text:
    Roger YOST, Herbert W. Abramson and Ivan Phillips, on behalf of themselves, and all other shareholders of Congress International Development Corporation, Appellants, v. CONGRESS INTERNATIONAL DEVELOPMENT CORPORATION, Howard Sonn, Stuart E. Wilson, Eugene Snidow and H & M Cattle Company, Appellees.
    No. 79-904.
    District Court of Appeal of Florida, Third District.
    May 13, 1980.
    Savitt, Kotzen & France and Howard J. Lubel, North Miami Beach, for appellants.
    Schatzman & Schatzman, Miami, Brooks, Bunin & Gossett, Hollywood, for appellees.
    Before HUBBART, NESBITT and PEARSON, DANIEL, JJ.
   ORDER ON MOTION FOR REVIEW OF ORDER TAXING COSTS

PER CURIAM.

The order under review is reversed insofar as it withholds execution on an award of appellate costs relating to a prior appeal in this cause, Yost v. Congress International Corp., 378 So.2d 1300 (Fla.3d DCA 1979), as, in our view, Fla.R.App.P. 9.400(a) clearly entitles the appellant to an immediate award of such costs without stay of execution thereon. In all other respects, the order under review is affirmed. The cause is, accordingly, remanded to the trial court with directions to vacate that portion of the order under review which withholds execution of the award of appellate costs.

Affirmed in part; reversed and remanded in part.


source: Caselaw Access Project

author: PER. CURIAM.

license: Public Domain

text:
    Gail HILLSON, Appellant, v. Robert DEESON and Richard Deeson and Alec Krystel, d/b/a Dixie Glass, jointly and severally, Appellees.
    No. 79-1248.
    District Court of Appeal of Florida, Third District.
    May 13, 1980.

      Greene & Cooper and Sharon L. Wolfe, Tod Aronovitz, Miami, for appellant.
    Talburt, Kubicki & Bradley and Betsy E. Hartley, Miami, for appellees.
    Before HUBBART, NESBITT and DANIEL S. PEARSON, JJ.
   PER. CURIAM.

The final judgment under review is affirmed upon a holding that: (a) the motion for new trial based on newly discovered evidence [raised by the affidavit in support thereof which was treated below as part of the motion for new trial] was properly denied by the trial court because the new evidence probably would not, in our view, have changed the outcome of this trial, and, in any event, did not establish that the defendant Robert Deeson knowingly gave false testimony at trial. Dade National Bank of Miami v. Kay, 131 So.2d 24 (Fla.3d DCA 1961); compare Alston v. Shiver, 105 So.2d 785 (Fla.1958); and (b) the defendant’s final argument which was objected to, and the trial court’s oral statement overruling said objection was proper, and, in any event, presents no reversible error. Blackburn v. Dorta, 348 So.2d 287, 291, 293 (Fla.1977); Taylor v. State, 330 So.2d 91, 93 (Fla.1st DCA 1976); § 59.041, Fla.Stat. (1979).

This affirmance, however, should not be interpreted as an approval of other comments made by plaintiff’s counsel (TR 186, 192-93) and defendant’s counsel (TR 198-99, 200-202, 206-207, 208, 210) in final argument to which no objection was made. In our view, these comments violate the spirit, if not the letter of Fla.Bar Code Prof.Resp. EC7-24, DR7-106(C)(3), (4), insofar as they assert counsel’s personal belief in the justness of the cause and the credibility of the parties as witnesses at trial as well as counsel’s personal knowledge of the facts in issue. Miami Coin-O-Wash, Inc. v. McGough, 195 So.2d 227 (Fla.3d DCA 1967). We deplore such comments and admonish counsel not to engage in such conduct in the future; indeed, the trial court, in our view, should restrain these comments even absent an objection. We affirm, not because we condone such conduct; but because both parties engaged in it and neither interposed any objection thereto, Nelson v. Reliance Insurance Co., 368 So.2d 361 (Fla.4th DCA 1978).

Affirmed.


author: SCHWARTZ, Judge.

text:
    CHESTER, BLACKBURN & RODER, INC., a Florida Corporation, Appellant, v. Donna Belt MARCHESE d/b/a Ful/Line Business Forms and F B F Distributors, Appellee.
    No. 79-1519.
    District Court of Appeal of Florida, Third District.
    May 13, 1980.
    Donald F. Geffner, Miami, for appellant.
    Swope & Stobs and Kenneth V. Bevan, Miami Shores, for appellee.
    Before SCHWARTZ, and NESBITT, JJ., and VANN, HAROLD (Ret.), Associate Judge.
   SCHWARTZ, Judge.

The defendant below, Chester, Blackburn & Roder, Inc. appeals from a final money judgment, rendered upon an order of default which had been entered by the court pursuant to Fla.R.Civ.P. 1.500(b). We reverse because, under Fla.R.Civ.P. 1.500(c), the appellant had pled “before [the] default was entered.”

The pertinent facts are few and undisputed. The plaintiff-appellee sued the defendant to recover for unpaid goods and services. The defendant filed a motion to dismiss or for a more definite statement. The lower court denied the motion in an order dated March 16, 1979 which gave the defendant “ten days [thereafter] in which to file an answer.” The appellant neither filed an answer nor moved for an extension within the time allotted. On April 10,1979, therefore, the plaintiff filed a motion for default which, as well as the notice of hearing, was served upon the defendant as required by Fla.R.Civ.P. 1.500(b), because it had filed a “paper in the action,” the unsuccessful defensive motion. At the beginning of the hearing on the motion, which was set at 1:00 P.M. on April 23, 1979, the defendant’s lawyer produced an answer and counterclaim which he apparently served on plaintiff’s counsel, and attempted to file with the trial judge. The court refused to accept the pleading on the ground that the only matter noticed and pending was the plaintiff’s motion for default. At the conclusion of the hearing, the court signed an order of default tendered by the plaintiff. Shortly thereafter, at 2:41 P.M. on April 23, plaintiff’s counsel filed the answer and counterclaim in the clerk’s office. The executed order of default, however, was not filed with the clerk until the next day, April 24, 1979. Subsequent to the entry of the default, the court entered final judgment for the amount claimed against the defendant. After the denial of its motion, filed under both Fla.R.Civ.P. 1.500(d) and 1.540, to set aside the default and the judgment, the defendant took this appeal.

We hold that the default for failure to plead, which formed the basis of the final judgment now under review, was improper as in contravention of Fla.R.Civ.P. 1.500(c). That rule succinctly provides that “[a] party may plead or otherwise defend at any time before default is entered.” [e.s.] It is plain that an order may not be deemed to have been “entered,” notwithstanding its having been signed by the court, until it is actually filed with the clerk. Dibble v. Dibble, 377 So.2d 1001 (Fla.3d DCA 1979); McNitt v. Osborne, 371 So.2d 696 (Fla.3d DCA 1979); see, e. g., Jackson v. Sears, Roebuck and Co., 83 Ariz. 20, 315 P.2d 871 (1957); City of Darien v. Dublinski, 16 Ill.App.3d 140, 304 N.E.2d 769 (1973); Urban Renewal Agency of Colby v. Church of Christ, 211 Kan. 705, 508 P.2d 1227 (1973); Polis v. Alford, 267 S.W.2d 918 (Tex.Civ.App.1954). In this case, it is undisputed that the answer was filed before the order and therefore before the default was “entered.” As in Freedman v. Freedman, 235 So.2d 544, 545 (Fla.3d DCA 1970), therefore, “[i]n this case, the default was entered by the court against the appealing defendant after her answer had been filed, in contravention of Rule 1.500(c) FRCP.”

For these reasons, the final judgment below must be reversed and the cause remanded, with directions to vacate the order of default, and for further proceedings not inconsistent herewith.

Reversed and remanded.

      . See Kiaer v. Friendship, Inc., 376 So.2d 919, 922 (Fla.3d DCA 1979), and cases cited; Gould v. Ruzakowski, 322 So.2d 567 (Fla.3d DCA 1975); Freedman v. Freedman, 235 So.2d 544 (Fla.3d DCA 1970).

      . Our conclusion that the answer was filed before the default order was “entered” renders it unnecessary to decide whether the provision in Rule 1.500(c) that one may “plead” at any time requires that the pleading be actually filed — as well as “served” — before the default is entered, but see Fla.R.Civ.P. 1.080(d), compare Fla.R. Civ.P. 1.500(a); Mo-Con Properties, Inc. v. American Mechanical, Inc., 289 So.2d 744 (Fla.4th DCA 1974). Nor need we determine whether, if it does, the court erred in declining to permit the answer to be filed before him as authorized by Fla.R.Civ.P. 1.080(e).

      . Since the order of default was erroneous, the final default judgment must be set aside even if, as the appellee argues, the defendant did not show a meritorious defense in support of its motion to vacate. Mo-Con Properties, Inc. v. American Mechanical, Inc., supra, n.2; see also Mac Organization, Inc. v. Harry Rich Corp., 374 So.2d 81 (Fla.3d DCA 1979).

      . We do not in any way approve the inexcusable dilatoriness exhibited by defense counsel in the trial court. Our opinion, therefore, does not preclude the imposition after remand of appropriate sanctions, short of default, upon the defendant or its lawyer.


author: PER CURIAM.

text:
    The PRUDENTIAL INSURANCE COMPANY OF AMERICA, Appellant, v. Terry TENNEN, Appellee.
    No. 79-1546.
    District Court of Appeal of Florida, Third District.
    May 13, 1980.

      Lane, Mitchell & Harris and Byron B. Mathews, Jr., Miami, for appellant. .
    Paul S. Berger, Miami, for appellee.
    Before' SCHWARTZ and PEARSON, DANIEL, JJ., and VANN, HAROLD R. (Ret.), Associate Judge.
   PER CURIAM.

The Prudential Insurance Company of America, defendant in the trial court, appeals a final judgment determining the amount of benefits to which plaintiff Terry Tennen is entitled under a certain life insurance policy.

On October 28, 1973, Prudential issued to Terry’s husband, Meyer Tennen, a $50,000 life insurance policy which contained an automatic nonforfeiture provision. When a premium remained unpaid at the expiration of the grace period and at the same time the policy has a cash value, the unpaid premium is automatically paid by the cash value, which is reduced accordingly. Thereafter Meyer, on May 1, 1975, transferred ownership of the policy to his wife, Terry. Subsequently, on January 28,1977, Prudential loaned Meyer $3,875.90 on the policy. To obtain the loan, Meyer forged Terry’s name on the loan application and on the back of the check issued to him by Prudential. He then deposited the proceeds in a joint checking account. Meyer died on March 5, 1977 and Terry demanded that Prudential pay her the $50,000 under the policy. Prudential refused to pay for the reason that the policy premium due on January 28, 1977 had not been paid and the $3,875.90 loan having depleted the cash value of the loan, the policy could not be extended under the automatic nonforfeiture provision. Terry filed suit against Prudential and sought recovery of the benefits under the policy. Following a non-jury trial, the court entered judgment as follows:

“1. That at the time of the insured’s death on March 5, 1977, there had been outstanding loans against said policy in the amount of $3,875.90 representing the total cash value of the policy, which loan was obtained by means of a forgery by the now deceased insured without the Plaintiff/Wife’s knowledge.
“2. Plaintiff, TERRY TENNEN, received the benefits and use of these loan proceeds.
“3. That the last monthly premiums paid on policy number 39-145-694 were for the month of December, 1976 and that the premiums for the months of January and February, 1977 were unpaid and remained due and owing at the time of the insured’s death.
“4. The Court holds that the Plaintiff, TERRY TENNEN, is entitled to recover against THE PRUDENTIAL INSURANCE COMPANY OF AMERICA the face amount of policy number 39-145-694, which is $50,000.00, less the amount of thé loan of $3,875.90 with interest of $81.54 and. less the amount of the unpaid premiums for January and February of 1977 in the amount of $496.40.
“It is ORDERED AND ADJUDGED that judgment on the Plaintiff, TERRY TEN-NEN, shall recover from the Defendant, THE PRUDENTIAL INSURANCE COMPANY OF AMERICA, the sum of $45,546.16 with her costs for which let execution issue.”

Prudential appeals therefrom. We affirm.

Courts are always quick to prevent the deprivation of the rights of the beneficiary by fraud. See 3A Appleman Ins. L. & P. § 1754 (1967). If the insurer acts wrongfully in making an unauthorized loan and thus, reduces the amount available for extended coverage which would otherwise have kept the policy in force until after the insured’s death, it is liable to the beneficiary for the amount of the policy. Farmer v. Prudential Ins. Co. of America, 167 So. 234 (La.App.1936) and 3 Appleman Ins. L. & P. § 173.7 (1967). The loan in the instant case having been obtained by forgery without Terry Tennen’s knowledge or consent, we conclude that under the above principles of law, the trial court was correct in entering judgment for Terry Tennen. See, e. g., Mutual Benefit Life Ins. Co. v. Willoughby, 54 So. 834, 99 Miss. 98 (1911).

Affirmed.


author: DANIEL S. PEARSON, Judge.

text:
    Randolph PEYTON, Appellant, v. The STATE of Florida, Appellee.
    No. 79-1568.
    District Court of Appeal of Florida, Third District.
    May 13, 1980.

      Alvin E. Entin and Jeffrey Marks, North Miami Beach, Manuel W. James, Key West, for appellant.
    Jim Smith, Atty. Gen., and Susan C. Minor, Asst. Atty. Gen., for appellee.
    Before HUBBART, NESBITT and DANIEL S. PEARSON, JJ.
   DANIEL S. PEARSON, Judge.

This is an appeal by Randolph Peyton, the defendant below, from a judgment that Peyton had violated the conditions of his probation and a prison sentence of one year imposed thereon. We affirm.

On March 11, 1977, the trial court adjudged Peyton guilty of battery, withheld imposition of sentence and placed him on probation for a period of three years. This three-year term of probation was in excess of that allowed by law. Section 784.03, Florida Statutes (1975), provides that the offense of battery is a misdemeanor in the first degree. A misdemeanor in the first degree is punishable by a term of imprisonment not exceeding one year. § 775.-082(4)(a), Fla.Stat. (1975). Since a term of probation cannot exceed the maximum term of imprisonment provided by statute, Swift v. State, 362 So.2d 723 (Fla. 2d DCA 1978); Mays v. State, 349 So.2d 792 (Fla. 2d DCA 1977), it is clear that the trial court was not empowered to place the defendant on probation for more than one year.

The trial court’s judgment placing Peyton on probation for a term of three years was, however, unlawful only to the extent of the excess. Silkey v. State, 356 So.2d 924 (Fla. 2d DCA 1978); Moore v. State, 324 So.2d 690 (Fla. 1st DCA 1976); McBride v. State, 311 So.2d 752 (Fla. 4th DCA 1975); Chaires v. State, 265 So.2d 529 (Fla. 1st DCA 1972); Brown v. State, 264 So.2d 28 (Fla. 1st DCA 1972). The judgment was effective to place Peyton on probation for one year.

On February 14, 1978, within this first year of probation, Peyton was charged with violations of the conditions of probation. A hearing on these charges was held on August 25, 1978. On the same day, a hearing was held on Peyton’s motion to correct the three-year term of probation. The concurrence of these proceedings along with the entry of still another order served to create the confusion which became the fodder for Peyton’s appeal.

The deputy clerk’s minutes for August 25, 1978, reflect that the trial court found that the probation conditions were violated and revoked probation. These minutes also reflect that Peyton’s motion for correction of sentence was granted. On September 5, 1978, the trial court entered a written order on the motion for correction of sentence. This order vacated the three-year probationary term and placed Peyton on probation for one year beginning August 25, 1978. The order also contained the perfunctory recital that the defendant “has not violated the conditions of his probation.” Peyton argues that this language constituted the court’s ruling on the hearing respecting probation violations and that the written order superseded any conflicting court minutes.

We agree that where there is conflict between a deputy clerk’s minutes and a later order of the court, the order prevails. Watt v. State, 323 So.2d 621 (Fla. 1st DCA 1975). However, there is no conflict here. The deputy clerk’s minutes clearly reflect two separate rulings by the court. Moreover, the trial court’s written judg.ment and sentence, entered at the time the court imposed the one-year prison sentence for the probation violation, expressly recites that Peyton violated his probation and that the court had revoked it on August 25,1978.

Affirmed.

      . When an affidavit and warrant charging probation violations issue within the probationary term, there is no jurisdictional impediment to holding a hearing thereon after the expiration of such term. Carpenter v. State, 355 So.2d 492 (Fla. 3d DCA 1978); Brooker v. State, 207 So.2d 478 (Fla. 3d DCA 1968).

      . Since the defendant had completed service of the maximum term of probation on March 11, 1978, the trial court’s order of September 5 violated the principles announced above and was a nullity.

      . As counsel for the State understated at the later sentencing hearing, “perhaps the form of the order on August 25, 1978, leaves something to be desired.”


text:
    194TH STREET HOTEL CORPORATION, d/b/a Sheraton Beach Hotel and Kent Insurance Company, Appellants, v. Janet Lia HOPF, Appellee.
    No. 79-1882.
    District Court of Appeal of Florida, Third District.
    May 13, 1980.
    Jessie W. Miller, Hialeah, for appellants.
    Rentz & Haggard; Daniels & Hicks and Sam Daniels, Miami, for appellee.

      Before SCHWARTZ and DANIEL PEARSON, JJ., and VANN, HAROLD R. (Ret.), Associate Judge.
   SCHWARTZ, Judge.

The defendant below appeals from a $75,-000 judgment entered against it in a personal injury action on a jury verdict finding that it had been 75% negligent and that the plaintiff had sustained $100,000 in damages. We affirm.

The plaintiff, Janet Hopf, a 17-year old guest of the appellant’s hotel, was severely injured when she slipped on a wet spot on a wooden walkway at the rear of the lobby. The defendant claims the right .to a directed verdict on the ground that there was insufficient evidence that it had actual or constructive notice of the existence of the moisture on the floor. See, e. g., Friedman v. Biscayne Restaurant, Inc., 254 So.2d 831 (Fla. 3d DCA 1971). The correctness of this position is essentially irrelevant because the record shows both that the surface upon which the fall occurred had become dangerously worn, smooth, and therefore slippery, see Maas Bros., Inc. v. Bishop, 204 So.2d 16 (Fla. 2d DCA 1967), and that the entire area was insufficiently lighted. See Fountainhead Motel, Inc. v. Massey, 336 So.2d 397 (Fla. 3d DCA 1976); Fletcher v. Petman Enterprises, Inc., 324 So.2d 135 (Fla. 3d DCA 1976); Robinson v. Kiwanis Club of Delray Beach, 265 So.2d 387 (Fla. 4th DCA 1972). There was thus ample evidence that the defendant had negligently maintained its premises so as to require that the liability issue be submitted to the jury.

The two other points which merit discussion both concern the question of damages, concerning which the evidence revealed that, as a result of the fall, Ms. Hopf sustained a pneumothorax — a collapsed lung — which was repaired only by a painful operative procedure. When, soon after-wards, she returned home to New York, her lung collapsed again and further hospitalization was required. Her treating physician testified by deposition that a collapsed lung usually leaves adhesions which, within “reasonable medical probability,” can cause pain and symptoms in the future. Moreover, he said a pneumothorax could recur at any time as a result of any subsequent trauma or even so much as a simple cough. Janet and her mother both stated that, because of her “constant fear” that her lung would again collapse, she no longer engaged in any of the myriad of activities in which she had participated before the accident. She testified that she felt “that it is just not fair that this should happen and that I always have to be afraid.”

During the course of her testimony, Janet was permitted, over the defendant’s hearsay objection, to testify as to what her doctor had told her about her future. Specifically, she stated that

“He told he that I would have to live with myself and to be careful never to strain myself.”

The trial court ruled, and specifically instructed the jury, that this testimony was to be received and considered only for the purpose of demonstrating “the state of mind of this witness as she received this information from [the doctor].” We conclude, contrary to the defendant’s contention here, that the admission of this evidence, for the limited purpose stated, was entirely correct. Since the statement was specifically not admitted to prove the truth of its contents, that is, the accuracy of the medical opinion that the plaintiff must avoid future strain, it should not technically be regarded as “hearsay” at all. See Lombardi v. Flaming Fountain, Inc., 327 So.2d 39 (Fla. 2d DCA 1976); § 90.801(1), Fla. Stat. (1979). In any case, whether treated as “non-hearsay,” or, far less accurately, as an “exception” to the hearsay rule, it is well-settled that evidence of an out-of-court Statement to show its effect upon the mental attitude of the person who hears it is properly admissible. 6 Wigmore on Evidence § 1789 (3rd ed. 1976); McCormick on Evidence § 249, text and cases at nn. 82-88 (2nd ed. 1972). In this case, it was obviously pertinent to the plaintiff’s damage claims that her actions were restricted because of a reasonable belief that she must avoid future physical stress. Hence, it was perfectly proper for the jury to know one of the bases for that concern. Brown v. Coca-Cola Bottling, Inc., 54 Wash.2d 665, 344 P.2d 207, 209 (1959) is directly on point:

[T]he testimony of which appellant complains is not within the ban of the hearsay evidence rule. The words of Dr. Evans were not offered to prove their truth or falsity (i. e., as to whether respondent would have to undergo a major operation), but merely to establish the state of mind of respondent Brown which respited from the doctor’s statement to him. As such, respondent’s testimony came within a well-recognized exception to the hearsay rule, [citing cases] The value of this evidence did not hinge upon the credibility of Dr. Evans, but rather upon that of respondent, who.was testifying on the stand and was subject to cross-examination.

Accord, Ferrara v. Galluchio, 5 N.Y.2d 16, 176 N.Y.S.2d 996, 152 N.E.2d 249 (1958) (doctor’s statement that plaintiff might develop cancer admissible to show resulting anxiety).

The defendant also claims that the trial judge erred in instructing the jury concerning the alleged permanence of the plaintiff’s injuries. The basis of this contention is the fact that no specific expert medical opinion to this effect was in evidence. Again, we disagree. The testimony of the plaintiff and her mother that her activities would “always” be restricted— particularly when coupled with the doctor’s testimony that there was an objective and sound medical reason for her apprehensions — fully justified the charge on permanent injury. Sullivan v. Price, 368 So.2d 614 (Fla. 1st DCA 1979); Gallub v. Del Vecchio, 301 So.2d 785 (Fla. 3d DCA 1974), cert. denied, 314 So.2d 774 (Fla.1975); Salvador v. Munoz, 193 So.2d 442 (Fla. 3d DCA 1966); see Corbett v. Dade County Board of Public Instruction, 372 So.2d 971 (Fla. 3d DCA 1979).

Affirmed.

      . This rule is to be distinguished from the admissibility of out-of-court statements to show the state of mind of the declarant. Hunt v. Seaboard Coast Line R. Co., 327 So.2d 193 (Fla.1976); Allen Morris Co. v. McNally, 305 So.2d 79 (Fla. 3d DCA 1974); McCormick on Evidence § 249, text and authorities at nn. 89-96; § 294 (2nd ed. 1972).


text:
    Edmond Jerome DUHART, Appellant, v. The STATE of Florida, Appellee.
    No. 80-533.
    District Court of Appeal of Florida, Third District.
    May 13, 1980.
    Edmond Jerome Duhart, in pro per.
    Jim Smith, Atty. Gen., for appellee.
    Before SCHWARTZ, NESBITT and DANIEL PEARSON, JJ.
   PER CURIAM.

On March 4, 1976, appellant was adjudicated guilty and sentenced to: life imprisonment for robbery; five years in the state penitentiary for unlawful possession of a weapon while engaged in a criminal offense; and five years in the state penitentiary, consecutive to the above sentences, on possession of a stolen motor vehicle. The conviction was affirmed here at 348 So.2d 387 (Fla. 3d DCA 1977). By collateral attack on the sentence, defendant alleged that it was error to sentence him on the count of possession of a firearm during the robbery. Johnson v. State, 366 So.2d 418 (Fla.1978); Cone v. State, 285 So.2d 12 (Fla.1973).

Since the legality of the sentence now complained of was directly litigated in the prior appeal, the relitigation is now foreclosed in the state courts, Fla.R.Crim.P. 3.850; Epps v. State, 365 So.2d 179 (Fla. 1st DCA 1978); Pitts v. State, 355 So.2d 505 (Fla. 1st DCA 1978); and apparently the federal courts as well, Kastenbaum v. United States, 588 F.2d 138 (5th Cir. 1979).

Affirmed.


author: DOWNEY, Judge.

text:
    Wade WILKINS, Appellant, v. STATE of Florida, Appellee.
    No. 77-2169.
    District Court of Appeal of Florida, Fourth District.
    May 14, 1980.
    Richard L. Jorandby, Public Defender, and Tatjana Ostapoff, Asst. Public Defender, West Palm Beach, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Mary E. Marsden, Asst. Atty. Gen., West Palm Beach, for appellee.
   DOWNEY, Judge.

Appellant was found guilty of possession (Count I) and sale (Count II) of cocaine and sentenced to 25 years on Count II as an habitual offender.

It is contended by appellant that the trial court erred in: 1) overruling appellant’s objection to prosecutorial comment regarding appellant’s prior convictions, 2) allowing prosecutorial comment regarding appellant’s exercise of the right to postpone making an opening statement, and 3) instructing the jury that the maximum penalty appellant could receive was 15 years, when the court knew the State intended to seek to have appellant sentenced as a habitual offender with a possible maximum sentence of 30 years.

The evidence showed that appellant had been convicted of a crime seven times. During closing argument the prosecutor stated:

Here’s a man, seven times prior been convicted of a crime, who takes the stand and tells you he’s an innocent, law-abiding citizen, who doesn’t know anything about this black man who approached him on two occasions [about drugs].

Appellant contends the prosecutor was trying to use the evidence of previous crimes to show appellant’s propensity to commit crime. Of course, one view of the evidence does tend to show that, as does any proof that a defendant on trial has been previously convicted of multiple crimes. However, the argument is also consistent with an attack upon appellant’s credibility, an attack which was entirely proper. Consequently, we find no error on this point.

With regard to the next point, the prosecutor argued that appellant had reserved his opening statement until after the State’s case was concluded in order to develop a theory of defense to counter the evidence the State had presented. Then in his opening statement appellant contended he had been entrapped. The prosecutor then presented the query, if the defense were really entrapment, why did the appellant spend so much time cross-examining the chemist as to whether the alleged contraband, allegedly possessed and sold by appellant, was cocaine? We have studied the remarks complained about and fail to find any fundamental error involved. Since appellant did not object to the comments at the time they were made, we need consider them no further.

Finally, appellant suggests the trial court erred in charging the jury that the maximum penalty appellant could receive was 15 years, when at the time the court was aware the State intended to seek an enhanced sentence under the habitual offender statute. Appellant relies upon Stern v. State, 296 So.2d 549 (Fla. 3d DCA 1974), wherein it was held that it was error to instruct the jury that, upon conviction of the charge of second degree murder the maximum penalty was 30 years in the State penitentiary because as a habitual offender he could be sentenced to life imprisonment. The appellant (who was tried on a first degree murder charge) argued that the instruction misled the jury, which, had it known of the possible life sentence for second degree murder, might well have found him guilty of an evén lesser offense than the offense for which it convicted him (second degree murder).

In the later case of Nappier v. State, 354 So.2d 929 (Fla. 2d DCA 1978), the court refused to follow Stern for three reasons:

1) To advise the jury of the possibility of an enhanced sentence because appellant had been convicted of multiple other crimes would require the court to improperly reveal to the jury that appellant had been convicted of other crimes.
2) The Nappier trial judge instructed the jury that the determination of the extent of punishment rests exclusively within the discretion of the trial judge, not the jury.
3) The habitual offender statute, Section 775.084, Florida Statutes (1975), requires that a separate proceeding be conducted to determine whether, for the protection of the public, it is necessary to sentence the defendant to an enhanced term. Thus, when the trial judge is instructing the jury regarding the possible penalties if the defendant is convicted, the judge does not know whether the defendant will, in fact, be determined to be a habitual offender in the subsequent proceeding.

The Supreme Court of Florida granted cer-tiorari as a result of the conflict between Stern and Nappier and approved both “the rationale and holding” of the Second District’s Nappier decision. See Nappier v. State, 363 So.2d 803 (Fla.1978). Appellant contends Nappier could be distinguished on its facts, but we disagree. The first reason relied upon in Nappier may or may not be applicable in every case. For example, in the case at bar the jury already knew of appellant’s seven prior convictions. However, the second and third reasons are always valid; and we believe the third reason, standing alone, is sufficient to make the Nappier rule preferable. Finally, the Supreme Court in Nappier did not just approve the Second District .holding based upon the facts of that ease; it also approved the rationale underlying the holding. Accordingly, we find no merit in appellant’s third point.

For the foregoing reasons we affirm the judgment and sentence appealed from.

AFFIRMED.

ANSTEAD and MOORE, JJ., concur.


text:
    Jack MORGAN, Appellant, v. STATE of Florida ex rel. Robert L. SHEVIN, Attorney General of the State of Florida, Appellee.
    No. 77-2327.
    District Court of Appeal of Florida, Fourth District.
    May 14, 1980.
    Michael I. Schwartz of Slepin & Schwartz, Tallahassee, for appellant.

      Robert L. Shevin, Atty. Gen., and Richard A. Hixson, Asst. Atty. Gen., Tallahassee, for appellee.
   DOWNEY, Judge.

This appeal involves the propriety of a final judgment directing the issuance of a peremptory writ of mandamus commanding appellant, Jack Morgan, to produce certain public records pursuant to Chapter 119, Florida Statutes (1977).

The issues were presented to the trial court upon a stipulation of counsel for the parties. Paraphrased in pertinent part the stipulation states that appellant, Morgan, is employed by the Florida Board of Medical Examiners, Department of Professional and Occupational Regulations, as an investigator for the Board with the responsibility for investigating complaints and acting as custodian of certain Board records. This stipulation states that on May 25, 1977, Robert L. Shevin, as Attorney General, made demand upon Morgan to produce for public inspection and examination the following records within his custody:

10. * * *
A. All letters of complaint and documents attendant thereto in the possession of the Respondent, submitted to the Board by the public which form the basis for an investigation by the Board.
B. All uniform complaint forms as identified in § 455.013, Florida Statutes.

The stipulation then sets forth the contentions of the parties-as follows:

11. It is Petitioner’s position that the materials requested are public records within the scope of Chapter 119, Florida Statutes, which are not statutorily or otherwise exempted from the operation of the statute and therefore subject to public inspection.
12. It is Respondent’s position that the materials requested are exempted from the operation of Chapter 119, both by § 455.08, Florida Statutes, and by public policy.

There are several statutory provisions which affect the decision of this case. First of all, in Chapter 119, known as the Public Records Act, Section 119.01, Florida Statutes (1977), provides:

119.01 General State policy on public records. — It is the policy of this state that all state, county, and municipal records shall at all times be open for a personal inspection by any person.

Section 119.07, Florida Statutes (1977), in pertinent part provides:

(1) Every person who has custody of public records shall permit the records to be inspected and examined by any person desiring to do so, at reasonable times, under reasonable conditions, and under supervision by the custodian of the records or his designee. The custodian shall furnish copies or certified copies of the records upon payment of fees as prescribed by law or, if fees are not prescribed by law, upon payment of the actual cost of duplication of the copies. Unless - otherwise provided by law, the fees to be charged for duplication of public records shall be collected, deposited, and accounted for in the manner prescribed for other operating funds of the agency.
(2)(a) All public records which presently are provided by law to be confidential or which are prohibited from being inspected by the public, whether by general or special law, shall be exempt from the provisions of subsection (1).

Secondly, Chapter 455, Florida Statutes (1977), which contains general provisions applicable to Administrative Boards, in material part, provides in Section 455.013:

(1) The Department of Professional and Occupational Regulation is authorized and directed to establish uniform procedures by which complaints may be made to, or reports received by, any licensing board or any program of professional or occupational licensing within the department with regard to any person or business licensed by the department, or any licensing board within the department. The uniform procedures shall encompass, but not be limited to, creation and maintenance of a uniform complaint form and a uniform complaint report form, the latter form to require the following information:
(a) The agency or licensing board which received the complaint;
(b) The nature of the complaint;
(c) Any investigative action taken;
(d) Any legal action taken;
(e) Any disciplinary action taken; and
(f) An estimate of the cost to the agency or licensing board of all actions taken with regard to the complaint.
(2) Upon receipt of any complaint with regard to any person or. business licensed by the department or by any program of professional or occupational licensing within the department, the appropriate licensing board or departmental agency shall compile and maintain the information required by the uniform complaint report form until the complaint has been reviewed and the form completed. Each licensing board or departmental agency shall report semi-annually to the secretary all complaints received by that board or agency and shall include within the report a copy of the uniform complaint report form maintained with regard to that complaint.

Section 455.08 contains an exemption which is set forth in pertinent part here:

Investigative reports and records made or received by a board or agency in or representing the Department of Professional and Occupational Regulation shall be exempt from the provisions of s. 119.07, unless the board or agency has found probable cause to commence formal action.

There does not appear to be any dispute that the records in question are public records covered by Chapter 119, Florida Statutes (1977). Thus, the narrow issue to be decided is whether the provisions of Section '455.08 exempted the records in question from public inspection absent a finding of probable cause.

One of appellant’s arguments, the most easily disposed of, is that these records should not be made available for public inspection as a matter of public policy. It. seems to us the public policy argument is no longer open for debate in Florida. In News-Press Pub. Co. v. Wisher, 345 So.2d 646 (Fla.1977), the Supreme Court, reaffirming State ex rel. Cummer v. Pace, 118 Fla. 496, 159 So. 679 (1935), made it clear that only the Legislature can create exceptions to the Public Records Act; the courts may not find exceptions by implication. In State ex rel. Veale v. City of Boca Raton, 353 So.2d 1194 (Fla. 4th DCA 1978), this court, quoting from a Texas case, made the same point:

“ ‘Absent such a provision, we do not believe that a court is free to balance the public’s interest in disclosure against the harm resulting to an individual by reason of such disclosure. This policy determination was made by the Legislature when it enacted the statute.’ ” (Emphasis omitted.) 353 So.2d at 1197.

Following the lesson of those cases we decline to try to discover any public policy argument differing from the legislative mandate.

We are much more impressed with appellant’s argument that the legislative intent in passing Section 455.08 was to keep confidential all records involved with complaints and investigations thereof which pertain to an individual licensed by the Board until probable cause for formal action is found to exist.

The obvious purpose of the exemption in Section 455.08 is to protect.licensees from unfounded complaints which might do irreparable damage to the individual licensee. The Legislature in its wisdom determined that it is time enough to make the records public when and if the Board finds probable cause to commence formal action. This legislative purpose would be thwarted if appel-lee prevails here because every crank complaint filed with the Board would be subject to public inspection while subsequent investigative reports which demonstrate no substance to a complaint, and thus no probable cause to proceed, would not be subject to public inspection. Therefore, we conclude that Section 455.08, Florida Statutes (1977), exempting “investigative reports and records made or received by a board or agency” includes complaints and uniform complaint forms provided for in Section 455.013, Florida Statutes (1977).

Although we arrive at the foregoing conclusion independently, by considering solely what we perceive to be the legislative intent, we are reassured by the 1979 amendment to Section 455.013, wherein the Legislature provided:

(9) The complaint and all information obtained pursuant to the department’s investigation shall be exempt from s. 119.07 until 10 days after probable cause has been found to exist by the probable cause panel or by the department, or until the regulated professional or subject of the investigation waives his privilege of confidentiality, whichever occurs first.

This clarification of Section 455.013 leaves no doubt that the Legislature intends to exempt from public disclosure the entire investigation process from the receipt of a complaint until 10 days after probable cause is found, if such cause is found to exist. If probable cause is found to exist the exemption ceases. We note that the trial judge did not have the benefit of the foregoing amendment when he entered the judgment in question.

In view of the foregoing, the judgment appealed from is reversed and the cause is remanded to the trial court for further proceedings, if they are appropriate, or for the entry of judgment for appellants.

REVERSED AND REMANDED, with directions.

HERSEY and GLICKSTEIN, JJ., concur.


author: BERANEK, Judge. LETTS, Chief Judge,

text:
    Jack NAJOR and Dorothy Najor, his wife, Appellants, v. Lawrence J. MEYER, Trustee, Appellee.
    No. 78-920.
    District Court of Appeal of Florida, Fourth District.
    May 14, 1980.
    Michael K. Davis of Watson, Hubert & Davis, Fort Lauderdale, for appellants.
    Jerald C. Cantor of Meyer, Leben, Fixel & Cantor, P. A., Hollywood, for appellee.
   BERANEK, Judge.

Appellants/defendants seek reversal of a final judgment entered after a jury verdict. Appellee/plaintiff sued defendants alleging that plaintiff and defendants had been parties to a real estate contract. Plaintiff was the prospective buyer and defendants the sellers. Plaintiff intended to build a bank on the real estate and had an application pending before state agencies for approval of the bank charter. The parties entered into a contract whereby defendants agreed to sell plaintiff approximately eight acres of choice real estate. The contract was signed providing for a closing date approximately one year from the date of the contract with a $20,000 deposit. The bank charter application was delayed and as the end of the one-year contract period approached, plaintiff sought an extension from defendants. Defendants were not desirous of giving the extension but finally agreed to do so. In return for a five-month extension an additional $70,000 deposit was made by plaintiff and the overall purchase price of the property was increased. The final contract between the parties clearly provided the entire $90,000 was to be forfeited by plaintiff and kept by defendants as liquidated damages in the event the property was not bought by plaintiff. Eventually, the bank charter application was denied and the entire project was abandoned.

Plaintiff filed suit asserting the $90,000 was actually a penalty and unenforceable. Defendants answered relying upon the liquidated damage provision of the contract as being valid and enforceable. Defendants denied the $90,000 was a penalty. For unknown reasons, this case was tried before a jury. Although the case was more properly a matter for consideration by the court alone, no one objected. The jury eventually returned a verdict in favor of the plaintiff for $30,000.

It was not clear exactly what issues the jury determined. From our review of the complete record, it appears the court found as a matter of law that the contract provision was a penalty and so instructed the jury. The court reached this conclusion based upon Hutchison v. Tompkins, 259 So.2d 129 (Fla.1972). Both plaintiff and defendants moved for directed verdict and although the trial court indicated that it was denying both motions, it did in fact grant at least a partial directed verdict in favor' of the plaintiff by instructing the jury that the liquidated damages provision of the contract was in fact a penalty and unenforceable. Although defendants did riot have a counterclaim for actual damages, the trial court instructed the jury that the actual damages sustained by the vendor were recoverable.

We conclude that the trial court erred in entering a directed verdict in favor of the plaintiff. Under Hutchinson v. Tompkins, supra, this was an enforceable liquidated damages provision in a real estate contract. In Bruce Builders, Inc. v. Goodwin, 317 So.2d 868 (Fla. 4th DCA 1975), this Court stated as follows:

If the damages are ascertainable on the date of the contract, the clause is a penalty and unenforceable; if they are not so ascertainable, the clause is truly one for liquidated damages and enforceable; however, if subsequent circumstances demonstrate it would be unconscionable to allow the seller to retain the sum in question as liquidated damages, equity may relieve against the forfeiture.

Here the damages as to the vendor were not ascertainable at the time the contract was signed and in accordance with Hutchison v. Tompkins, supra, and Bruce Builders, Inc. v. Goodwin, supra, the clause should have been considered as one for liquidated damages. The trial court ruled directly to the contrary and in so doing committed error. Once again the case is rather perplexing because unconscionability of a contract provision is purely a matter within the equity prerogative of a court sitting without a jury.

We conclude that the trial court erred in granting the partial directed verdict in plaintiff’s favor. Pursuant to this ruling, the court erroneously instructed the jury as a matter of law that the contract provision was not a liquidated damages clause but was instead an unenforceable penalty. The jury verdict based on the partial directed verdict was thus improper as was the judgment entered thereon.

The final judgment is vacated and the cause is remanded with directions for the trial court to enter an order finding the contract provision to be for liquidated damages and to take further testimony if necessary without a jury to determine the issue of unconscionability and enter judgment against defendant for such sums as are found to be unconscionable, if any. This opinion should not be construed as a ruling on unconscionability as we do not reach this issue.

REVERSED AND REMANDED.

DOWNEY, J., concurs.

LETTS, C. J., dissents with opinion.

LETTS, Chief Judge,

dissenting:

I have no quarrel with the reasoning of the majority opinion. However, there was a plethora of errors committed during the trial of this cause which have not in my opinion been preserved on appeal. There is a very recent case from our Supreme Court which states:

“Even when based on erroneous reasoning, a conclusion or decision of a trial court will generally be affirmed if the evidence or an alternative theory supports it.” Applegate v. The Barnett Bank of Tallahassee, 377 So.2d 1150 (Fla.1979).

I do not contend that Applegate is on all fours, but it does reinforce the proposition that the trial court should be affirmed when the record is inadequate to support a reversal. As I see it, particularly so in a civil case, we are not supposed to be the vehicle by which all unobjected to errors are nevertheless preserved and rewarded by a trial de novo.

I would affirm.


author: HURLEY, Judge. LETTS, Chief Judge,

text:
    Gina FERRANTE, Appellant, v. Jon E. WATERS and Charles McDade, Appellees.
    No. 78-1264.
    District Court of Appeal of Florida, Fourth District.
    May 14, 1980.

      Robert P. Kelly of Pyszka, Kessler & Adams, Fort Lauderdale, for appellant.
    Dale R. Sanders of Lyons & Sanders, Fort Lauderdale, and Kenneth R. Mikos of Friedrich, Kersten, Blackwell & Mikos, Fort Lauderdale, for appellees.
   HURLEY, Judge.

This is an interlocutory appeal from an order striking appellant’s pleadings and granting a default judgment on liability in favor of the appellees. We affirm.

Plaintiffs/appellees filed an action for damages as a result of personal injuries sustained in an automobile accident. The complaint alleged that appellant/defendant Ferrante authorized another person to use her leased automobile and was present in the vehicle at the time of the collision. Service of process was effected upon Fer-rante, a New York resident, in accord with Sections 48.161 and 48.171, Florida Statutes (1977). Thereafter, she filed an answer wherein she denied authorizing or consenting to the use of her vehicle at the time of the collision.

Interrogatories were sent to Ferrante’s attorney on November 8, 1977. Defense counsel responded by filing an objection to certain interrogatories which in turn resulted in plaintiffs’ filing a motion to compel. While these motions were pending, Fer-rante filed a motion for protective order to require that her deposition be set in New York and a motion for extension of time to respond to discovery. On January 10, 1978, the trial court entered an omnibus order which among other things, granted Fer-rante’s motion for protective order and her motion for extension. The court also granted plaintiffs’ motion to compel and directed that interrogatories be answered within fifteen days.

Ferrante failed to respond in any fashion and so, on January 27, 1978, plaintiffs filed a motion for sanctions. Defense counsel filed an affidavit in opposition. He stated that he had mailed the interrogatories to his client at her last known address in New York and thereafter had written letters encouraging her to comply with the court’s order by preparing rough-draft responses. None of this correspondence was returned, but two subsequent certified letters were returned “unclaimed”. The record does not reflect when the trial court heard plaintiffs’ motion for sanctions, but it is unrefuted that Ferrante failed to comply and so, on May 8, 1979, the trial judge entered an order striking Ferrante’s pleadings and entering a default against her on the issue of liability.

Rule 1.380(b)(2)(C) Fla.R.Civ.P., authorizes a court to strike pleadings and/or enter a default for noncompliance with an order compelling discovery. The proper application of the rule, however, is dependent upon several interrelated principles. The first stems from the recognition that such measures are the most severe of all possible sanctions and therefore should be employed only in extreme circumstances. Hart v. Weaver, 364 So.2d 524 (Fla.2d DCA 1978). Put another way, the severity of the sanction must be commensurate with the violation. Travelers Ins. Co. v. Rodriquez, 357 So.2d 464 (Fla.2nd DCA 1978). While each case must be evaluated on its own facts, the courts have developed broad characterizations of the type of conduct which will justify such sanctions. Hart v. Weaver, supra, speaks of violations which are “flagrant, persistent or willful or otherwise aggravated.” “[A] deliberate and contumacious disregard of the court’s authority,” is the standard set forth in Swindle v. Reid, 242 So.2d 751 (Fla.4th DCA 1970), and Herold v. Computer Components International, Inc., 252 So.2d 576 (Fla.4th DCA 1971), lists “bad faith,” “willful disregard of or with gross indifference to an order of the court,” or conduct which evinces “deliberate callousness”.

All of the foregoing must be considered in conjunction with the general principle that the decision to impose sanctions, and the severity thereof, are matters within the sound discretion of the trial court. Turner v. Anderson, 376 So.2d 899 (Fla.2nd DCA 1979); W.G.C., Inc. v. The Man Co., 360 So.2d 1152 (Fla.3rd DCA 1978). The exercise of this discretion will not be disturbed absent a clear showing of abuse. Hart v. Weaver, supra.

The record in the case at hand portrays a six month lapse (November 7, 1977 —May 8, 1978) during which the defendant Ferrante totally fáiled to comply with the court’s order compelling discovery. Irrespective of whether her failure came as the result of a deliberate decision to disregard the court’s order, or simply from a negligent abandonment of the lawsuit in which she had been served and had filed answer, we are of the opinion that such conduct falls squarely within the above-cited case authorities and amply justifies the action of the trial court. See E.Z.E., Inc. v. Little River Bank & Trust Co., 300 So.2d 43 (Fla.4th DCA 1974) and Herold v. Computer Components International, Inc., supra. Accordingly, the order appealed is

AFFIRMED.

DOWNEY, J., concurs.

LETTS, C. J., concurring specially with opinion.

LETTS, Chief Judge,

concurring specially:

I agree with the opinion as written, but find it worthwhile to emphasize what constitutes the “deliberate and contumacious disregard of the Court’s authority,” the “bad faith,” the “wilful disregard” of the Court’s order and the “deliberate callousness.”

The facts reported by Judge Hurley accurately reflect that it is conceivable that the wayward defendant never received the unanswered correspondence or the interrogatories. Even if she did not, her conduct is still a deliberate and contumacious or wilful disregard of the Court’s order. The defendant was served, filed an answer, moved for protective orders and so forth. She was properly before the court and this being so, she cannot execute an unexplained disappearing trick for six months and expect to get away with it. Those properly before a court have an affirmative duty to litigate- or face the consequences for gross indifference.


text:
    John Gilbert DELUCA, Appellant, v. STATE of Florida, Appellee.
    No. 78-2705.
    District Court of Appeal of Florida, Fourth District.
    May 14, 1980.

      Richard L. Jorandby, Public Defender, and Jon May, Asst. Public Defender, West Palm Beach, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, Joy B. Shearer, Asst. Atty. Gen., and Michael W. Strickland, Certified Legal Intern, West Palm Beach, for appellee.
   PER CURIAM.

Appellant’s probation was revoked for failure to pay costs of supervision, failure to pay costs of extradition, and failure to live and remain at liberty without violating any law. The last mentioned violation stems from the commission of a lewd and lascivious act and possession of stolen property. We find the evidence insufficient to establish that appellant was able to pay the costs of his supervision and extradition, and remand with direction that those violations be stricken from the order. Smith v. State, 380 So.2d 1175 (Fla. 4th DCA 1980); Porter v. State, 380 So.2d 523 (Fla. 4th DCA 1980).

However, we conclude that appellant’s remaining points on appeal are without merit. Accordingly, we affirm the order revoking appellant’s probation in all other respects.

AFFIRMED AS MODIFIED.

BERANEK, GLICKSTEIN and HURLEY, JJ., concur.


author: HERSEY, Judge.

text:
    STATE of Florida, Appellant, v. Tommy Lee SHERROD, Appellee.
    No. 79-586.
    District Court of Appeal of Florida, Fourth District.
    May 14, 1980.

      Jim Smith, Atty. Gen., Tallahassee, and Benedict P. Kuehne, Asst. Atty. Gen., West Palm Beach, for appellant.
    Alan H. Schreiber, Public Defender, and Channing E. Brackey, Asst. Public Defender, Fort Lauderdale, for appellee.
   HERSEY, Judge.

Appellant, Tommy Lee Sherrod, was charged by Information with possession of cocaine in violation of Sections 893.-03(2)(a)(4) and 893.13(l)(e), Florida Statutes (1977). After two jury trials resulted in mistrials, the trial court entered an order “ . . . on its own motion that the charges against the defendant be and the same are hereby dismissed with prejudice.” The State appeals from this order.

We- address initially the question of whether this Court has jurisdiction. Rule 9.140(c), Florida Rules of Appellate Procedure permits an appeal from an order dismissing an Information. The instant dismissal with prejudice to future prosecution, while resembling a judgment of acquittal which we have no jurisdiction to review, State v. Brown, 330 So.2d 535 (Fla. 1st DCA 1976), is not, in fact or form, a judgment of acquittal. Accordingly, we treat it as an order dismissing an Information and address the merits from that perspective.

The trial court gave no indication that the order resulted from a finding that the evidence was insufficient to warrant a conviction. In addition, the defendant made no motion for judgment of acquittal. In the event a.jury cannot reach a verdict, the trial court should declare a mistrial, discharge the jury and set the case for retrial. Fla.R.Crim.P. 3.560(b); Smith v. State, 135 Fla. 835, 186 So. 203 (1939); Johnson v. State, 54 Fla. 45, 44 So. 765 (1907).

We therefore find that the trial court was without authority to enter the order of dismissal. Concluding that the order was erroneously entered, we are confronted with the argument that the order was the substantial equivalent of an acquittal and that the constitutions of the United States and the State of Florida prohibit placing an individual twice in jeopardy for the same offense. Amend. V, U.S.Const., Art. I, § 9, Fla.Const. The consequence of accepting this argument is that the order of dismissal may not be reversed because the retrial which would necessarily follow would constitute double jeopardy. However, where a mistrial occurs there is no “formal jeopardy” to bar subsequent prosecution for the same offense. Smith v. State, supra. This is true even in the event of three mistrials. State v. Dowling, 91 Fla. 236, 107 So. 267 (1926). As we said in Sayan v. State, 381 So.2d 363 (Fla. 4th DCA 1980):

After a mistrial, a case stands as if it had never been tried and the defendant is subject to being tried again on the same charge.

Conceding as we have that the order under review goes beyond a simple declaration of mistrial and is in the nature of an acquittal, we determine that the trial court departed from the essential requirements of law in entering that order. We further conclude that since the order was entered under those circumstances, jeopardy has not attached to prevent the defendant from being tried again for the same offense.

The Second District, in State v. Vinson, 320 So.2d 50 (Fla. 2d DCA 1975), reached a similar result. That court granted a common law writ of certiorari to review a trial court’s order entered pursuant to an eviden-tiary hearing finding defendant not guilty and discharging him from prosecution. The Supreme Court, in Vinson v. State, 345 So.2d 711 (Fla.1977), affirmed the district court’s conclusion that the trial court departed from the essential requirements of law to the irrevocable prejudice of the state and that jeopardy had not attached. The court held that double jeopardy sanctions come to fruition only if the court properly acts in a manner within its jurisdiction and authority.

Having concluded that the order appealed from was beyond the authority of the trial court, we reverse the order dismissing the Information with prejudice and remand the cause with instructions to set the case for retrial.

DOWNEY and ANSTEAD, JJ., concur.


author: ANSTEAD, Judge.

text:
    Charles Henry BROWN, Appellant, v. Louie L. WAINWRIGHT, Secretary, Department of Correction, Appellee.
    No. 79-1548.
    District Court of Appeal of Florida, Fourth District.
    May 14, 1980.
    Charles Henry Brown, in pro. per.
    Jim Smith, Atty. Gen., Tallahassee, and Ondina Felipe, Asst. Atty. Gen., West Palm Beach, for appellee.
   ANSTEAD, Judge.

The appellant filed a petition for writ of habeas corpus claiming that he was illegally incarcerated in Palm Beach County. See Olcott v. State, 378 So.2d 303 (Fla.2d DCA 1979); Shead v. State, 367 So.2d 264 (Fla.3d DCA 1979). The trial court denied the petition on the grounds that it was without authority to grant the relief to which the appellant was apparently entitled, namely resentencing. In its order denying the petition the trial court noted that the appellant could file a motion for post-conviction relief in the court where he was originally sentenced in Dade County. We agree with the trial court.

The appellant was placed on probation for ten years by a circuit judge in Dade County and by a special condition of probation was ordered to serve six years in prison. The Third District Court of Appeal has held that such a “sentence” is illegal and requires resentencing. Shead v. State, supra. The trial court here, on an application for petition for writ of habeas corpus, was without authority to resentence the appellant or to order his release. Accordingly, the order denying the petition for writ of habeas corpus indicating that appellant should file a motion for post-conviction relief was correct and we affirm.

AFFIRMED.

LETTS, C. J., and GLICKSTEIN, J., concur.

      . An application for writ of habeas corpus in behalf of a prisoner who is authorized to apply for relief by motion pursuant to this rule, shall not be entertained if it appears that the applicant has failed to apply for relief, by motion, to the court which sentenced him, or that such court has denied him relief, unless it also appears that the remedy by motion is inadequate or ineffective to test the legality of his detention. Fla.R.Crim.P. 3.850.


text:
    Gail Susan BONIFAY, Appellant, v. John O. BONIFAY, Appellee.
    No. 79-1903.
    District Court of Appeal of Florida, Fourth District.
    May 14, 1980.
    Jon Jay Ferdinand of Law Offices of Paul L. Backman, Hollywood, for appellant.
    No appearance for appellee.
   PER CURIAM.

We believe the trial court erred in directing in the final judgment of dissolution that the marital house of the parties be sold. The pleadings were insufficient to sustain an ordér of partition; and even if partition had been properly requested, the court would have been bound to proceed in accordance with the provisions of Chapter 64, Florida Statutes (1979) as to the manner of sale. Sanders v. Sanders, 351 So.2d 1126 (Fla. 2d DCA 1977); Niemann v. Niemann, 294 So.2d 415 (Fla. 4th DCA 1974), cert. discharged 312 So.2d 733 (Fla.1975). Accordingly, the final judgment is reversed and remanded with directions for further proceedings in accordance with this opinion.

ANSTEAD, MOORE and BERANEK, JJ., concur.


author: BERANEK, Judge.

text:
    In re The ESTATE of John W. FINCH, Deceased.
    No. 79-2404.
    District Court of Appeal of Florida, Fourth District.
    May 14, 1980.

      Stephen J. McDonald of Hodges, Gossett & McDonald, P. A., Hollywood, for appellant.
    Robert I. MacLaren, II of Osborne & Hankins, Boca Raton, for appellee.
   BERANEK, Judge.

This is an appeal from an order setting aside homestead property. We affirm.

The parties to this appeal concede that the real estate in question was homestead property and that the descent of such property is governed by Article X, Section 4(c) of the Florida Constitution. At the time of his death, decedent, John W. Finch, was survived by his spouse and two lineal descendants, his adult daughters. His will' provided in relevant part as follows:

My condominium apartment identified as Unit 9-303, Boca Bayou III, a condominium, located at 9 Royal Palm Way, Boca Baton, Palm Beach County, Florida, together with my rights and undivided interest in the common property according to the Declaration of Condominium, I devise to my wife, MADELINE F. FINCH, during her life and after her death to my daughter, JUDY LYNN FINCH, in fee simple and absolutely. And I direct that my wife shall during her life at her own expense keep the apartment in good repair and condition, pay the taxes, assessments and insurance premiums thereon and comply with all terms, conditions and covenants provided for in the Declaration of Condominium.

The attempted devise of the condominium was to his wife for life with remainder to one daughter. The surviving spouse, Madeline F. Finch, moved to set aside the devise as homestead real estate. Her petition alleged that the property in question was homestead, that decedent was survived by a spouse and lineal descendants, and that the property should descend as provided in Section 732.401(1), Florida Statutes (1977).

The trial court considered the petition to set aside homestead and granted it over the objection of appellant, Judy Lynn Finch. An order was entered on November 27, 1977, finding as follows:

(2) JOHN W. FINCH being survived by a spouse and lineal descendants, the homestead passes under the provisions of Florida Probate Code 732.401(1) as follows:
A life estate to JOHN W. FINCH’s surviving spouse, with remainder in JOHN W. FINCH’s lineal descendants in being at the time of his death, JUDY LYNN FINCH and SUZANNE FINCH MOUSSER.

Article X, Section 4(c), Florida Constitution, provides as follows:

(c) The homestead shall not be subject to devise if the owner is survived by spouse or minor child, except the homestead may be devised to the owner’s spouse if there be no minor child. The owner of homestead real estate, joined by the spouse if married, may alienate the homestead by mortgage, sale or gift and, if married, may by deed transfer the title to an estate by the entirety with the spouse. If the owner or spouse is incompetent, the method of alienation or encumbrance shall be as provided by law.

Similarly, Section 732.4015, Florida Statutes (1977), states:

As provided by the Florida Constitution, the homestead shall not be subject to devise if the owner is survived by a spouse or minor child, except that the homestead may be devised to the owner’s spouse if there is no minor child.

If a devise violates the Florida Probate Code and Constitution, it descends under Section 732.401(1), Florida Statutes (1977), as follows:

(1) If not devised as permitted by law and the Florida Constitution, the homestead shall descend in the same manner as other intestate property; but if the decedent is survived by a spouse and lineal descendants, the surviving spouse shall take a life estate in the homestead, with a vested remainder to the lineal descendants in being at the time of the decedent’s death.

Appellant contends that the intent of the testator was to provide his wife with a life estate and the daughter of his choosing with a vested remainder interest, and that neither the statutes nor Constitution should frustrate this expressed intent. We hold that where a testator dies leaving a surviving spouse and adult children, the property may not be devised by leaving less than a fee simple interest to the surviving spouse. The Constitution states, “. . . except the homestead may be devised to the owner’s spouse if there be no minor children.” This exception is exclusive and prohibits the testator from devising less than a fee simple interest to his surviving spouse under the circumstances presented herein. Since the devise here was not a permitted one under the Constitution, the property passed in accordance with Section 732.401(1), Florida Statutes (1977). The order of the trial court is affirmed.

AFFIRMED.

MOORE and HURLEY, JJ., concur.


author: GLICKSTEIN, Judge. HERSEY, Judge,

text:
    A. F., a child, Petitioner, v. Honorable Philip G. NOURSE, Circuit Court Judge, in and for the Nineteenth Judicial Circuit, etc., Respondent.
    No. 80-189.
    District Court of Appeal of Florida, Fourth District.
    May 14, 1980.

      Howardene Garrett, Asst. Public Defender, and Moría R. Malmad, Asst. Public Defender Intern, Fort Pierce, for petitioner.
    Margaret Mann Blanton, Asst. State’s Atty., Fort Pierce, for respondent.
   GLICKSTEIN, Judge.

Upon the filing of a petition for writ of prohibition, we issued an order to show cause. This cause is now before us upon the petition, the response to our order to show cause, and petitioner’s reply.

Petitioner was arrested for burglary on September 4, 1979. A petition was filed in' the Circuit Court of the Nineteenth Judicial Circuit, Juvenile Division, St. Lucie County, Florida, on October 28, 1979, charging petitioner with burglary of a dwelling. Petitioner was arraigned on December 3, 1979, at which time a plea of not guilty was entered, the public defender was appointed, and adjudication hearing was set for January 8, 1980.

On January 7, 1980, petitioner moved to dismiss the petition on the ground that petitioner’s adjudication hearing had not been held within ninety days of his arrest as required by Section 39.05(7), Florida Statutes (1979), which provides:

If a petition has been filed alleging a child to be delinquent, the adjudicatory hearing on the petition shall be commenced within 90 days of the earliest of the following dates:
1. The date the child was taken into custody.
2. The date the petition was filed. (b) If the adjudicatory hearing is not begun within 90 days or an extension thereof as hereinafter provided, the petition shall be dismissed with prejudice.
(c) The court may extend the period of time prescribed in paragraph (a) on motion of any party, after hearing, on a finding of good cause or that the interest of the child will be served by such extension. The order extending such period shall recite the reasons for such extension. The general congestion of the court’s docket, lack of diligent preparation, failure to obtain available witnesses, or other avoidable or foreseeable delays shall not constitute good cause for such extension.

Petitioner’s motion was denied as was his oral motion for rehearing, and the adjudicatory hearing was re-set for February 5, 1980. This petition followed.

The response to our order to show cause alleges there was no objection by defense counsel to the setting of the adjudicatory hearing more than ninety days after petitioner’s arrest. Petitioner alleges in his reply:

The following exchange took place before the trial court on December 3, 1979, the date the Petitioner, A. F., was arraigned:
Assistant Public Defender: My client, A.F., is charged with Burglary of a Dwelling. At this time I enter a plea of not guilty and request a trial in this matter.
The Court: Okay that will be set for January 8, 1980. Be sure you keep the appointment with the Public Defender. She will write you a letter . (unintelligible) .
A short exchange followed between the juvenile’s mother and the Court and the next case was called. Defense counsel did not make any statements at all concerning the trial date. ....

We accept the representations made in the response and reply as accurate and decide accordingly.

The facts appear to be governed by the decision in State v. Ansley, 349 So.2d 837, 839 (Fla. 1st DCA 1977), cert. den. 359 So.2d 1220 (Fla.1978), wherein the court held:

We hold that mere silence alone on the part of the defendant or his counsel at a proceeding in which the defendant’s trial date is set beyond the speedy trial period is not a waiver pursuant to Fla.R.Crim.P. 3.191(d)(2)(i).

See also, Stuart v. State, 360 So.2d 406 (Fla.1978).

There being no extension of time granted the state pursuant to Section 39.05(7)(c), Florida Statutes (1979), the petition should have been dismissed with prejudice.

We have considered respondent’s argument that petitioner’s motion was filed more than seven (7) days after arraignment contrary to the trial court’s instruction to all counsel for the defense, on December 18, 1979, that the future permitted practice in the court would be to file all defensive motions within seven (7) days of arraignment and conclude that this fact should not alter our judgment in this particular case, the procedure having been adopted after the trial court lost jurisdiction to adjudicate the petitioner.

It is therefore ordered that a peremptory writ of prohibition issue, and the petitioner be forever discharged from further response to the charge herein.

ANSTEAD, J., concurs.

HERSEY, J., concurs specially, with opinion.

HERSEY, Judge,

concurs specially.

It is not without some reluctance that 1 concur with the majority opinion. In State v. Nelson, 320 So.2d 835 (Fla. 2d DCA 1975) the court determined that acceptance by defense counsel in open court of a trial date beyond the expiration of the period under the applicable speedy trial rule constituted a waiver. Our Supreme Court, in Stuart v. State, 360 So.2d 406 (Fla.1978), refused to broaden the basis for waiver to include “failure to object or to point out that the date would be beyond the period.” For my own part I find it difficult to differentiate between an oral “acceptance” and “acquiescence” by silence. Defense counsel, after all, remains an officer of the court. An accused is entitled to a reasonably expeditious disposition of charges against him. This is a constitutional right which counsel is duty-bound to protect at all reasonable costs. The accused has no right, of which I am aware, to speedy release without trial. Ipso facto counsel has no duty to safeguard that non-existent right. Counsel should not be encouraged to invite error or, if that phrase misses the mark by inches, to acquiesce in error. Society, as well as an individual accused, has rights which merit our attention. Acquittal of an accused under the circumstances of this case is, in my considered judgment, neither constitutionally mandated nor philosophically justifiable. For these reasons, and, as succinctly, and I believe, persuasively, stated by Chief Judge Boyer, concurring specially in State v. Ansley, 349 So.2d 837, (Fla. 1st DCA 1977), I would deny the petition had we the authority to do so.


author: DANAHY, Judge.

text:
    Donald W. HARTENSTEIN, Appellant, v. FLORIDA DEPARTMENT OF LABOR AND EMPLOYMENT SECURITY, Unemployment Appeals Commission and Southern Tire Company, Appellees.
    No. 79-1594.
    District Court of Appeal of Florida, Second District.
    May 14, 1980.

      Gardner W. Beckett, Jr., of Nelson, Beckett & Nelson, St. Petersburg, for appellant.
    James R. Parks and A. Robert Whaley, Tallahassee, for appellees.
   DANAHY, Judge.

An unemployment compensation appeals referee held that petitioner was discharged for work related misconduct pursuant to Section 443.06, Florida Statutes (1977), and, therefore, was not entitled to receive unemployment compensation benefits. Upon review, the Unemployment Appeals Commission affirmed the referee and adopted his decision. Because we find the decision is not supported by competent substantial evidence, we grant the petition for review and remand this cause with directions to enter an order allowing petitioner’s claim.

The sole evidence relied upon by the referee was a letter submitted by petitioner’s employer in which he described two examples of alleged misconduct by petitioner. One example was petitioner’s irregular work schedule and the other was petitioner’s request for time off from work. Under the circumstances of this case, neither example, nor a combination of both, constitutes work related misconduct within the meaning of Section 443.06.

Petitioner was employed in May, 1978, as a bookkeeper by Southern Tire Company (the employer) and was scheduled to work 8:00 a. m. to 5:00 p. m., Monday through Friday. At the time of his employment, he was working on a part-time basis for an accounting firm. In January, 1979, petitioner informed the employer, that he would need to change his hours to accommodate this part-time employment and the employer made no objection as long as his work got done. With the employer’s permission, petitioner extended his lunch break to work at the second job, worked until 6:00 p. m., and also worked on Saturdays. During at least one week, however, petitioner worked less than a full forty hours. The practice of working irregular hours continued for three and one-half months until the tax season ended.

Before work on Monday morning, April 16, 1979, the day the tax season ended and the day petitioner was to resume his regular schedule, he learned that his father had died in another state and that the funeral would be on Wednesday, April 18. When he reported to work that Monday morning, petitioner told the employer that he needed a few days off but did not explain that the reason was to attend his father’s funeral. When petitioner phoned the employer later in the day, the employer informed him he was discharged. During that conversation, petitioner explained the reason he needed the several days off and the employer refused to reconsider or discuss the matter further. Petitioner testified he might not have gone to his father’s funeral if the employer had refused to give him the time off instead of firing him summarily.

Petitioner filed his claim pursuant to Chapter 443, Florida Statutes (1977), which provides benefits for persons unemployed through no fault of their own. The statute expressly disqualifies a person for benefits if that person has been discharged “for misconduct connected with his work.” The statutory provisions define misconduct to include:

(a) Conduct evincing such willful or wanton disregard of an employer’s interests as is found in deliberate violation or disregard of standards of behavior which the employer has the right to expect of his employee; or
(b) Carelessness or negligence of such a degree or recurrence as to manifest culpability, wrongful intent, or evil design, or to show an intentional and substantial disregard of the employer’s interests or of the employee’s duties and obligations to his employer.

§ 443.06(9).

The employer contends petitioner may not qualify for benefits under the act because he was discharged for work related misconduct consisting of (1) working less than a regular forty hour week and (2) seeking time off to attend his father’s funeral, or (3) a combination of the foregoing. We disagree.

Unless an employer expressly disapproves an employee’s irregular schedule, that schedule does not constitute employee misconduct. In Bonomo v. Division of Employment Security, 346 So.2d 128 (Fla. 1st DCA 1977), the claimant challenged an administrative determination that she was discharged for work related misconduct because she requested a reduction in her work hours due to her husband’s illness. The employee was told that she would be assigned a new schedule to meet her need; instead, however, she was discharged. The court found, under these circumstances, her employer should have notified the claimant that “she must either resume her old schedule or be discharged.” Id. at 129. The court held that absent that choice, the claimant’s discharge could not have been based on work related misconduct; therefore, she was able to recover unemployment compensation benefits. In the case before us it would have been no undue burden on the employer to inform petitioner that the practice , of working irregular hours would no longer be tolerated and that he must choose to return to the original schedule or be discharged. Without notification of this choice, we believe the different work schedule, permitted by the employer for three and one-half months, did not constitute misconduct by petitioner.

We also think petitioner’s request for time off to attend his father’s out-of-state funeral did not constitute behavior amounting to misconduct. In Williams v. Florida Industrial Commission, 135 So.2d 435 (Fla. 3d DCA 1961), the court held that the existence of such a family emergency excused an employee’s failure to report to work for purpose of unemployment compensation. See also Tucker v. Florida Department of Commerce, 366 So.2d 845 (Fla. 1st DCA 1979). Cases holding that absenteeism caused by the employee’s personal problems does constitute an. intentional disregard of his duties amounting to work related misconduct contain two special factors not present in the instant case: (1) the employer discussed the situation with the employee, warning him that his conduct was not satisfactory; and (2) the employee failed to give any notice that he would be absent. Moreover, while in these cases the employee was fired for being absent, petitioner in the case before us was fired for merely requesting time off which is not misconduct within the intent of the statute. Wike v. Florida Department of Commerce, 363 So.2d 1139 (Fla. 2d DCA 1978); Hammett v. Florida Department of Commerce, 352 So.2d 948 (Fla. 2d DCA 1977).

It is true, as the employer suggests, that an employee’s entire employment history can be considered in determining whether the employee was discharged for misconduct. C. F. Industries, Inc. v. Long, 364 So.2d 864 (Fla. 2d DCA 1978). However, a consideration of the examples of alleged misconduct in the case before us in combination does not elevate them to the standard prohibited by the statute. In cases where misconduct was found on the basis of a consideration of the employee’s entire employment history, the employer warned the employee he would be fired if his behavior did not improve, and the employee had engaged in misconduct much more serious than working irregular hours or requesting time off. E. g., Bagwell Lumber Company v. Florida Department of Commerce, 353 So.2d 1261 (Fla. 2d DCA 1978); Catholic Social Services v. Florida Department of Commerce, 365 So.2d 427 (Fla. 1st DCA 1978); Varig Brazilian Airlines v. Florida Department of Commerce, 354 So.2d 921 (Fla. 3d DCA 1978). Cf. Fort Myers Pump and Supply, Inc. v. Florida Department of Labor and Unemployment Security, 373 So.2d 429 (Fla. 2d DCA 1979) (where employer indicated changes employee needed to make if she wished to retain her position and employee belligerently refused to comply with the requests, employee’s conduct was within statutory definition of work related misconduct because her insubordination was repeated, rather than occurring in one or two isolated instances).

Accordingly, we hold that the sole evidence in the instant case, which consists of a letter written by the employer outlining the two. above examples of petitioner’s alleged misconduct, does not constitute competent substantial evidence that misconduct occurred. That misconduct envisioned by the statute includes either wanton, deliberate disregard of the employer’s standard of behavior, or the intentional disregard of the employer’s interest. Section 443.06(9). Neither petitioner’s working an irregular schedule (absent a warning from his employer), nor his request for time off to attend his father’s funeral, constituted behavior amounting to misconduct within the meaning of the statute. Therefore, we grant the petition and set aside the order of the Commission and we remand the cause with directions to enter an order allowing the benefits.

BOARDMAN, Acting C. J., and ULMER, RAY E., Jr., Associate Judge, concur.


text:
    STATE of Florida, Appellant, v. Eldridge PIZARRO, Appellee.
    No. 78-2793.
    District Court of Appeal of Florida, Fourth District.
    May 14, 1980.
    Jim Smith, Atty. Gen., Tallahassee, and Paul H. Zacks, Asst. Atty. Gen., West Palm Beach, for appellant.

      Richard L. Jorandby, Public Defender, and Cherry Grant, Asst. Public Defender, West Palm Beach, for appellee.
   ON PETITION FOR REHEARING

BERANEK, Judge.

After further considering the record, briefs, and reargument of counsel, we grant the State of Florida’s motion for rehearing and withdraw our opinion issued on January 23, 1980.

The trial court sentenced defendant on December 1,1978, pursuant to the Youthful Offender Act contained in Sections 958.011 through 958.15, Florida Statutes (Supp. 1978). The State appealed, contesting the trial court’s application of the Act to crimes committed prior to its effective date of October 1, 1978. Alternatively, the State argues that if the Act is retroactive, its application is discretionary.

Florida law provides that the punishment in effect at the time of the crime controls the penalty at sentencing. Castle v. State, 305 So.2d 794 (Fla. 4th DCA 1975), affirmed, 330 So.2d 10 (Fla.1976). In fact, retroactive application of an amended or repealed statute affecting prosecution or punishment is unconstitutional. Article X, Section 9, Florida Constitution. Only procedural or remedial statutory changes may be applied to pending cases. McShay v. State, 321 So.2d 464 (Fla. 4th DCA 1975). Since the Youthful Offender Act alters the prescribed punishments for those persons meeting its requirements, it cannot apply to offenses committed prior to its effective date. See Ellis v. State, 298 So.2d 527 (Fla. 2d DCA 1974); Allen v. State, 383 So.2d 674 (Fla. 5th DCA Case No. 78-2299/T4-266, opinion filed April 16, 1980).

In view of the foregoing, it is unnecessary to reach the question of whether the Act is discretionary or mandatory under the particular facts of this case.

Accordingly, the sentence appealed from is vacated and the cause remanded with directions to resentence defendant.

REVERSED AND REMANDED.

MOORE and HURLEY, JJ., concur.


text:
    Jamie Winford KINNER, Appellant, v. STATE of Florida, Appellee.
    No. 79-158.
    District Court of Appeal of Florida, Second District.
    May 16, 1980.
    Jack O. Johnson, Public Defender, Bar-tow, and Judith L. James, Asst. Public Defender, Tampa, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Eula Tuttle Mason, Asst. Atty. Gen., Tampa, for appellee.
   PER CURIAM.

Appellant’s conviction and sentence are affirmed; however, the cause is remanded with directions to delete from the sentence the trial court’s reservation of jurisdiction. Rodriguez v. State, 380 So.2d 1123 (Fla. 2d DCA 1980).

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


author: SCHEB, Judge.

text:
    Robert KJERSGAARD, Appellant, v. STATE of Florida, Appellee.
    No. 79-1326.
    District Court of Appeal of Florida, Second District.
    May 16, 1980.

      Jack 0. Johnson, Public Defender, Bar-tow, and Judith L. James, Asst. Public Defender, Tampa, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Eula Tuttle Mason, Asst. Atty. Gen., Tampa, for appellee.
   SCHEB, Judge.

Robert Kjersgaard pled nolo contendere to charges of kidnapping and involuntary sexual battery reserving the right to appeal denial of his motion to suppress tangible evidence. He now challenges the denial of his motion as well as the sentences imposed.

On the record before us, we find that the trial court’s ruling on the motion to suppress tangible evidence was not disposi-tive of the case. Accordingly, on the authority of Brown v. State, 376 So.2d 382 (Fla.1979), we do not consider the merits of that ruling. Since Kjersgaard entered his plea prior to Brown, however, we direct the trial- court to allow Kjersgaard thirty days from the date of our mandate to move to withdraw his plea. The court shall grant any such motion unless the state establishes that the withdrawal will prejudice its case against Kjersgaard. Pittman v. State, 382 So.2d 1227 (Fla. 2d DCA 1980).

Kjersgaard also challenges his sentences. We find no merit in his contentions that he can be sentenced for only one crime and that the trial court erred in failing to certify him as a mentally disordered sex offender.

Accordingly, we dismiss Kjersgaard’s appeal insofar as it challenges the denial of his motion to suppress, and affirm the sem tences imposed by the trial court, subject to Kjersgaard’s right to move to withdraw his plea.

GRIMES, C. J., and HOBSON, J., concur.


text:
    James R. WELDON, Appellant, v. Delores J. Weldon SUTTER, Appellee.
    No. OO-410.
    District Court of Appeal of Florida, First District.
    May 20, 1980.

      Dennis L. Salvagio, Orlando, for appellant.
    George C. Cox, Fort Walton Beach, for appellee.
   ON MOTION TO DISMISS

PER CURIAM.

Appellee moves to dismiss this appeal as being untimely, as there is presently in the Circuit Court of Okaloosa County a Motion for Extension of Time to File for Rehearing and a Motion for Rehearing.

Final Judgment was entered by the trial court on July 2, 1979. Appellee filed a Motion for Extension of Time to file her rehearing on July 12, 1979. The notice of appeal was filed on July 13,1979. Appellee filed a Motion for Rehearing on July 20, 1979.

Pursuant to Rule 1.530(b), Florida Rules of Civil Procedure, a motion for a new trial or rehearing shall be served not later than ten (10) days after the rendition of verdict in a jury action or the entry of judgment in a non-jury action. Under Rule 1.090(b)(2), Florida Rules of Civil Procedure, the court may not extend the time for making a motion for a new trial, motion for rehearing, or motion to alter or amend a judgment.

In the instant case, a Motion for Rehearing was not filed within ten (10) days and the trial court had no authority to extend time for filing such a motion.

Therefore, it is ordered that appellee’s Motion to Dismiss the Appeal is Denied.

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


text:
    Jessie L. FUDGE, Appellant, v. GLODIX CONSTRUCTION CO. and Shelby Mutual Insurance Company, Appellees.
    No. QQ-363.
    District Court of Appeal of Florida, First District.
    May 20, 1980.
    Gene Flinn of Flinn & Jennings, Miami, for appellant.
    W. L. Adams of Pyszka, Kessler & Adams, Fort Lauderdale, for appellees.
   PER CURIAM.

The sole issue on this appeal is whether the judge of industrial claims erred in ordering appellant to appear for a deposition. The hearing below, on appellees’ motion to compel discovery, was precipitated by ap-pellees’ inability to obtain appellant’s deposition after nine attempts over the course of 14 months. The excuse given for appellant’s failure to appear for his deposition was his counsel’s inability to attend because of a busy legislative schedule in Tallahassee.

In fact, appellant and his counsel did not appear at the hearing below. Counsel for appellant argues that he was unable to attend, once more, because he was in Tallahassee at a legislative meeting. This is unsupported by the record. The record reveals the judge received a phone call, five minutes before the scheduled hearing, notifying him that appellant’s counsel was unable to attend. There was no mention of any legislative meeting. Even if there had been such mention, it would not affect the disposition of this appeal. As shown by the appendix to appellant’s brief, counsel for appellant knew, for at least two weeks prior to the hearing, that he was scheduled to be in Tallahassee. However, he failed to notify the judge until five minutes before the hearing was to commence.

It is clear to us that the failure to appear at the previous depositions and at the hearing below amounts to dilatory tactics on the part of appellant’s counsel. To delay the resolution of this and other causes by such questionable appeals should not and will not be tolerated. We regret that it has become necessary to concern ourselves with improper practices and tactics on the part of the parties and counsel engaging in worker’s compensation litigation. This is especially disconcerting to the court at a time when its capacity to process necessary and well-founded appeals is being strained to the utmost.

Accordingly, we affirm the judge’s order.

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

      . Special Disability Trust Fund v. University of Miami, 379 So.2d 1323 (Fla. 1st DCA 1980), 1980.


text:
    Estelle VILA and Carlos Vila, her husband, Appellants, v. The B. F. GOODRICH COMPANY, a Foreign Corporation et al., Appellees.
    Nos. 78-2307, 78-2308.
    District Court of Appeal of Florida, Third District.
    May 20, 1980.

      Horton, Perse & Ginsberg, Miami, Friedman & Robbins, North Miami Beach, for appellants.
    Jeanne Heyward, Peters, Pickle, Flynn, Niemoeller, Steiglitz & Hart, Dixon, Dixon, Hurst, Nicklaus & Webb and Mitchell L. Lundeen, Miami, for appellees.
    Before SCHWARTZ, NESBITT and DANIEL S. PEARSON, JJ.
   SCHWARTZ, Judge.

The summary final judgment entered below in favor of the defendants, B. F. Goodrich Co. and Norton Tire Co., which is on appeal in case no. 78-2307, is reversed. Not only did the movants fail affirmatively and conclusively to establish the absence of liability as a matter of law, but the expert affidavit submitted in opposition to the motion demonstrated the existence of unresolved issues of material fact. Holl v. Talcott, 191 so.2d 40 (Fla.1966); see Wills v. Sears, Roebuck & Co., 351 So.2d 29 (Fla.1977); Visingardi v. Tirone, 193 So.2d 601 (Fla.1966).

In case no. 78-2308, the plaintiffs seek review of a “partial final summary judgment” in favor of a co-defendant, Ford Motor Company. The order in question granted summary relief only as to the claims of strict liability and breach of implied and express warranty, which constituted some, but not all, of the theories of liability asserted against Ford; the court specifically reserved ruling on- the negligence count. Since all the counts were based on the same factual circumstances, those disposed of are not separable and distinct from the one which remains. Hence, the order in question is not appeala-ble and case no. 78-2308 is dismissed. McClain Construction Corp. v. Roberts, 351 So.2d 399 (Fla. 2d DCA 1977); Venezia A., Inc. v. Askew, 314 So.2d 254 (Fla. 1st DCA 1975), cert. denied, 333 So.2d 465 (Fla.1976); see Mendez v. West Flagler Family Association, Inc., 303 So.2d 1 (Fla.1974).

Reversed and remanded; appeal dismissed.

      . Because the rulings contained in the Ford Motor Company order are not final and are therefore subject to subsequent reconsideration in the trial court, we observe, by way of dic-turn, that the materials presented in support of and in opposition to Ford’s motion for summary judgment were similar to those involved as to B. F. Goodrich and Norton Tire.


text:
    Joe Wesley SKINNER, Appellant, v. The STATE of Florida, Appellee.
    No. 79-1741.
    District Court of Appeal of Florida, Third District.
    May 20, 1980.

      Collins, Brown, Caldwell, Van de Voorde & Evans and Burney J. Carter, Vero Beach, for appellant.
    Jim Smith, Atty. Gen., and Calvin L. Fox, Asst. Atty. Gen., for appellee.
    Before BARKDULL, NESBITT and BASKIN, JJ.
   PER CURIAM.

This is an appeal from an order denying a motion to correct .a sentence addressed to the trial court pursuant to Florida Rule of Criminal Procedure 3.850. .

Appellant was seventeen years old when he was taken into custody as a juvenile offender. On December 6, 1977, jurisdiction of the juvenile court was waived pursuant to Section 3‘9.02(5)(a), Florida Statutes (1977) and he was charged as an adult with the offense of burglary of a structure and grand larceny which was alleged to have occurred on May 17, 1976. On October 26, 1978, defendant entered a plea of guilty to burglary of a structure and grand larceny. On January 4, 1979, he was sentenced on the burglary charge to five years in the state penitentiary and on the grand larceny charge to five years probation which was to run consecutively with the prison sentence. After expiration of the appeal period, defendant petitioned the trial court to vacate the sentence imposed and to impose sentence upon him as a youthful offender pursuant to provisions of Section 39.111(6), Florida Statutes (Supp.1978) and Chapter 958, Florida Statutes (Supp.1978), both of which became effective October 1, 1978.

The sentence which was originally passed upon defendant as an adult was well within that authorized pursuant to Section 775.082, Florida Statutes (1975). The repeal or amendment of a criminal statute does not affect prosecution or punishment for any crime previously committed. Art. X, § 9, Fla.Const.; Castle v. State, 305 So.2d 794 (Fla.4th DCA 1974), aff’d, 330 So.2d 10 (Fla.1976).

Affirmed.

      . Ch. 78-414, § 16, Laws of Fla. and Ch. 78-84, Laws of Fla.


text:
    Sheldon “Skip” TAYLOR, Appellant, v. BRITISH LEYLAND MOTORS, INC., etc. et al., Appellee.
    No. 79-1758.
    District Court of Appeal of Florida, Third District.
    May 20, 1980.
    Sheldon “Skip” Taylor, Miami, in pro. per.
    Mahoney, Hadlow & Adams and William C. Crenshaw, Blackwell, Walker, Gray, Powers, Flick & Hoehl and James C. Blecke, Miami, for appellee.
    Before BARKDULL, HENDRY and HUBBART, JJ.
   PER CURIAM.

Affirmed. Brookshire v. Florida Bendix Co., Inc., 153 So.2d 55 (Fla. 3d DCA 1963); Barry v. Ivarson Incorporated, 249 So.2d 44 (Fla. 2d DCA 1971); Poliakoff v. National Emblem Insurance Company, 249 So.2d 477 (Fla. 3d DCA 1971); Fred’s Excavating & Crane Service, Inc., v. Continental Insurance Company, 340 So.2d 1220 (Fla. 4th DCA 1976); King Broadcasting Co. v. Programs for Television, Inc., 38 Misc.2d 536, 237 N.Y.S.2d 41 (1963).


text:
    Rebecca APGAR, Appellant, v. The STATE of Florida, Appellee.
    No. 79-1822.
    District Court of Appeal of Florida, Third District.
    May 20, 1980.
    Alvin E. Entin, Miami, Mitchell Denker, Key West, for appellant.
    Jim Smith, Atty. Gen., and Steven R. Jacob, Asst. Atty. Gen., for appellee.
    Before HENDRY, BASKIN and DANIEL S. PEARSON, JJ.
   PER CURIAM.

Petitioner, pursuant to Fla.R.App.P. 9.140(g), having taken this appeal from the summary denial of his motion for post conviction relief under Fla.R.Crim.P. 3.850 and this court having considered the record presented and having further determined that it conclusively appears therefrom that petitioner is entitled to no relief, the denial of his motion is affirmed.


text:
    Robert PEREZ, Appellant, v. The STATE of Florida, Appellee.
    No. 79-1847.
    District Court of Appeal of Florida, Third District.
    May 20, 1980.
    Alvin E. Entin, Miami, for appellant.
    Jim Smith, Atty. Gen. and Paul Mendel-son, Asst. Atty. Gen., for appellee.

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

The appellant, after an adverse jury verdict, was convicted of possession of over one hundred pounds of marijuana.

He was apprehended by a policeman at about 6:15 A.M. after he was observed behind a furniture and appliance store in Key West carrying a bale of marijuana or “square grouper”. At a motion to suppress hearing, the defendant urged that it was an unlawful search and unreasonable seizure. The trial court denied same. . On appeal, appellant urges error; we find none. State v. Ashby, 245 So.2d 225 (Fla.1971); State v. Belcher, 317 So.2d 842 (Fla. 2d DCA 1975); Rakas v. Illinois, 439 U.S. 128, 99 S.Ct. 421, 58 L.Ed.2d 387 (1978).

A reasonable view of the record reveals that the truck and the defendant were on a public street loáding something at the rear of an appliance store in the early morning hours, not normal hours of operation. The police officer was justified in investigating and .he had a right to seize what he saw, which he testified he knew to be marijuana. Lightfoot v. State, 356 So.2d 331 (Fla. 4th DCA 1978); Albo v. State, 379 So.2d 648 (Fla.1980).

The appellant also attempted to raise a question in this court on the class of crime charged but he did not in the trial court. His complaint comes too late. Andrews v. State, 309 So.2d 576, 577 (Fla. 1st DCA 1975), specially concurring opinion; Thompson v. State, 368 So.2d 670 (Fla. 3d DCA 1979).

Therefore, the verdict, judgment of conviction, and sentence be and they are hereby affirmed.

Affirmed.