22 a. m. on June 15, 1978, the deputy sheriff “served Dade Erection Service, Inc., by serving Mrs. Jorge More-jon, authorized to accept service.”

A default was entered on July 7, and the court granted appellee’s motion for a final judgment on July 13. Claiming that service of process had not been made in accordance with Section 48.081(1), appellant moved the court to vacate the default on July 28. The depositions of Mrs. Manuel Lopez, Mrs. Mo-rejón, and the deputy who filed the return were considered by the trial court when it held a hearing on the motion by telephonic means and entered its order denying the motion on November 27, 1978.

There is considerable conflict in their testimony. A summary of the deputy’s testimony indicates he was met at the door of the house by Mrs. Lopez and Mrs. Morejon, who informed him that their husbands were not at home and that they generally left early and returned late. Mrs. Morejon stated to him that the company was owned by her and her husband; that she was authorized to accept service; and that she had accepted service for him in the past. We are not told whether such previous suits were against him personally or against the corporation. She did not indicate, nor did the deputy attempt to ascertain, if she held any office or position in the corporation described in Section 48.081. His return of no corporate service indicates he did not serve her in any capacity described in that statute. He did not inquire whether she was an employee of the corporation, and there is no indication he considered her an employee. Following this conversation at the door, the deputy served the papers on Mrs. Morejon and filed the return described above. The deputy had no recollection of having served Mrs. Lopez.

Appellant’s contention that the appellee failed to perfect service of process on it as required by Section 48.081 and two of the points raised by appellee to counter that argument merit discussion. Appellee does not argue that Mrs. Morejon was an officer or director of the corporation,.but contends that she was properly served as its “business agent.” Alternatively, appellee asserts that the corporation failed to comply with the requirements of Section 48.091, thereby implying that the deputy was authorized to effect constructive service on the corporation under the circumstances .of this case by leaving the papers with Mrs. Morejon.

Because it is a fictional entity, strictly speaking there can be no personal service on a corporation. Service can only be made on some representative or agent of the corporation designated by law. Clearwater Mercantile Company v. Roberts, Johnson, Rand Shoe Company, 51 Fla. 176, 40 So. 436 (1906); Country Clubs of Sarasota, Ltd. v. Zaun Equipment, Inc., 350 So.2d 539 (Fla. 1st DCA 1977). Sections 48.081 and 48.091 provide the exclusive means of effecting service of process on an active corporation, and these provisions must be strictly construed. Drew Lumber Company v. Walter, 45 Fla. 252, 34 So. 244 (1903); Ludlum Enterprises, Inc. v. Outdoor Media, Inc., 250 So.2d 649 (Fla. 4th DCA 1971). Strict compliance with Section 48.081 requires that a return which shows service upon an inferior officer or agent must demonstrate that all members of a superior class could not first be served. This is a condition precedent to the validity of service upon a member of an inferior class. Ludlum Enterprises, Inc. v. Outdoor Media, Inc., supra, citing Largay Enterprises, Inc. v. Berman, 61 So.2d 366 (Fla.1952).

The necessity for and desirability of such a stringent requirement was discussed in Imperial Towers, Inc. v. Dade Home Services, Inc., 199 So.2d 518 (Fla. 4th DCA 1967), when our sister court approved the following statement set forth in National Organization Masters, Mates and Pilots v. Banks, 196 F.2d 428 (5th Cir. 1952):

The obvious purpose of this statute is to have the service made upon one who is held responsible by the corporation . . . This objective is based on good sense and sound reason. For example, unless the plaintiff is compelled to serve the officers and agents holding the more responsible positions, when it is possible to do so, plaintiffs will serve those with less responsibility in the hope that the information will not be transmitted to the proper corporate officers, thus resulting in a default judgment.

196 F.2d at 430.

The foregoing principles are distilled from cases which are, for the most part, factually distinguishable from the case at bar. Appellant contends, however, that Ludlum Enterprises is on point and compels reversal. In that case, service on the defendant-corporation was effected by serving a copy on a desk clerk, an “agent” of the corporation, at the corporation’s hotel. The clerk then delivered it to the president of the corporation. Thus, the corporation had in fact received notice of the suit. The plaintiff there argued that the intended result of the statute was accomplished when the appropriate officer eventually learned of the suit. The court responded that that was not the purpose of the statute; the purpose' was, “to insure notice as high on the corporation hierarchy as possible. Relying on a desk clerk’s relay of service does not reach the degree of insurance and efficiency which is normally expected in the legal process.” 250 So.2d at 650.

That case is distinguishable from the instant case in a crucial respect. There, the serving officer made no attempt to serve the officers and directors in the order listed in the predecessor to Section 48.081(1) before serving the desk clerk, i. e., he had failed to establish the absence of a member of the superior class. The record in the instant case, however, makes clear that the deputy had ascertained the absence of Messrs. Morejon and Lopez from the corporate address before serving Mrs. Morejon. The question on which our decision turns, therefore, is whether Mrs. Morejon was one of the persons authorized to accept service and bind the corporation, i. e., whether she was a member of an inferior class as defined in the statute.

Mrs. Morejon was not a business agent of the corporation as contemplated by Section 48.081(l)(d). We have defined that term in a similar context as a person “who acts as a representative of the corporation and who officially speaks for it in its local business affairs.” Continental Home Parks, Inc. v. Golden Triangle Asphalt Paving Company, 291 So.2d 49 at 52 (Fla. 2d DCA 1974). See also Valdosta Milling Company v. Garretson, 54 So.2d 196 (Fla.1951). Moreover, had the deputy considered Mrs. Morejon to be the corporation’s business agent, he would have indicated on the portion of the return provided for “Corporate Service” that he had served her in that capacity rather than in the “Other Returns” category. It seems clear the deputy served Mrs. Morejon because she was the spouse of an officer, director and named resident agent of the appellant. The statute makes no provision for such service of process.

Appellee’s argument that appellant failed to comply with the requirements of Section 48.091 is simply not supported by the record. That section requires that the corporation have a registered office open from 10:00 a. m. to 12:00 noon with a registered agent, on whom process may be served, present. But the deputy was there and gone before 8:30 a. m. and so we are not presented with a case where a corporation failed to have its registered agent present at its registered office during the time period such an office is required to be open.

Because service of process was not made in compliance with either Section 48.081 or Section 48.091, the trial court had no jurisdiction over appellant and, therefore, the final judgment was void. Because this is so, the order denying the relief sought by appellant is reversed and the cause is remanded to the trial court for further proceedings consistent with this opinion.

HOBSON, Acting C. J., and BOARD-MAN, J., concur.

      . Both parties are small, closely-held corporations. Appellee’s complaint was filed on June 7, 1978, and alleged that it was owed over $9,000 by appellant under an equipment lease contract.

      .Section 48.081(1) provides, in pertinent part, for service of process on corporations in the following manner:
      (1) Process against any private corporation, domestic or foreign, may be served:
      (a) On the president or vice president, or head of the corporation; and in his absence:
      (b) On the cashier, treasurer, secretary or general manager; and in the absence of all of the above:
      (c) On any director; and in the absence of all of the above:
      (d) On any officer or business agent residing in the state.

      (3) As an alternative to all of the foregoing, process may be served on the agent designated by the corporation under s. 48.091.
      Section 48.091 requires every corporation qualifying to do business in Florida to designate a registered agent and registered office, and further requires this office to be open with an agent present “from 10:00 a. m. to 12:00 noon each day, except Saturdays, Sundays and legal holidays.”

      . The form return used in Dade County provides for service on a corporation “[b]y serving a copy of this writ and a copy of plaintiff’s initial pleading to [Party Served] as [Position] of defendent [sic] corporation in the absence of any such superior officer as defined in the Florida Statutes.”

      . According to Mrs. Lopez, she was the only one who had ever accepted service of any legal documents, which she had always placed on a bureau for her husband or Mr. Morejon to read in the evening. She did not recall having seen the deputy on the morning of June 15, 1978. She also testified that she was not an employee of the corporation. Mrs. Morejon’s testimony was similar. She also stated that she was not an employee or a stockholder of the corporation, and that she had never received service of process in connection with her husband’s business, either on June 15 or at any other time.

      . However, service on a domestic corporation may be by publication if the sheriff has diligently searched in vain for those persons listed in Chapter 48. See § 49.051, and State ex rel. Woods-Young Co. v. Tedder, 103 Fla. 1083, 138 So. 643 (1932).

      . There is no indication in the case before us that appellant actually received notice of the suit.

      . A similar result was recently reached in an analogous case. Mac Organization, Inc. v. Harry Rich Corporation, 374 So.2d 81 (Fla. 3d DCA 1979).

      . See fn. 3, supra.

      .If that had been the case, and if appellee had been further unable to serve the appropriate corporate official, substituted service of process by publication would likely have been the method available to secure jurisdiction over appellant. Ch. 49, Fla.Stat. (1977).


author: BOARDMAN, Judge.

text:
    C. C. HUNTER, Appellant, v. CITY OF TAMPA, Appellee.
    No. 79-684.
    District Court of Appeal of Florida, Second District.
    Jan. 30, 1980.

      W. Eric Venable, P. A., and John F. Venable, Tampa, for appellant.
    Karen J. Prevatt and James Andrew Sheehan, Asst. City Attys., Tampa, for ap-pellee.
   BOARDMAN, Judge.

C. C. Hunter, plaintiff below, appeals a final judgment “confirming” the action of the Board of Trustees of the City Pension Fund for Firefighters and Police Officers of the City of Tampa (the Board) denying appellant an in-line-of-duty pension and awarding him only a nonline-of-duty pension. Appellant contends that the evidence before the trial court was insufficient to support its ruling. We agree and reverse.

Appellant was employed for sixteen years as a patrolman with the Tampa Police Department. On November 30, 1973, he was injured, fracturing three ribs, when he was chasing a suspect and fell over a concrete bench. As a result of this accident appellant also complained of back pain.

The fractures healed and appellant returned to work. At first he was on limited duty, but was subsequently told by his treating physician, Dr. L. J. Cordrey, that he could return to “full activity.”

A second accident occurred on June 15, 1974, in which appellant claimed he received a jolt from a dip in the road and hurt his neck and back.

Appellant missed a good deal of time from work and complained of back pain, but no neurological or orthopedic objective findings confirmed any residual of either accident. Dr. J. Robert Campbell did find appellant had degenerative arthritic changes in the spine.

On January 15, 1975, appellant applied for an in-line-of-duty disability retirement pension. At about the same time as he applied for a disability pension appellant was referred by the city to Anthony Moore, Ph.D., a clinical psychologist, who opined that the accident of November 30,1973, and its sequelae either caused or aggravated a depressive reaction of such intensity and duration as to warrant psychological treatment.

Appellant was also referred by the Medical Board to Dr. Myron H. Silverman, a psychiatrist. Silverman treated appellant, initially seeing appellant on a weekly basis for medication; in May of 1975, he became the “primary and sole treater.” Silverman admitted appellant to Tampa Heights Hospital on May 9, 1975, as a suicidal precautionary measure. According to Silverman, appellant gradually improved to the point he was placed “on open ward regime.” On June 12, 1975, when he was made aware of dismissal proceedings being instituted against him by the Tampa Police Department, his depressive symptoms became quite severe again and it was necessary to transfer him to a closed ward. Silverman, in both his March 17, 1975 letter and his June 16, 1975 letter concluded that appellant’s symptoms were duty related, stating in the June 16 letter:

Mr. Hunter’s current admission has offered me the opportunity for a thorough review of his history and clinical picture. This has underscored the reality of my original conclusion, that the stress of the industrial accident on November 30, 1974, [sic] and its sequelae were the major contributing factor [sic] to his current medical condition.

Appellant’s application for an in-line-of-duty pension was denied on March 18, 1975. He subsequently filed this action for declaratory judgment seeking to have the Board’s ruling overturned.

The evidence adduced at appellant’s bench trial consisted of voluminous medical records plus the testimony of appellant, Dr. Silverman, William L. Floyd, and Anthony Coniglio, the latter two being laymen who were members of the Board.

None of the documentary evidence was inconsistent with Dr. Silverman’s opinion, again expressed at trial, that appellant’s psychiatric condition was caused by the se-quelae to the accident of November 30, 1973. Silverman explained the situation as follows:

Mr. Hunter is a kind of a fellow that wraps his life around work or had until November of ‘73 where his whole daily routine was structured around work. His daily patterns, et cetera. The accident and the perceived pain he had following the accident and his inability to work, based on that, interrupted a stabilizing life pattern. So, to him, it was a traumatic, severe loss which is always a trigger for depression.

Appellant’s testimony indicated that the changes in his behavior following the accident had led to marital problems. Furthermore, his inability as a result of the accident to continue “moonlighting” as he had prior to the accident had led to financial difficulties. These problems, in turn, may have aggravated his emotional problems. Appellant’s testimony that he had had no marital or financial difficulties prior to the accident was uncontradicted by either testimony or documentary evidence.

The only evidence on behalf of the Board was the testimony of Messrs. Floyd and Coniglio. Floyd explained his reason for denying appellant an in-line-of-duty pension as follows:

The medical evidence before the Board and myself at that time gave me no indication of any objective disability. — physical disability on the part of Mr. Hunter. As I recall, the doctors found him totally subjective in that the only physical ailments [sic] they could discover is that Mr. Hunter complained of pain.
The medical evidence before the Board indicated that Mr. Hunter was not able to continue as a Police Officer, but I could find no connection between his disability as described by the doctors and the injury on the job.
In my opinion, the disability which he suffered stemmed from day-to-day living stress which every person is subjected to, as opposed to stress which would be unique to Police Officers.

Coniglio explained his reasoning thus:

Q You, as an individual Pension Board member, do you recall what you related his mental disability to when you reviewed his file and voted to deny him a line-of-duty disability pension?
A Yes, ma’am. It was his files from the doctor. Dr. Silverman, if I am not mistaken, showed that he had, among other problems — had marital and financial problems. After reviewing the complete file where he was put back to full duty, rehabilitated from all his injuries, documented by physicians that there was nothing physically wrong with him and then the marital and financial problems, I felt like this was the main cause of his problems.

No evidence of any kind was presented to show that appellant’s disability was caused by anything other than his November 30, 1973 injury. The opinions of Floyd and Coniglio are unsupported by any evidence in the record. Regardless of the standard of review applied,, the evidence was insuffi-eient to support the final judgment and must therefore be reversed. See Hamilton v. Title Insurance Agency of Tampa, Inc., 338 So.2d 569 (Fla.2d DCA 1976).

Accordingly, the final judgment is REVERSED and the cause REMANDED with instructions to award appellant an in-line-of-duty pension from January 15, 1975, the date he filed his application.

HOBSON, A. C. J., and DANAHY, J., concur.

      . Appellant contends his burden was to prove his case by a preponderance of the evidence, on a trial de novo, while the city argues that the trial court’s function was solely to determine whether the Board’s action was or was not arbitrary and capricious. In view of our disposition of this case, we do not address this issue.


author: OTT, Judge.

text:
    Willie Mack PERRY, Petitioner, v. FIREMAN’S FUND INSURANCE COMPANY and David Ussery, Respondents.
    No. 79-1285.
    District Court of Appeal of Florida, Second District.
    Jan. 30, 1980.
    James W. Kelly of Livingston & Kelly, Sebring, for petitioner.
    W. Robert Mann and David Paul Montgomery of Mann & Fay, Bradenton, for respondents.
   OTT, Judge.

Willie Mack Perry, plaintiff below, appeals the amended order of the trial court which abated his action against Fireman’s Fund and its insured, David Ussery. For the following reasons we treat the order of the trial court as a stay of the proceedings and the appeal as a petition for certiorari to review a nonappealable interlocutory order.

Petitioner filed a complaint against David Ussery on May 9, 1978, alleging negligent operation of a motor vehicle. Respondent, Ussery’s liability carrier, was joined as a defendant. As of October 30, 1978, however, service of process had not been effected upon Ussery. Respondent filed a motion to abate or quash the action, contending that its liability could not be determined without the presence of its insured. The trial court denied the motion, but respondent was granted a continuance until such time as service of process could be effected upon defendant Ussery.

Thereafter, respondent submitted a motion to amend the order, maintaining that the proper remedy for failure to join an indispensable party was dismissal of the complaint. However, respondent stated in the motion, as it does here, that dismissal was not sought; rather, it requested an abatement of the action until service of process could be effected. It was contended that to allow the action to proceed without proper joinder would “prejudice [the respondent] in such proceedings as depositions and other discovery.” The trial judge subsequently entered the amended order abating the action “until proper service has been obtained upon the defendant, David Ussery.”

It would seem there is some merit to respondent’s contention that the insured is an indispensable party to the action. See Kephart v. Pickens, 271 So.2d 163 (Fla. 4th DCA 1972), and Fla.R.Civ.P. 1.140(b). See also, Beta Eta House Corp. v. Gregory, 230 So.2d 495 (Fla. 1st DCA 1970), and Shingleton v. Bussey, 223 So.2d 713 (Fla.1969).

Although the order labeled the postponement as an “abatement”, we treat it as a stay of the proceedings in light of respondent’s request and the intent of the order. Traditionally, abatement terminated common law actions and necessitated bringing the action anew if and when it became proper to do so. Equitable actions were merely suspended until such time as the disability was removed. Under modern rules a stay simply postpones the action until the happening of some contingency. See generally, 1 Fla.Jur.2d, Actions §§ 37, 63.

A stay is a nonappealable interlocutory order. Fla.R.App.P. 9.130(a). Thus, we treat this appeal as a petition for certiorari under Florida Rules of Appellate Procedure 9.030(b)(2)(A). Departure from the essential requirements of law and prejudice have not been made to appear. Therefore, we deny the petition for certiorari. The “abatement” should not preclude appropriate interrogatories to respondent, or other permissible discovery, as to the whereabouts of respondent’s insured, David Us-sery.

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

      . Why Ussery has not been served is not revealed by the record or the briefs of the parties.

      . Respondent stated in its motion to amend the trial court’s order continuing the action that it believed “that plaintiff should be given additional opportunity to effect proper service of process upon the insured and therefor [sic] calls for abatement of this action rather than dismissal of the complaint.”


text:
    Lucius SEALEY, Appellant, v. STATE of Florida, Appellee.
    No. 79-1366.
    District Court of Appeal of Florida, Second District.
    Jan. 30, 1980.
    Jack 0. Johnson, Public Defender, and P. Douglas Brinkmeyer, Asst. Public Defender, Bartow, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Michael J. Kotler, Asst. Atty. Gen., Tampa, for appellee.
   PER CURIAM.

Affirmed. We agree with the decisions of the First, Third, and Fourth District Courts of Appeal that Section 810.011(1), Florida Statutes, extends the application of curtilage to the area surrounding any building, not just a dwelling, for purposes of defining a burglary. Tobler v. State, 371 So.2d 1043 (Fla. 1st DCA 1979); DeGeorge v. State, 358 So.2d 217 (Fla. 4th DCA 1978); Greer v. State, 354 So.2d 952 (Fla. 3d DCA 1978).

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


author: SCHEB, Judge.

text:
    Jerry R. GUNN, Appellant, v. STATE of Florida, Appellee.
    No. 79-2024.
    District Court of Appeal of Florida, Second District.
    Jan. 30, 1980.
   SCHEB, Judge.

Jerry R. Gunn appeals from an order summarily denying his motion to vacate under Florida Rule of Criminal Procedure 3.850. The only allegation in the motion which appears to have any facial merit is Gunn’s contention that he did not enter his plea of nolo contendere voluntarily. He avers that both before and during his appearance in court, he was under the effect of tranquilizers prescribed by a jail physician, and that he would not have entered a nolo contendere plea had his mental faculties not been diminished.

We have reviewed the transcript of Gunn’s plea hearing. Although the trial judge conducted a thorough colloquy to otherwise determine voluntariness, and establish a factual basis for the plea, the transcript of said hearing, read as a whole, does not directly or indirectly refute appellant’s allegation that he was under medication which so diminished his mental capacity as to render his plea involuntary.

We can sustain summary denial of a motion for post conviction relief only where “the motion and the files and records in the case conclusively show that the prisoner is entitled to no relief . . Fla.R.Crim.P. 3.850; see Merritt v. State, 165 So.2d 245 (Fla.2d DCA 1964). Since the record in this case does not conclusively refute Gunn’s allegation that his plea was involuntary, he is entitled to an evidentiary hearing on this allegation. For Gunn to prevail, he must present substantial evidence establishing that he was taking tranquilizers at the time he entered his nolo contendere plea and that the tranquilizers’ influence on him prevented him from having a full understanding of the significance of his plea.

Accordingly, we reverse the trial court’s decision, remand and direct the court to afford Gunn an evidentiary hearing to determine whether his condition at the time of his plea rendered him incapable of fully understanding the significance of the plea and its voluntariness as required by Florida Rule of Criminal Procedure 3.170(j).

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


text:
    DEPARTMENT OF TRANSPORTATION and Department of Insurance of the State of Florida, Petitioners, v. Joseph A. KEDZIERSKI and Eileen M. Kedzierski, etc., et al., Respondents.
    No. 79-2203.
    District Court of Appeal of Florida, Second District.
    Jan. 30, 1980.
    James B. Thompson, of Fowler, White, Gillen, Boggs, Villareal & Banker, P. A., St. Petersburg, for petitioners.
    John M. Edman of Meros, Coit, Edman, Meros, Smith & Meros, P. A., St. Peters-burg, for respondents.
   PER CURIAM.

Certiorari dismissed. See Wagner v. Bieley, Wagner and Associates, Inc., 263 So.2d 1 (Fla.1972); Cement Products Corp. v. Department of Transportation, 363 So.2d 866 (Fla. 2d DCA 1978).

HOBSON, Acting C. J., and BOARD-MAN and DANAHY, JJ., concur.


text:
    SUNRISE POINT, INC. and Continental Casualty Co., Appellant, v. Timoteo CABRERA, Sunrise Point Condominium Association, Inc., etc. et al., Appellees.
    No. QQ-112.
    District Court of Appeal of Florida, First District.
    Jan. 31, 1980.
    H. B. Yandle, of Joel R. Teague, Coral Gables, for appellant.
    Robert Urich, of Urich & Shenkman, Miami, for appellee Cabrera.
    David A. Freedman, Miami, for appellee Sunrise Point Condominium Association, Inc.
   PER CURIAM.

We amend the judge of industrial claims’ order to reflect that the accident and injury referred to have thus far only been alleged, not proved. The order appealed from is otherwise affirmed.

ERVIN, SHIVERS and SHAW, JJ., concur.


text:
    Johnny WILLIAMS, Appellant, v. CENTRAL SERVICE CORPORATION and Liberty Mutual Insurance Company, Appellees.
    No. QQ-128.
    District Court of Appeal of Florida, First District.
    Jan. 31, 1980.
    Gary J. Boynton, of Meyers, Mooney & Adler, Orlando, for appellant.
    Donna L. Bergh, Orlando, for appellees.
   PER CURIAM.

AFFIRMED.

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

BOOTH, J., dissents.

BOOTH, Judge,

dissenting.

I dissent from this court’s retention of jurisdiction in this case, which arose outside the territorial jurisdiction of the court. See Crews v. Town of Bay Harbor, 378 So.2d 1265 (Fla. 1st DCA 1979).

On the merits, I would concur in the majority’s opinion.


text:
    Ronnie E. THORNTON, Appellant, v. EXPERT TREE SERVICE and C. N. A. Insurance Company, Appellees.
    No. QQ-490.
    District Court of Appeal of Florida, First District.
    Jan. 31, 1980.
    Harry G. Goodheart, III, of Goodheart & Logan, Bradenton, for appellant.
    Mark A. Olewinski, Orlando, for appel-lees.
   PER CURIAM.

AFFIRMED.

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

BOOTH, J., dissents.

BOOTH, Judge,

dissenting.

I dissent from this court’s retention of jurisdiction in this case, which arose outside the territorial jurisdiction of the court. See Crews v. Town of Bay Harbor, 378 So.2d 1265 (Fla. 1st DCA 1979).

On the merits, I would concur in the majority’s opinion.


text:
    Jimmie L. WALDON, Appellant, v. FAIRWAY BAKERY and Aetna Casualty & Surety Company, Appellees.
    No. QQ-496.
    District Court of Appeal of Florida, First District.
    Jan. 31, 1980.

      Michael A. Miller and Donna L. Bergh of Walker & Buckmaster, Orlando, for appellant.
    Janet L. Brown of Haas, Boehm & Brown, P.A., Orlando, for appellees.
   PER CURIAM.

AFFIRMED.

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

BOOTH, J., dissents.

BOOTH, Judge,

dissenting.

I dissent from this court’s retention of jurisdiction in this case, which arose outside the territorial jurisdiction of the court. See Crews v. Town of Bay Harbor, 378 So.2d 1265 (Fla. 1st DCA 1979).

On the merits, I would concur in the majority’s opinion.


author: ROBERT P. SMITH, Judge.

text:
    Michael S. HURST, Appellant, v. STATE of Florida, Appellee.
    No. PP-218.
    District Court of Appeal of Florida, First District.
    Feb. 1, 1980.
    Michael S. Hurst, in pro. per.
    Jim Smith, Atty. Gen., and Charles A. Stampelos, Asst. Atty. Gen., Tallahassee, for appellee:
   ROBERT P. SMITH, Judge.

On this appeal from the trial court’s denial of Hurst’s Rule 3.850 motion to correct a sentence in case number 78-289, it appears that the trial court did not state in the judgment and sentence the amount of jail time credit allowed against the sentence, but recited: “Time served in jail already considered.” Ordinarily we would remand with directions to modify the sentence by specifying the number of days credited, and providing that Hurst need not be present for resentencing, Larson v. State, 301 So.2d 491 (Fla. 1st DCA 1974); Kirkland v. State, 357 So.2d 766 (Fla. 1st DCA 1978). This casé is complicated by the pendency here of Hurst’s appeal from the judgment and sentence, which was pending also when Hurst submitted his Rule 3.850 motion to the trial court. It appears that the trial court was without power to entertain the Rule 3.850 motion while the appeal is pending here. Grizzell v. State, 187 So.2d 342 (Fla. 1st DCA 1966); Barton v. State, 193 So.2d 627 (Fla. 2d DCA 1966). The order here reviewed is therefore AFFIRMED, without prejudice to Hurst’s reapplication to the trial court for correction of the sentence, should the judgment and sentence otherwise be affirmed on appeal.

AFFIRMED.

BOOTH and SHIVERS, JJ., concur.


text:
    FLORIDA COLLEGE and Aetna Casualty and Surety Company, Appellants, v. Arlin WILSHER and Michigan Mutual Insurance Company, Appellees.
    No. QQ-309.
    District Court of Appeal of Florida, First District.
    Feb. 1, 1980.
    Richard A. Valeri and Susan R. Whaley of Macfarlane, Ferguson, Allison & Kelly, Tampa, for appellants.
    Jim C. Jones, Tampa, for appellee/Arlin Wilsher.
    Peter H. Dubbeld of Brown, Watson, Goldstein & Douglass, P. A., St. Petersburg, for appellee/Michigan Mut. Ins. Co.
   PER CURIAM.

AFFIRMED.

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

BOOTH, Judge,

dissenting.

I dissent from this court’s retention of jurisdiction in this case, which arose outside the territorial jurisdiction of the court. See Crews v. Town of Bay Harbor, 378 So.2d 1265 (Fla. 1st DCA 1979).

On the merits, I would concur in the majority’s opinion.


text:
    Thomas C. GRAY, Appellant, v. STATE of Florida, Appellee.
    No. 79-712.
    District Court of Appeal of Florida, Second District.
    Feb. 1, 1980.

      David A. Demers of Demers & Demers, St. Petersburg, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and James S. Purdy, Asst. Atty. Gen., Tampa, for appellee.
   PER CURIAM.

Thomas Gray appeals his judgment and sentence for robbery, having pled nolo con-tendere with reservation of his right to appeal the denial of his motions to suppress certain tangible evidence and his confession.

Appellate review of issues arising out of a plea of nolo contendere is allowable only if the issues raised are dispositive of the case. Brown v. State, 376 So.2d 382 (Fla.1979), First Amendment Foundation of Florida, Inc. v. State, 364 So.2d 450 (Fla.1978). As a matter of law, a confession may not be considered dispositive of the case for purposes of an Ashby nolo plea. Brown v. State, supra. Thus appellant is not entitled to review of the denial of his motion to suppress his confession on this appeal.

On the record before us we seriously question whether the ruling on appellant’s remaining motion to suppress tangible evidence is dispositive of this case. However, in an effort to be fair to both appellant and appellee, we have determined to leave the question up to the trial court. Pittman v. State, No. 79-642 (Fla.2d DCA Jan. 30, 1980).

Accordingly, we relinquish jurisdiction to the trial court for a period of thirty days with directions to hold a hearing to determine whether the ruling on the motion to suppress was dispositive of the case and advise this court of its conclusion. If the court concludes that the ruling was disposi-tive, the record should be supplemented to reflect this, and we will resume jurisdiction of this appeal.

If the trial court determines the motion not to have been dispositive of the case, this court shall be notified, and we will dismiss this appeal. However, in that event, the trial court shall allow appellant thirty days from the date of our mandate within which to file a motion to withdraw his plea. The court shall grant any such motion unless the state is able to establish prejudice as a result of the delay engendered by this appeal. See Pittman v. State, supra. Should appellant not be allowed to withdraw his plea, he may seek review of the order denying withdrawal by filing a new appeal in this court.

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

      . State v. Ashby, 245 So.2d 225 (Fla.1971).


text:
    HERMAN J. HEIDRICH & SONS and Peninsular Fire Insurance Company, Appellants, v. James E. FLOYD, Appellee.
    No. QQ-323.
    District Court of Appeal of Florida, First District.
    Feb. 4, 1980.

      Keith A. Mann, of Miller & Cooper, Orlando, for appellants.
    Irvin A. Meyers and Gary J. Boynton, of Meyers, Mooney & Adler, Orlando, for ap-pellee.
   PER CURIAM.

AFFIRMED.

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

BOOTH, J., dissents.

BOOTH, Judge,

dissenting.

I dissent from this court’s retention of jurisdiction in this case, which arose outside the territorial jurisdiction of the court. See Crews v. Town of Bay Harbor, 378 So.2d 1265 (Fla. 1st DCA 1979).

On the merits, I would concur in the majority’s opinion.


text:
    HELMS & SMITH, INC. and Great American Insurance Company, Appellants, v. Walter LOVETT, Appellee.
    No. QQ-379.
    District Court of Appeal of Florida, First District.
    Feb. 4, 1980.
    Raymond A. Haas of Haas, Boehm & Brown, P.A., Orlando, for appellants.
    Gary J. Boynton of Meyers, Mooney & Adler, P.A., Orlando, for appellee.
   PER CURIAM.

AFFIRMED.

MILLS, C. J., and McCORD, J., concurs.

BOOTH, J., dissents.

BOOTH, Judge,

dissenting.

I dissent from this court’s retention of jurisdiction in this case, which arose outside the territorial jurisdiction of the court. See Crews v. Town of Bay Harbor, 378 So.2d 1265 (Fla. 1st DCA 1979).

On the merits, I would concur in the majority’s opinion.


text:
    George ROGERS, Petitioner, v. Louis L. WAINWRIGHT, Secretary, Department of Corrections, State of Florida, Respondent.
    No. SS-201.
    District Court of Appeal of Florida, First District.
    Feb. 4, 1980.
    George Rogers, pro se.
    Jim Smith, Atty. Gen., and Miguel A. Olivella, Jr., Asst. Atty. Gen., for respondent.
   PER CURIAM.

Petitioner’s Petition for Writ of Habeas Corpus complains that respondent failed to credit him with additional gain time allowances due him under Section 944.275(2)(b), Florida Statutes (1978), for the period July 1, 1978 (effective date of the statute) to January 1, 1979. This court issued order to show cause, the response to .which demonstrates recomputation of petitioner’s gain time to comply with that portion of the statute.

Petitioner also contends that in addition to accrual of gain time under the new statute, Section 944.275, he is also entitled to the benefit of gain time computed under former Section 944.27, Florida Statutes (1977), which was in effect at the time of his sentence in March, 1977. Under Section 944.27, petitioner’s statutory gain time of 540 days was applied by the Department of Corrections to his five-year sentence to arrive at a tentative expiration date of July 8, 1980. After passage of Section 944.275 petitioner was informed that his tentative release date computed under the new law (Section 944.275(l)(a), (b) and (c), Florida Statutes, 1978), would be March 5, 1981, some 240 days later.

The argument is raised by petitioner that his loss of gain time, mandated by computations required under the amended statute, is expressly forbidden by the ex post facto provisions of Article I, Sections 9 and 10, United States Constitution, and Article I, Section 10, Florida Constitution. We find that this question has already been decided adversely to petitioner by the Supreme Court of Florida in Harris v. Wainwright, 376 So.2d 855, 1979.

The petition is denied.

McCORD, LARRY G. SMITH and SHIVERS, JJ., concur.

      . Repealed by Section 2, Chapter 78-304, Laws of Florida (1978), effective July 1, 1978.


text:
    G. A. K., a child, Appellant, v. STATE of Florida, Appellee.
    No. NN-221.
    District Court of Appeal of Florida, First District.
    Feb. 5, 1980.
    Michael J. Minerva, Public Defender, and Thomas S. Keith, Asst. Public Defender, for appellant.
    Jim Smith, Atty. Gen., and A. S. Johnston, Asst. Atty. Gen., for appellee.
   PER CURIAM.

G.A.K. appeals an adjudication of delinquency for petit theft. We hold that the evidence was insufficient to support the adjudication. After reviewing the record, we find it apparent that the state based its case upon the principle that one unexplain-ably in possession of recently stolen property may be successfully prosecuted for larceny. However, the state failed to show G.A.K. possessed the subject property. At the time the property was discovered, G.A.K. was restrained at the juvenile detention center as a runaway. Detective Kelly, suspecting that G.A.K. was involved in the larceny, went to the center and asked to see all items taken from appellant. Kelly found the stolen property inside a paper bag with G.A.K.’s name on it. This is the extent of the evidence showing possession. No intake officer testified. Additionally, the case for reversal becomes most compelling considering that the inventory sheet failed to list the items purportedly taken. The assistant supervisor of the juvenile detention center testified that all items taken from a juvenile are listed on an inventory sheet. He examined the inventory sheet in this case and stated that he would assume that when G.A.K. signed the envelope acknowledging its contents, it apparently did not contain the stolen property. Reversed and remanded with instructions to discharge appellant.

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


text:
    MONEX CORPORATION and Maryland Casualty Company, Appellant, v. Jose MERCADO, Appellee.
    No. QQ-120.
    District Court of Appeal of Florida, First District.
    Feb. 5, 1980.

      Jerry V. Wilkey, Coral Gables, for appellant.
    Arthur Newman, Miami, for appellee.
   PER CURIAM.

Appellee, a machine shop operator, was injured in a compensable accident in 1975. He was treated by numerous physicians who gave differing impairment ratings, the highest being twenty-five percent permanent partial disability to the body as a whole. The judge of industrial claims found that appellee had suffered a thirty-five percent permanent partial disability, awarded temporary total benefits for a period of almost two years, awarded payment of certain medical bills, and held that attorney’s fees were justified and a vocational counselor’s fees should be paid by the appellants. Appellants challenge all these rulings.

We reverse the judge of industrial claims’ finding of thirty-five percent permanent impairment. None of the physicians gave that high a rating, nor did the order state sufficient justification for the award; the order simply found thirty-five percent permanent partial disability “based upon [claimant’s] present physical impairment.” This statement does not reveal the rationale for the award, and we cannot find competent, substantial evidence to support it. Williston Welding Fabricating Co. v. Brooks, IRC Order 2-3167 (May 25, 1977). On remand, the judge of industrial claims should make findings based on the record.

We also reverse the finding of temporary total disability because the doctor who testified to a date of maximum medical improvement first said appellee had been temporarily, totally disabled but later corrected himself by stating that the disability during the time at issue was only partial. Generally, moreover, a claimant must make an effort to return to work before he can establish temporary total disability. Martin Marietta Corp. v. Johnson, 7 FCR 355, cert. denied 283 So.2d 557 (Fla.1973). Appellee in this case did not attempt to work after his accident.

In their third point, appellants contend the judge of industrial claims erred in awarding payment to one of appellee’s doctors and in ordering payment for “future medical care as is consistent with his injuries.” There was evidence the doctor in question received authorization by telephone, so there was no abuse of discretion in finding the doctor’s treatment reasonable and necessary. The provision for future medical care, however, failed to comport with the limitations of § 440.13(3)(b), Florida Statutes (1975), and is amended to reflect those limitations. See Luv Auto Sales v. Murphy, IRC Order 2-3567 (October 10, 1978), cert. dism. 373 So.2d 459 (Fla.1979).

There was no error in the finding that attorney’s fees were justified. The judge of industrial claims did not specify the amount of the fee, nor did he state what portion of the award the fee would be based on. Given the language of the order, appellee’s attorney will have to establish the basis for a fee award, and the judge of industrial claims may, on the proof submitted, enter an appropriate order.

The order of payment for services by a vocational counselor, however, was erroneous. The appellants may not be taxed for charges other than the fee for the counselor’s expert testimony. Rinker Materials Corp. v. Ingraham, IRC Order 2-3150 (April 29, 1977), cert. denied 362 So.2d 1053 (Fla.1978).

Affirmed in part, reversed in part, and remanded for further findings consistent with this opinion.

ERVIN, SHIVERS and SHAW, JJ., concur.


text:
    Cecil CRIBBS, Petitioner, v. FLORIDA PAROLE COMMISSION, Respondent.
    No. TT-117.
    District Court of Appeal of Florida, First District.
    Feb. 5, 1980.
    Cecil Cribbs, pro se.
   PER CURIAM.

This cause is before us on Petition for Writ of Mandamus asserting failure of respondent to properly compute a presumptive release date. Factual matters are asserted, and no record is provided. Petitioner has failed to exhaust administrative remedies. Houston v. Florida Parole and Probation Commission, 377 So.2d 34 (Fla. 1st DCA 1979); Anderson v. Florida Probation and Parole Commission, 378 So.2d 1265 (Fla. 1st DCA 1979). The petition is denied.

BOOTH, SHAW and WENTWORTH, JJ., concur.


text:
    Alberto GARCIA, Appellant, v. The STATE of Florida, Appellee.
    No. 77-1838.
    District Court of Appeal of Florida, Third District.
    Feb. 5, 1980.

      Bennett H. Brummer, Public Defender, Elliot H. Scherker, Asst. Public Defender and William A. Clay, Sp. Asst. Public Defender, for appellant.
    Jim Smith, Atty. Gen., and Steven R. Jacob, Asst. Atty. Gen., for appellee.
    Before PEARSON and HUBBART, JJ., and CHAPPELL, BILL G., Associate Judge.
   PEARSON, Judge.

Appellant Alberto Garcia was found guilty of possession of cocaine and the sale of cocaine. After adjudication and sentence, he appealed the judgment arguing the point that, because of State action, he was deprived of his right to present a witness and to have process for the compulsory attendance of the witness.

The following statement of the facts, advanced by the appellant, has been accepted by the State. The charges, arose from the sale by Garcia of approximately one pound of cocaine to two undercover police officers, who had been introduced to him by Hilarión Monteagudo, an informant who solicited the sale. The defense was entrapment, and Garcia’s testimony at trial made a prima facie case for entrapment.

Prior to trial, Garcia took the depositions of the two police officers. The officers refused to give any information about the informant, on the ground of “informant privilege.” This position was consistently maintained by the State throughout all subsequent proceedings even though the name and address of the informant had appeared on a witness subpoena when the State secured the arrest of the appellant for the misdemeanor of exhibiting a weapon in an assault on the informant.

The State filed a motion for a protective order in which it alleged that defense counsel “. . .is now in possession of the name of the confidential informant” and stated that “. the confidential informant will be testifying in this case himself.”

Counsel for Garcia then issued a deposition subpoena on Monteagudo. It was served at the address given by the police in the misdemeanor proceedings by leaving a copy with his parents at that address. When Monteagudo failed to appear for deposition, the defense moved for the disclosure of the location of the informant, alleging (1) that the defense at trial would be entrapment, based upon the actions of the informant, (2) that the informant had been physically present during the majority of the transactions which led to the arrest of defendant, (3) that the name of the informant had been divulged by the police officers in the police report, (4) that the officers refused to disclose the identity of the informant on deposition or to confirm that Monteagudo was the informant, (5) that Monteagudo had failed to appear for deposition and (6) that disclosure of the informant was essential to the preparation of the defense at trial.

At the hearing on the motion, the State retracted the statement in its motion for a protective order and stated that it was no longer willing to produce the informant. At a subsequent hearing, the prosecutor admitted that Monteagudo was, in fact, the informant. The court ruled that it would require the State to produce Monteagudo for deposition only if the defense invoked the reciprocal provision of Florida Rule of Criminal Procedure 3.220.

Defense counsel then represented to the court that, regardless of his right to depose Monteagudo, he intended to call him as a witness at trial. He informed the court that he had attempted to serve Monteagudo with a trial subpoena both at his home address and through the police department but had been unable to obtain personal service. Counsel requested the court to issue either a writ of attachment or a writ of habeas corpus ad testificandum to obtain the presence of Monteagudo at trial. The court deferred ruling on the motion. The trial began the next day, and the defense renewed its request at the conclusion of jury selection. The court denied the motion.

The appellant filed a written motion the following day, alleging that Monteagudo was an essential witness who could not be located and that the police had information of the witness’s whereabouts. He requested the court either to compel the police officers to disclose any information that they might have or to issue process to compel Monteagudo’s attendance at the trial. The motion was again denied.

We hold that reversible error occurred when the trial court refused to issue process for the witness’s attendance at trial and, as an incident of that process, to require the State to reveal any knowledge it might have that would aid in the service of the process. See Trafficante v. State, 92 So.2d 811 (Fla.1957); and cf. Washington v. Texas, 388 U.S. 14, 87 S.Ct. 1920, 18 L.Ed.2d 1019 (1967); Green v. Estelle, 488 F.2d 918 (5th Cir. 1973).

We also hold that it was error for the court to deny the appellant’s motion to require the police officers to reveal any information that they had concerning the informant’s whereabouts during the deposition proceedings. The right to take the deposition of a known witness is not, as the trial judge apparently thought, contingent upon a demand for reciprocal discovery under Florida Rule of Criminal Procedure 3.220. Also, the burden of disclosure upon the State is often greater than that placed upon the defendant. See U. S. v. Wright, 160 U.S.App.D.C. 57, 68, 489 F.2d 1181, 1192 (D.C. Cir. 1973). In the present case, this principle is reinforced by the fact that the informant’s identity was already known to the defense. See Roviaro v. U. S., 353 U.S. 53, 60, 77 S.Ct. 623, 627, 1 L.Ed.2d 639, 644-645 (1957).

The State’s position that the privilege not to reveal the identity of a confidential informant operated to justify its refusal to allow the police officers to testify concerning their knowledge of Monteagudo’s whereabouts and the court’s failure to issue process for Monteagudo’s testimony at trial, is entirely unfounded. Once the identity of the informant is revealed, the privilege disappears. See Roviaro v. U. S., 353 U.S. 53, 60, 77 S.Ct. 623, 627, 1 L.Ed.2d 639, 644-645 (1957); and 76 A.L.R.2d 262, 291-292 (1961). If after the identity of an informant is revealed, it is necessary to protect him further, this may be done by appropriate court order. See Fla.R.Crim.P. 3.220(h); and State v. Hassberger, 350 So.2d 1 (Fla.1977); and cf. U. S. v. Gomez-Rojas, 507 F.2d 1213, 1219-1220 (5th Cir. 1975).

In any event, this record does not contain any offer of proof by the State that the informant was in danger, and the court did not act upon that basis. If the safety of the informant is placed in question, then the court must weigh the interests of the State and the safety of the individual against the defendant’s right to develop his defense. See State v. Hassberger, supra; and see generally Roviaro v. U. S., 353 U.S. 53, 62, 77 S.Ct. 623, 628, 1 L.Ed.2d 639, 646 (1957); and Spataro v. State, 179 So.2d 876, 878-879 (Fla. 2d DCA 1965); also cf. Evanco v. State, 350 So.2d 780 (Fla. 1st DCA 1977). That was not done in this case.

We reverse the judgment and the sentence and remand the cause with directions to grant the defendant a new trial.

Reversed and remanded.