author: FERGUSON, Judge.

text:
    DEPARTMENT OF BUSINESS REGULATION, DIVISION OF ALCOHOLIC BEVERAGES AND TOBACCO, State of Florida, Charles A. Nuzum, Appellants, v. PROVENDE, INC., d/b/a Club Alexandre, Appellee.
    No. 81-273.
    District Court of Appeal of Florida, Third District.
    June 9, 1981.

      William A. Hatch, Tallahassee, for appellants.
    Donsky & Diner, Carhart & McGuirk, Sy Chadroff and S. Lane Abraham, for appel-lee.
    Before BASKIN, DANIEL S. PEARSON and FERGUSON, JJ.
   FERGUSON, Judge.

The Department of Business Regulation, Division of Alcoholic Beverages and Tobacco issued an emergency order suspending the liquor license of Provende, Inc., doing business as Club Alexandre. That same day, Provende petitioned the Dade County Circuit Court for injunctive relief asserting violation of due process and irreparable harm. The circuit court granted the temporary injunction staying the suspension of the license prior to a final administrative hearing. The Department appeals, challenging the jurisdiction of the circuit court to issue the injunction. We have jurisdiction pursuant to Florida Rules of Appellate Procedure 9.130(a)(3)(B).

We hold that the circuit court improperly exercised its jurisdiction to issue temporary injunctive relief because in this case the petitioner has an adequate remedy at law in Sections 120.68(1), and (2), Florida Statutes (1979) and did not establish on the face of its petition for injunctive relief, the likelihood of success on the merits of its allegation of a due process violation.

Section 120.68(1), supra, provides that a preliminary, procedural, or intermediate agency action or ruling is immediately reviewable by the judiciary if review of the final agency decision would not provide an adequate remedy. Where the license of a party has been temporarily suspended pending a final agency hearing, the subsequent administrative hearing may come too late to remedy the potential effects of severe economic deprivation, loss of business, or professional reputation and loss of clients or customers caused by an alleged erroneous agency action. The likelihood of irreparable harm caused by license suspension actions was recognized by the legislature when it provided in Section 120.68(3), supra that upon petition to the district court of appeal:

“[I]f the agency decision has the effect of suspending or revoking a license, superse-deas shall be granted as a matter of right upon such conditions as are reasonable, unless the court, upon petition of the agency, determines that a supersedeas would constitute a probable danger to the health, safety, or welfare of the state.” (emphasis added).

Petitioner’s remedy here is a legal one of petition for review in the district court of appeal, Section 120.68(2), supra, which then activates the provisions of Section 120.68(3).

The jurisdiction of circuit courts to issue injunctive relief is granted by the Constitution of Florida by Article V, Section 20(c)(3) (amended 1972), and this constitutional and historical grant of equity jurisdiction may not be eliminated by the Administrative Procedure Act, Chapter 120, Florida Statutes (1979). State, Department of General Services v. Willis, 344 So.2d 580 (Fla. 1st DCA 1977). The need for granting that injunctive relief may, however, be changed by statutory creation of adequate administrative or legal remedies sanctioned by the constitution. As the court in Willis, supra at 590, noted in citing from Adams and Miller, “Origins and Current Florida Status of the Extraordinary Writs,” 4 U.Fla.L.Rev. 421, 464-65 (1951):

A new remedy created by statute does not infringe upon the extraordinary writs; it merely reduces the demand for them. Cutting into the scope or nature of the extraordinary writs by statute is one thing; creating an adequate remedy for a sector of the right-enforcement front formerly protected by these writs is another.... The writs are always ready to take over if the range of the new statutory cannon proves too short, because their own range cannot be varied otherwise than by amendment to the Florida Constitution.

While recognizing that the constitutional grants of equity jurisdiction to the circuit courts, as well as original jurisdiction to hear constitutional issues, Art. V, § 5(b), Fla.Const. (amended 1972), cannot be changed by administrative enactment, Florida courts have required compliance with the statutory remedies, including those provided by the Administrative Procedure Act, by adopting certain prudential, i. e., judicial limitations as to when circuit courts may exercise the power to grant injunctive relief. Willis, supra. By petitioning for in-junctive relief a petitioner is, in effect, asking the court to exercise jurisdiction and grant the requested relief. The circuit court must then consider these judicially created limitations in determining whether it may exercise jurisdiction for purposes of granting the requested relief. We note that every court has jurisdiction to hear and determine the question of its own jurisdiction. Sun Insurance Company v. Boyd, 105 So.2d 574 (Fla.1958); Carter v. Dorman, 385 So.2d 740 (Fla.3d DCA 1980). To the extent that the judicially created limitations prevent a circuit court from exercising its power to grant an injunction in a certain case, it may not accept jurisdiction, and in this limited sense may be said to be without jurisdiction. See, e. g, 13 Fla.Jur.2d, Courts and Judges, §§ 22-25.

In deciding whether it may exercise the constitutional grant of jurisdiction to issue temporary injunctive relief, the court must decide whether the petitioner has established the elements which the courts have found necessary to the granting of injunctive relief: (a) the likelihood of irreparable harm, and the unavailability of an adequate remedy at law, (b) the substantial likelihood of success on the merits, (c) that the threatened injury to petitioner outweighs any possible harm to the respondent and, (d) that the granting of preliminary injunction will not deceive the public interest. See, e. g., Erskine v. West Palm Beach, 473 F.Supp. 48 (S.D.Fla.1979); Jets Services, Inc. v. Hoffman, 420 F.Supp. 1300 (M.D.Fla.1976); Oxford International Bank and Trust, Ltd. v. Merrill Lynch, Pierce, Fenner & Smith, Inc., 374 So.2d 54 (Fla.3d DCA 1979), cert. dismissed, 383 So.2d 1199 (Fla.1980); State, Department of Health and Rehabilitative Services v. Artis, 345 So.2d 1109 (Fla. 4th DCA 1977).

The test stated by this court in Metropolitan Dade County v. Department of Commerce, supra, and Willis, supra, is in effect the same test the courts have traditionally applied in deciding whether to exercise jurisdiction for the purpose of granting injunc-tive relief. The requirement to show that there is no adequate administrative remedy to cure egregious agency error where circuit court equity jurisdiction is sought to review actions of an administrative agency is, in effect, the same as the traditional requirement to show the likelihood of irreparable harm and the unavailability of an adequate remedy at law. The traditional requirement to establish substantial likelihood of success on the merits is, in effect, the same as the requirement to state ultimate facts sufficiently detailed to establish constitutional violation on the face of the complaint. See, e. g., Metropolitan Dade County, supra, at 435.

It is not disputed here that Pro-vende has an adequate remedy at law in appeal to the district court of appeal as provided by Section 120.68(2). Because, however, the constitution provides that the circuit courts have original jurisdiction to hear constitutional issues, we must also address the question of whether Provende has demonstrated on the face of its petition for injunctive relief, the likelihood of success on the merits of his allegation of violation of procedural due process. We find it has not. There is no requirement that a hearing be held prior to an emergency order suspending a license, Barry v. Barchi, 443 U.S. 55, 99 S.Ct. 2642, 61 L.Ed.2d 365 (1979); Aurora Enterprises, Inc. v. State, Department of Business Regulation, 395 So.2d 604 (Fla.3d DCA 1981), and Pro-vende’s argument on appeal that there has been a delay in a subsequent hearing violating Provende’s due process rights is irrelevant to the question of circuit court jurisdiction as it does not appear on the face of the petition. Although the circuit court has jurisdiction in the sense that the constitution grants it equity jurisdiction and original jurisdiction in cases involving constitutional violations, it lacked the power to issue the injunction because here there was no need for an equitable remedy and the judicially-created prerequisites were not satisfied.

Reversed.

      . See also Section 26.012(3), Florida Statutes (1979) providing that the circuit court may issue injunctions.

      . Article V, Section 4(b)(2), Florida Constitution (amended 1972), provides that district courts of appeal shall have the power of direct review of administrative action as prescribed by general law.

      .See Junco v. State Board of Accountancy, 390 So.2d 329, 331 (Fla.1980) (the jurisdiction of the circuit court to resolve constitutional issues is unaffected by the Administrative Procedure Act.) See also Metropolitan Dade County v. Department of Commerce, 365 So.2d 432 (Fla.3d DCA 1978); Carrollwood State Bank v. Lewis, 362 So.2d 110 (Fla.3d DCA 1978); Department of Transportation v. Morehouse, 350 So.2d 529 (Fla.3d DCA 1977).

      . We note that Metropolitan Dade County, supra, involved payments allegedly due the Department of Commerce from Dade County under the provisions of the Unemployment Compensation Law, Chapter 44, Florida Statutes, (1977) and not suspension of a license.

      . Art. V, § 5(b), Fla.Const. (amended 1972). Willis, supra. See also cases cited at note 2, supra.

      . We do not otherwise address this issue of jurisdiction between courts implied here, as it was not argued below. Accordingly, we do not decide whether there is any conflict between the constitutional grant of original jurisdiction to the circuit court to hear cases involving constitutional issues, Art. V, § 5(b), Fla.Const. (amended 1972), and the constitutional provision that the legislature may determine the extent of appellate court review of agency actions, Art. V, § 4(b)(2) Fla.Const. (amended 1972).
      For the same reason we do not address the issue of whether Section 120.68(3) in providing for supersedeas as of right upon appeal to the district courts raises a presumption that irreparable harm occurs in license suspension cases which, in turn, necessarily implies a concomitant inference that the failure for a pre-suspension hearing renders the statute facially-unconstitutional in license suspension cases, or, alternatively, whether Section 120.68(3) by providing for pre-hearing relief, preserves the constitutionality of Chapter 120.


source: Caselaw Access Project

author: BASKIN, Judge.

license: Public Domain

text:
    DEPARTMENT OF BUSINESS REGULATION, DIVISION OF ALCOHOLIC BEVERAGES AND TOBACCO, State of Florida, Appellant, v. M. S. B. LOUNGES, INC., d/b/a Bird’s Nest Lounge, Appellee.
    No. 81-271.
    District Court of Appeal of Florida, Third District.
    June 9, 1981.
    William A. Hatch, Tallahassee, for appellant.
    Seymour Chadroff and Lane S. Abraham, Miami, for appellee.
    Before SCHWARTZ, NESBITT and BASKIN, JJ.
   BASKIN, Judge.

Reversed upon the authority of Department of Business Regulation, Division of Alcoholic Beverages & Tobacco v. N.K. Inc., 399 So.2d 416 (Fla. 3d DCA 1981). Department of Business Regulation, Division of Alcoholic Beverages and Tobacco v. Provende, Inc., 399 So.2d 1038 (Fla. 3d DCA 1981).


author: PER CURIAM.

text:
    Bernard BOUIE, Appellant, v. STATE of Florida, Appellee.
    No. 80-1205.
    District Court of Appeal of Florida, Fifth District.
    June 10, 1981.
    James B. Gibson, Public Defender, and Brynn Newton, Asst. Public Defender, Day-tona Beach, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Richard W. Prospect, Asst. Atty. Gen., Day-tona Beach, for appellee.
   PER CURIAM.

Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967).

AFFIRMED.

DAUKSCH, C. J., and COBB and FRANK D. UPCHURCH, Jr., JJ., concur.


author: ORFINGER, Judge.

text:
    Roosevelt PEAK, Appellant, v. STATE of Florida, Appellee.
    No. 80-1073.
    District Court of Appeal of Florida, Fifth District.
    June 10, 1981.
    James B. Gibson, Public Defender, Michael S. Becker, Asst. Public Defender, and Thomas R. Mott, Certified Legal Intern, Daytona Beach, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Edward M. Chew, Asst. Atty. Gen., Dayto-na Beach, for appellee.
   ORFINGER, Judge.

Appellant entered a plea of nolo conten-dere to one count of attempted murder and two counts of burglary, without reserving the right to appeal any ruling of the trial court. Pursuant to the plea bargain negotiations, he was given a split sentence of five years imprisonment (with a minimum mandatory sentence of three years because a firearm was used) to be followed by ten years probation on the attempted murder count, and three years concurrent probation on each of the burglary counts.

He contends on appeal that his plea was not voluntary because he was not advised of the three-year minimum mandatory sentence, and asks that we permit him to withdraw his plea. We have limited jurisdiction to entertain an appeal from a judgment based on a nolo plea where nothing has been reserved for appeal. Any contention that the plea was not of a voluntary or intelligent character should first be presented to the trial court in a motion to withdraw the plea. Robinson v. State, 373 So.2d 898 (Fla.1979); In the Interest of S.C. v. State, 388 So.2d 643 (Fla. 5th DCA 1980).

Appellant also contends on appeal that the split sentence is improper under the principles of Villery v. Florida Parole & Probation Commission, 396 So.2d 1107 (1981) [1981 FLW 313], However valid his contention might be had the sentence followed a trial and conviction, here it resulted from a plea bargain and we cannot give the appellant relief from his bargain without also offering the state the same relief. See Jolly v. State, 392 So.2d 54 (Fla. 5th DCA 1981); Cleveland v. State, 394 So.2d 230 (Fla. 5th DCA 1981).

Villery does not address negotiated split sentences which are otherwise within the limits prescribed by law. Because the sentence and the plea are intertwined, the appellant must seek his relief, if any, from the trial court upon proper application. If the appellant is not bound by the plea negotiation, then neither is the State, and relief is available in the trial court.

The appeal is dismissed, but without prejudice to the right of appellant to seek appropriate relief in the trial court.

Appeal DISMISSED.

SHARP, W., and COWART, JJ., concur.

      . Fla.R.Cr.P. 3.172(c)(iv); Fla.R.App.P. 9.140 (b)(1).

      . Cf. Pendarvis v. State, 400 So.2d 494 (Fla. 5th DCA 1981).


author: FRANK D. UPCHURCH, Jr., Judge.

text:
    Herschel SHEPARD, Appellant, v. CITY OF PALATKA and Joseph Rothenberg and United States Fidelity & Guaranty Company, Appellees.
    No. 80-974.
    District Court of Appeal of Florida, Fifth District.
    June 10, 1981.
    Carl D. Dawson of Dawson, Galant, Maddox, Sulik & Nichols, P. A., Jacksonville, for appellant.
    No appearance for appellees.
   FRANK D. UPCHURCH, Jr., Judge.

Herschel Shepard appeals from a summary final judgment entered against him. Appellee, the City of Palatka, retained Shepard as its architect for the repairing and remodeling of the Bronson-Mulholland House in Palatka. Appellee, Joseph Roth-enberg, was the contractor selected to do the work. Appellee, United States Fidelity and Guaranty was Rothenberg’s surety.

After completion of the work, veneer plaster began to peel away from the plaster wallboards because a special type of wallboard necessary to assure adhesion had not been installed. The city contended that the special type of wallboard (one-half inch Imperial Plaster Base, Type X, paragraph 9F-3C) was mandated by the job specifications. The contractor, in his deposition, acknowledged that he had not used this board but instead used a finishing board, fire resistive, type X, throughout. He contends that the specifications permitted either to be used and that the fire resistant board was approved on the job.

The city sued Shepard claiming he was negligent in the preparation of plans and specifications and also charged that he failed to make timely and proper inspection of Rothenberg’s work. The city also sued Rothenberg and his surety for negligent failure to follow the plans and specifications. Shepard cross-claimed against Roth-enberg for indemnification. Summary judgment was granted to the city against all three defendants on the issue of liability.

The city, as the party moving for summary judgment, was required to show that there exists no genuine issue of material fact and that it was entitled to judgment as a matter of law. Every reasonable inference was required to be drawn in favor of Shepard. Wills v. Sears Roebuck & Co., 351 So.2d 29 (Fla.1977); Holl v. Talcott, 191 So.2d 40 (Fla.1966).

In Palm Bay Towers Corp. v. Crain & Crouse, Inc., 303 So.2d 380, 383 (Fla. 3d DCA 1974), the court enunciated the standard of care owed by an architect to his employer:

As a general rule, an engineer, like an architect, owes his employer a duty to exercise and apply his professional skill, ability and judgment in a manner which is reasonable and without neglect.

As to the question of whether there was a failure to make timely and proper inspection of Rothenberg’s work, it is necessary to consider the duty of the architect as specified in the contract which provided:

The Architect shall make periodic visits to the site to familiarize himself generally with the progress and quality of the work and to determine in general if the Work is proceeding in accordance with the Contract Documents. On the basis of his on-site observations as an architect he shall endeavor to guard the Owner against defects and deficiencies in the work of the Contractor. The Architect shall not be required to make exhaustive or continuous on-site inspections to check the quality or quantity of the Work. The Architect shall not be responsible for construction means, methods, techniques, sequences or procedures, or for safety precautions and programs in connection with the Work, and he shall not be responsible for the Contractor’s failure to carry out the Work in accordance with the Contract Documents.
The Architéet shall not be responsible for the acts or omissions of the Contractor, or any Subcontractors, or any of the Contractor's of the Subcontractors’ agents or employees, or any other persons performing any of the Work.

In a proper factual situation, where it is demonstrated that the architect ignored his contractual duty to make periodic visits to the site, liability could possibly lie regardless of such exonerating language. Such was not the case here, however. The architect’s deposition reflected that he had made inspections. While he admitted that he had not discovered the misuse of the wallboard, the contract clearly protected him because it imposed no duty upon him to discover the omission of the contractor and clearly absolved him of liability if there were, in fact, such omissions.

The other question was whether the architect was negligent in the preparation of plans and specifications.

Shepard, in his cross-claim against the contractor, Rothenberg, alleged that Roth-enberg had failed to follow the plans and specifications. Rothenberg denied and alleged that he had followed the plans and specifications.

The court did not determine liability as between Shepard and Rothenberg. If it is ultimately determined that Rothenberg did follow the plans and specifications, the conclusion is inescapable that Shepard was negligent in their preparation and would be liable to the city. On the other hand, if it is determined that Rothenberg did not follow the plans and specifications then Rothenberg would be liable to the city but Shepard would not. The jury could also find each liable to some extent under a comparative negligence theory. Hoffman v. Jones, 280 So.2d 431 (Fla.1973).

We conclude, therefore, that the entry of summary judgment, even though limited to the issue of liability was erroneous. There is an issue of fact as to whether the architect was negligent in the preparation of the plans and specifications. There is also an issue of fact as to whether the contractor complied with the plans and specifications. Whether either the contractor or architect or both are liable to the city cannot be determined as a matter of law at this stage of the case. We must REVERSE.

SHARP and COWART, JJ., concur.


author: LETTS, Chief Judge.

text:
    CITY OF DEERFIELD BEACH, Wardell Chance, Doris Hunn, Myrle Johnson, Richard Mowry and Lawrence Vanderwiele, Petitioners, v. Michael H. VAILLANT, Respondent.
    No. 78-2149.
    District Court of Appeal of Florida, Fourth District.
    June 10, 1981.
    Rehearing Denied July 6, 1981.

      Andrew Maurodis and James G. Kincaid, Port Lauderdale, for petitioners.
    Philip S. Shailer of Shailer & Purdy, Port Lauderdale, for respondent.
   LETTS, Chief Judge.

This matter is before us by reason of an “appeal” brought by the City of Deerfield Beach from a Circuit Court order reversing the Civil Service Board’s decision to fire the Superintendent of the Wastewater Treatment Department. We treat it as a petition for a writ of certiorari which we deny.

Our scope of review is limited when an appellant seeks review from a Circuit Court which has acted in its appellate capacity. See Campbell v. Vetter, 375 So.2d 4 (Fla. 4th DCA 1979) and our second opinion in the same case Campbell v. Vetter, 392 So.2d 6 (Fla. 4th DCA 1980). See also City of Winter Park v. Jones, 392 So.2d 568 (Fla. 4th DCA 1980). It is true that a recent ruling from the Third District held a plenary appeal appropriate to review the decision of a Circuit Court which had acted in its appellate capacity. See United Teachers of Dade v. Save Brickell Avenue, Inc., 378 So.2d 296 (Fla. 3d DCA 1979). However, we must respectfully disagree with this latter ruling and in so doing note a more recent case from the same Third District which in its initial footnote also appears to disagree. See Save Brickell Avenue, Inc. v. City of Miami, 393 So.2d 1197 (Fla. 3d DCA 1981).

The controversy is complicated by the sometimes interchangeable use of the words “certiorari” and “appeal” with the intention, in generic terms, of denoting a seeking out of higher appellate review. Thus we note, for example, that the “Civil Procedure for Appeals” written up for Deerfield Beach provides for review of Civil Service Board decisions by “petition [to] the Circuit Court for a review by certiorari.” However, this is not a discretionary review and inescapably the circuit court must review it. As we said in Campbell v. Vetter, supra, any such review by the Circuit Court centers around whether or not the Civil Service Board (itself a quasi-judicial appellate forum):

1. Provided procedural due process;
2. Observed the essential requirements of the law; and
3. Supported its findings by substantial competent evidence.

Frankly, we think the Civil Service Board’s decision satisfied all three of these requirements in this case, but the fact remains we believe that a plenary appeal from this circuit court ruling is not available and that recourse to us must be by certiorari pursuant to Florida Appellate Rule, 9.030(b)(2)(B) which provides:

“The certiorari jurisdiction of district courts of appeal may be sought to review ... final orders of circuit courts acting in their review capacity.” (emphasis supplied)

In contrast to our view, the Third District in United Teachers, supra, held that review by the district courts from administrative action, even though already reviewed by a circuit court, is appealable as a matter of right under Article V, Section 4(b) of the Florida Constitution which states:

District Courts shall have jurisdiction to hear appeals, that may be taken as a matter of right, from final judgments or orders of trial courts, including those entered on review of administrative action, not directly appealable to ... a circuit court, (emphasis supplied)

At first blush we agreed with the Third District but further study convinces us that a final judgment of a circuit court acting in its review capacity is not appeala-ble as a matter of right to a district court if it has already been directly “appealed” to a circuit court. Thus the constitutional provision above quoted is not applicable.

It is true that the “appeal” to the circuit court under the city provisions now before us was styled “a review by certiorari.” Nonetheless the circuit judge treated it as if it were an appeal and reviewed “the entire record including hundreds of pages of proceedings and testimony.” Inevitably then, no matter what the magic word, the end product was an appeal to circuit court. This being so, recourse to us must be by certiorari.

To quote from appellee’s brief: “The critical question ... centers on the scope or extent of such appellate review. Appellants ... would seem to suggest that as a case moves up the appellate ladder, each level of review becomes more broad ... than the one preceding it. In effect appellants desire to invert the pyramid.”

We ascribe to the pyramid analogy, but, like the appellee, believe its vertex must be uppermost. This being so, we cannot consider the question of substantial competent evidence already reviewed by the Circuit Court. This leaves only two of the three criteria first above set forth. Accordingly, we can only examine to see if:

1. Procedural due process was afforded; and
2. The essential requirements of the law were observed.
(See Campbell v. Vetter, supra)

In this respect we must ourselves confess generic use of the term “appeal,” for in our first rendering of Campbell v. Vetter, supra, we called the review to our court an “appeal” though we there correctly defined it as if it were a petition for certiorari which it really was.

We recognize our holding here appears to be in conflict with the Third District’s United Teachers case, but common sense dictates that no one enjoys three full repetitive reviews to,

1. a civil service board
2. a circuit court
3. a district court of appeal,

the one exception being in the field of criminal law where an indigent criminal appears to be afforded a chain of review ad infini-tum in one form or another.

Applying our scope of review to the case at hand, we cannot say that the trial judge either failed to provide due process or departed from the essential requirements of the law. Accordingly, the petition for a writ of certiorari is denied.

CERTIORARI DENIED.

DOWNEY and BERANEK, JJ., concur.


author: GLICKSTEIN, Judge.

text:
    In re ESTATE OF Stanton GRIFFIS, Deceased.
    No. 79-2435.
    District Court of Appeal of Florida, Fourth District.
    June 10, 1981.
    Larry Klein, West Palm Beach, I. Ronald Horowitz, New York City, and Cromwell & Remsen, Riviera Beach, for appellant-executor.
    Chester Bedell and- Peter D. Webster of Bedell, Bedell, Dittmar & Zehmer, P.A., Jacksonville, and Coe & Broberg, Palm Beach, for appellee, Elizabeth K. Griffis (widow).
   GLICKSTEIN, Judge.

The executor appeals an order of the trial court awarding attorneys’ fees from the estate to the decedent’s widow in the sum of $125,000. We affirm.

This is the third consideration of the subject estate by this court. The same attorneys representing the widow here represented her in the two previous appeals. See In re Estate of Griffis, 330 So.2d 797 (Fla.4th DCA 1976), cert. denied sub nom. Griffis v. Griffis, 342 So.2d 1101 (Fla.1977); and In re Estate of Griffis, 366 So.2d 80 (Fla.4th DCA 1978). These attorneys achieved for her by our 1976 decision the bequest from the decedent in his first codicil of $500,000. In doing so the attorneys effected a reversal of the trial court which had held the widow was entitled to nothing. The basic facts are in the 1976 published opinion and do not require repetition.

In the 1978 decision this court reversed the trial court’s order disallowing attorneys’ fees from the estate on behalf of the widow and remanded with directions to the trial court to set those attorneys’ fees. This appeal followed the subsequent order which set the fees.

We initiate the discussion by holding that the amount of attorneys’ fees set by the trial court is a matter of discretion and the exercise thereof will not be disturbed absent a clear showing of abuse. In re Estate of Ryecheck, 323 So.2d 51 (Fla.3d DCA 1975). See Division of Administration v. Denmark, 354 So.2d 100 (Fla.4th DCA 1978); Price v. Price, 389 So.2d 666, 669 (Fla.3d DCA 1980); Pfohl v. Pfohl, 345 So.2d 371, 379 (Fla.3d DCA 1977); Division of Administration v. Condominium International, 317 So.2d 811 (Fla.3d DCA 1975); and Canal Authority v. Ocala Manufacturing Ice and Packing Co., 253 So.2d 495, 496 (Fla.1st DCA 1971), cert. denied, 259 So.2d 715 (Fla.1972). In determining whether there has been an abuse of discretion we are bound to follow the standard pronounced by the supreme court in Canakaris v. Canakaris, 382 So.2d 1197, 1203 (Fla.1980):

In reviewing a true discretionary act, the appellate court must fully recognize the superior vantage point of the trial judge and should apply the “reasonableness” test to determine whether the trial judge abused his discretion. If reasonable men could differ as to the propriety of the action taken by the trial court, then the action is not unreasonable and there can be no finding of an abuse of discretion. The discretionary ruling of the trial judge should be disturbed only when his decision fails to satisfy this test of reasonableness.

Sub judice the trial court expressly based its decision upon the factors in Disciplinary Rule 2-106(B) of the Code of Professional Responsibility, which provides:

A fee is clearly excessive when, after a review of the facts, a lawyer of ordinary prudence would be left with a definite and firm conviction that the fee is in excess of a reasonable fee. Factors to be considered as guides in determining the reasonableness of a fee include the following:
(1) The time and labor required, the novelty and difficulty of the questions involved, and the skill requisite to perform the legal service properly.
(2) The likelihood, if apparent to the client, that the acceptance of the particular employment will preclude other employment by the lawyer.
(3) The fee customarily charged in the locality for similar legal services.
(4) The amount involved and the results obtained.
(5) The time limitations imposed by the client or by the circumstances.
(6) The nature and length of the professional relationship with the client.
(7) The experience, reputation, and ability of the lawyer or. lawyers performing the services.
(8) Whether the fee is fixed or contingent.

The trial court found that the subject matter involved protracted trial and appellate litigation; that the widow’s attorneys had spent in excess of 750 hours on the case, of which more than 600 hours were attributable to attorneys each having more than twenty-five years of legal experience; that the legal issues involved were both novel and difficult, requiring considerable skill; that there was expert testimony from two attorneys, each of whom had practiced more than forty years, that $125,000 would be a customary fee in Palm Beach County for the services performed by the widow’s attorneys; that a substantial sum of money had been involved in the litigation; that an especially good result had been achieved; and that the experience, reputation and ability of the widow’s attorneys were excellent.

Appellant points out that the widow’s fee arrangement with her attorneys was on an hourly basis with the understanding that if the attorneys were successful in obtaining the $500,000 bequest, they would be paid 25% or $125,000, less a credit for the hourly charges. If the hourly charges exceeded $125,000, they would be paid the hourly charges. Appellant relies on two cases from the Second District Court of Appeal; namely, Universal Underwriters Ins. Co. v. Gorgei Enterprises, Inc., 345 So.2d 412 (Fla.2d DCA 1977), and Kaufman and Broad Home Systems, Inc. v. Sebring Airport Authority, 366 So.2d 1230 (Fla.2d DCA 1979). In both cases, our sister court reduced the trial court’s awards which had been based upon the attorneys’ contingent fee arrangements. We believe neither case to be applicable here. In the Universal opinion the appellate court expressly recited that the criteria of DR 2-106(B) would not support the award, which is not what the trial court found in the instant matter nor what we perceive. In the Kaufman case, a rent collection matter, the court found that a fee that averaged out to $340.00 per hour was excessive; here the award averages out to $167.00 per hour.

Appellant also relies upon In re Estate of Maxcy, 240 So.2d 93 (Fla.2d DCA 1970), cert. denied, 244 So.2d 435 (Fla.1971), for the proposition that the widow should not have a plurality of attorneys to be paid by the estate if an executor is not so entitled. Here, the reasonable fee was based upon the value of the legal services provided as measured by the factors in DR 2-106(B), not on the number of attorneys representing the widow. The trial court did not award one fee to the Bedell firm and another fee to the Broberg firm. It awarded a single, reasonable fee for the services provided by all of the widow’s attorneys.

We find appellant’s further argument does not merit discussion. Therefore, we affirm.

AFFIRMED.

DOWNEY and MOORE, JJ., concur.

      . Hereinafter referred to as the 1976 decision.

      . Hereinafter referred to as the 1978 decision.

      . We note that we affirmed an award for fees that broke down to $340 per hour in an eminent domain proceeding, when such award complied with Section 73.092, Florida Statutes. This statute establishes guidelines, which are similar to Disciplinary Rule 2-106(B), for assessment of attorney’s fees in eminent domain proceedings. Division of Administration v. Denmark, 354 So.2d 100 (Fla.4th DCA 1978).


author: DANAHY, Judge.

text:
    Leslie CLAYCOMB and City of St. Petersburg, a Municipal Corporation, Appellants, v. Sherman A. EICHLES and Louise Eichles, his wife, Appellees.
    No. 80-432.
    District Court of Appeal of Florida, Second District.
    June 10, 1981.
    Larry D. Brown, Asst. City Atty., and Michael S. Davis, Chief Asst. City Atty., St. Petersburg, for appellants.

      David B. Kesler and W. G. Bostick, Jr., of the Law Offices of David B. Kesler, St. Petersburg, for appellees.
   DANAHY, Judge.

Appellants are a St. Petersburg police officer (Claycomb) and the City of St. Pe-tersburg. Appellees (the Eichles) are residents of St. Petersburg who unknowingly purchased a stolen Cadillac. They brought this action to recover damages for the alleged wrongful actions of Claycomb in taking possession of the Cadillac from the Eichles, impounding it, and returning it to the original owner, a Mr. Heilman. In a separate action for replevin, the Eichles were successful in regaining possession of the Cadillac from Mr. Heilman.

In this suit the Eichles demanded damages on theories of negligence and intentional infliction of severe emotional distress. They presented expert testimony to establish that they both suffered physical injury from the emotional distress of the incident. The trial judge submitted the case to the jury on both the issues of negligence and intentional infliction of severe emotional distress. Using a special verdict form, the jury returned a verdict finding Claycomb negligent but expressly finding that his actions were not malicious, reckless or wanton. The jury awarded damages of $40,000 to the Eichles. Judgment was entered thereon and this appeal followed.

Of the issues raised by appellants on this appeal, we find one to have merit. The trial judge instructed the jury that it could award damages to the Eichles for mental anguish. Although that instruction may have been intended to apply only if the jury found intentional infliction of emotional distress, it was not so limited. The rule in Florida is that damages may not be recovered for mental anguish or physical injury resulting from emotional stress caused by the negligence of another, in the absence of a physical impact upon the plaintiff. Gilliam v. Stewart, 291 So.2d 593 (Fla.1974). Clearly there was no physical impact in this .case. Under such circumstances, an instruction permitting the jury to award damages for mental anguish upon a finding of negligence is erroneous.

REVERSED and REMANDED for a new trial.

SCHEB, C. J., and BOARDMAN, J., concur.


author: LARRY G. SMITH, Judge. ERVIN, Judge,

text:
    James A. MAXWELL, Appellant, v. UNITED STATES FIDELITY & GUARANTY COMPANY, Appellee.
    No. TT-314.
    District Court of Appeal of Florida, First District.
    June 16, 1981.

      Edwin F. Blanton of Novey & Blanton, Tallahassee, for appellant.
    R. Jeremy Solomon of McConnaughhay & Roland, Tallahassee, for appellee.
   LARRY G. SMITH, Judge.

Maxwell appeals a declaratory judgment finding that the limits of uninsured motorist coverage provided by his employer’s insurer, United States Fidelity and Guaranty Company (USF&G), were those provided in the policy of $10,000 per person and $20,000 per accident. Maxwell raises two issues for our consideration: First, he urges that the insured was unable to make an informed rejection of uninsured motorist (UM) coverage and therefore the UM coverage is equal to the bodily injury (BI) coverage. Secondly, he argues that since the vehicle involved in the accident was added to the insurance policy by endorsement several months after the policy had been issued and delivered and the insurer failed to renew the UM offer at that time, the insured was not given an opportunity to reject the added coverage and therefore the UM coverage limits are equal to BI coverage limits. We affirm.

On February 1, 1978, the named insured, Magnus Peavy, acquired fleet coverage for his vehicles from USF&G. The fleet policy, issued February 1, 1978, had BI liability limits of $500,000 and UM coverage limits of $10,000-$20,000. The vehicle in which Maxwell was driving at the time of the accident was added to the fleet policy several months after February 1, 1978 by endorsement, and an additional premium was charged for the new coverage. The agent did not then advise Peavy he had the right to UM coverage in the same amount as his BI limits, and none was requested. On December 23, 1978, Maxwell suffered severe injuries in an automobile accident caused by a “phantom” vehicle. Maxwell’s damages far exceeded the uninsured motorist’s limits of $10,000-$20,000 in the fleet policy and the insurer denied coverage beyond those limits. Maxwell then filed a complaint for declaratory judgment to determine the scope of the UM coverage.

The trial court, while not deciding the issue of whether Maxwell was operating the insured vehicle with the consent of the owner when the accident occurred, found (1) that the insured had been offered UM coverage equal to his BI liability coverage for the policy period from February 1, 1978 to February 1, 1979, and had rejected it; (2) that the insured was an intelligent businessman who relied upon his insurance agent for information, and that there was no evidence he was furnished incorrect information; (3) that the policy covered from 40-50 vehicles and that vehicles would from time to time be added or deleted by endorsement; and (4) that it was the intention of the parties that the rejection applicable to the fleet policy effective February 1, 1978 apply to all vehicles added during the term of the policy. The court thereupon held that since Maxwell was operating a vehicle which had been added to the policy at the time of the accident, the limits of the UM coverage provided by USF&G’s policy were $10,000 per person and $20,000 per accident, in accordance with the rejection applicable to the fleet policy.

Although the trial court ruled otherwise, Maxwell argues before us that the insured failed to make a knowing and informed rejection of UM limits in an amount equal to his BI limits when the policy was first issued. In response to this argument, we note this was a factual issue resolved in favor of the insurer by the trial judge and the trial judge’s ruling comes to this court clothed with a presumption of correctness. Further, we agree there is competent and substantial evidence supporting the finding that the insured knowingly and intelligently rejected UM coverage equal to his BI liability coverage when the fleet policy was issued on February 1, 1978. Therefore, we decline to reverse on this point.

We turn now to Maxwell’s contention that the endorsement adding the vehicle involved in the accident to the policy constitutes a new policy within the meaning of Section 627.727(1) and (2), Florida Statutes (1977). This statute requires that an insurer make an offer of UM coverage to the insured in the amounts up to BI limits for each new insurance policy issued in the state. In support of his contention that the endorsement constitutes a separate contract of insurance for which the insurer must renew the UM offer, Maxwell relies on United States Fire Insurance Company v. Van Iderstyne, 347 So.2d 672 (Fla. 4th DCA 1977), which held that an insurance policy endorsement to add an additional automobile after the effective date of an amendment to Section 627.727, Florida Statutes (1973) increasing coverage requirements for uninsured and underinsured motorist coverage was a separate and severable contract so that the new statutory limits for coverage were applicable.

We cannot agree with this application of the holding in Van Iderstyne. In that case the issue was: Which law should apply, the law in effect at the time the policy was issued (which did not require the policy to provide uninsured and underinsured motorist coverage), or the law in effect at the time of the endorsement adding another automobile (which required the policy to include such coverage, unless rejected)? The court answered, not by finding that the endorsement constituted a reissuance or redelivery of the entire policy (although the court considered and apparently rejected this as a “possible” interpretation, (opinion page 673)), but by reasoning that since the law at the time of the endorsement required UM coverage, and the endorsement was a “separate and severable contract,” the court would be required, in effect, to “write into the policy and/or the endorsement” the required coverage.

The issue in the case before us, on the other hand, is not what law to apply in determining the obligation of the insurer under the policy and endorsement. Rather, the issue is how to construe the statutory law in effect at the time of the issuance of the policy with reference to a later endorsement adding another vehicle to the policy coverage. Since both the facts and question of law involved differ from those in Van Iderstyne, we see no reason why that case should lead us to reach the same result.

Put very simply, does the statute require the insurer to obtain a new rejection of UM coverage (up to the limits of liability for bodily injury) when the company adds another vehicle by endorsement, after the insured has already knowingly rejected the extra coverage as to the policy itself? We answer this question in the negative, as did the trial judge, under the factual circumstances presented by this case. While we agree with Maxwell that the provisions of Section 627.727(1) and (2) require that the insurer “make an offer of uninsured motorist coverage to the insured in the amounts up to the bodily injury limits for each new insurance policy issued in the State,” we do not agree that the addition of another vehicle by endorsement is the issuance of a “new insurance policy,” and furthermore, the opinion in Van Iderstyne makes it clear that for purposes of applying this statute, it is not. There the court stated (Van Iderstyne, at 673):

There is no question that the endorsement and the policy are interrelated and interdependent. If it were not for the endorsement the second automobile would not be covered and if it were not for the policy we wouldn’t know most of the terms of the coverage.

That the policy and the endorsement are “interrelated and interdependent” does not make them the same thing. The statute speaks of “coverage” of the “policy,” and it creates no burden upon the insurer to provide for or obtain a new rejection of UM coverage when the vehicles covered by the policy are simply changed by endorsement. The issue is very similar to that presented by the “replacement” of a vehicle and requires no different interpretation of this statute. See Kennilworth Insurance Company v. McCormick, 394 So.2d 1037 (Fla. 1st DCA 1981); State Farm Mutual Automobile Insurance Company v. Bergman, 387 So.2d 494 (Fla. 5th DCA 1980); United States Fidelity and Guaranty Company v. Waln, 395 So.2d 1211 (Fla. 4th DCA 1981).

As previously noted, the trial judge found that the policy covered from 40-50 vehicles, that vehicles would be from time to time added or deleted by endorsement, and that it was the intention of the parties that the rejection applicable to the fleet policy would apply to all vehicles added during the term of the policy. Consistent with the intention of the parties to this fleet policy, the insured added 13 vehicles and deleted 12 during the policy year. It does not appear to us that the addition of each vehicle under these circumstances must be determined, as a matter of law, to constitute a change in the basic policy in a “material respect” so as to trigger the necessity for an additional rejection of UM coverage. See Hartford Accident and Indemnity Company v. Sheffield, 375 So.2d 598, 600 (Fla. 3rd DCA 1979), Footnote 3.

Our analysis of the Fourth District’s Van Iderstyne decision presents the issue involved and the rationale behind the decision in a somewhat different light than did a different panel of the same court in Wain, supra. With regard to Van Iderstyne, the court stated:

We have previously held that the addition of an automobile by endorsement to an insurance policy required the insurance company to afford the insured a new opportunity to reject uninsured motorist coverage. United States Fire Insurance Company v. Van Iderstyne, 347 So.2d 672 (Fla. 4th DCA 1977). By implication that case stands for the proposition that the addition of an automobile, requiring the establishment of new and different insurance coverages, constitutes a material change in the policy. Thus, the “renewal policy” exception does not apply. The issue here is whether a substitution of automobiles similarly constitutes a material change. This question has recently been answered in the negative. State Farm Mutual Automobile Insurance Company v. Bergman, 387 So.2d 494 (Fla. 5th DCA 1980).

However, we think it is pertinent to mention that the Wain opinion expressly adopts the “controlling law” found in Sheffield, supra, under which the test is whether the “original policy” has been changed in any material respect (Waln, 395 So.2d at 1214). “If it has,” said the court, “then the policy is ‘new’ rather than a ‘renewal’ and the insurance company is required to provide the insured with the opportunity to reject uninsured motorist coverage or to elect a decreased amount.” 395 So.2d at 1214. The Wain opinion concluded on this issue (Id. at 1214):

We hold that in the absence of additional specifically requested changes, in the case of a simple substitution of automobiles, where the number of automobiles remains the same and there is no change in the bodily injury liability coverages the policy has not been changed in any material respect. That being so, the policy in effect here at the time of the accident was a renewal policy ...

Although the Wain opinion indicates otherwise, in our view once it is determined that the policy is not changed in a material respect it is unnecessary to also find that the change is a “renewal policy” in order to relieve the company of the need to secure a new rejection of UM coverage.

In accordance with the trial court’s findings that no changes in the fleet policy were made other than the addition and deletion of vehicles from time to time during the policy period, as contemplated by the parties at the time of issuance of the original policy, and in contemplation of which the insured at the time of the issuance of the original policy rejected higher limits of UM coverage, we hold the mere addition by endorsement of another vehicle to the coverage afforded by the original fleet policy, during the policy period, does not constitute the issuance of a “new insurance policy” under the statute. Thus, in our view there is no more reason here than in the Bergman case, supra, to hold that the carrier “must go through the full rejection routine regarding full PIP coverage, full uninsured motorist coverage or any other requirements which the statutes compel when the policy is first written.” (Id. at 495)

There is no policy reason to justify a “windfall” recovery of insurance benefits not ordered, not paid for, and not desired until after an accident occurs, where the insurance company has complied with all requirements of the law imposed upon it when the policy was issued, and there has been no change in the law, in the interim, requiring any further compliance. The facts strongly indicate that the trial judge’s adjudication of the respective rights and obligations of the parties was correct since, as the trial court pointed out in the judgment appealed, the insured subsequent to the accident renewed his policy and again rejected the additional UM coverage.

Accordingly, the declaratory judgment appealed is AFFIRMED.

SHIVERS, J., concurs.

ERVIN, J., specially concurs with opinion.

ERVIN, Judge,

specially concurring.

Although I agree with my colleagues in affirming the declaratory judgment, I cannot agree with the majority that United States Fire Insurance Company v. Van Iderstyne, 347 So.2d 672 (Fla. 4th DCA 1977), does not require the insurer to inform the insured when a new vehicle is sought to be added to the policy by endorsement, after the insured has previously rejected extra coverage as to the policy itself, since it is my view that Van Iderstyne holds that the addition of another vehicle by endorsement must be considered a new insurance policy, mandating an informed rejection by the insured of uninsured or underinsured motorist coverage up to the limits of the insured’s bodily injury liability limits. Van Iderstyne clearly states that an endorsement to an existing policy, requiring “additional coverage for [an] added car with the concomitant additional premium constituted a severable and separate contract ... ”, and as such it had to meet the provisions of Section 627.727(1). 347 So.2d at 673 (e. s.). The majority however views Van Iderstyne as inapplicable to the facts before us because here — unlike the circumstances in Van Iderstyne — there was no amendment to the statute changing the rights and obligations of the parties by providing underin-sured motorist coverage between the time of the issuance of the policy and the endorsement adding the vehicle. This construction is, I suggest, neither consistent with Van Iderstyne, nor with a later opinion of the Fourth District. See United States Fidelity and Guaranty Company v. Waln, 395 So.2d 1211 (Fla. 4th DCA 1981).

There are significant differences for insurance purposes between a vehicle added to an existing policy and a substituted or replaced vehicle. Admittedly the “replacement” and “fleet provisions” share the common feature which is “to provide coverage, under specified conditions, for vehicles not described in the policy without the necessity of first securing the insurer’s approval of the change or addition”, 7 Am.Jur.2d, Automobile Insurance, § 225 (1980), and admittedly both provisions are often included in an “automatic insurance” clause. On the other hand, the “‘replacement’ provision deals with automobiles acquired to replace those described in the policy, and the ‘blanket’ or ‘fleet’ provision deals with those added to those already insured vehicles.” Id. (e. s.) This distinction is crucial to the legislative requirement that the insurer obtain a rejection of UM coverage. If a vehicle is replaced in a policy, the premium structure and the risk allocation factors theoretically remain constant. Yet, to the contrary, the addition of a vehicle to a fleet policy will expose the insured to a risk quantitatively different from the mere substitution of one vehicle for another. It is this increased risk to which Section 627.-727(1) is addressed, requiring a knowing rejection of UM coverage as to limits less than those afforded for BI coverage.

Nevertheless, the primary difficulty I have with the appellant’s position is that I believe a fair interpretation of both the insurance agent’s testimony and that of the named insured was that Peavy, the named insured, intended for the same limits of UM coverage which had been placed on vehicles under the fleet policy effective February 1, 1978 to apply also to the vehicle involved in the accident, which was later added to the policy. Peavy testified that he would at any event have obtained the same UM coverage on the added vehicle as had been afforded to him for the vehicles listed in the policy at the inception of the policy year. He stated that the vehicle had been used exclusively for commercial purposes, and apparently considered that the workers’ compensation insurance he had procured for his employees, together with the $10,-000/$20,000 limits of uninsured motorist coverage, would be adequate for his employees’ needs insofar as any accidents which might occur to them within the scope of their employment. There was no testimony showing that the vehicle involved in the accident, a pick-up truck, would have been used by any family members, who were not employees, thus requiring additional UM coverage for them as class one insureds. Cf. Mullis v. State Farm Automobile Ins. Co., 252 So.2d 229 (Fla.1971).

I agree also with the majority that Peavy’s intent as to the amount of UM coverage he desired can be gleaned from the fact that he purchased the same limits of UM insurance the next succeeding policy year following the accident as he had the preceding year. Under the circumstances, I would conclude that even though Peavy was not given the opportunity at the time the vehicle was added to the policy to request UM coverage in the same amount as was available to him under his policy for BI liability, he nevertheless later knowingly rejected his right to claim any greater amount, and that rejection may, consistently with Section 627.727, be applied retroactively to the time the vehicle was added to the policy, thereby causing any additional insured to be bound by it.

Maxwell, however, relies upon the omnibus clause, typical in most automobile insurance policies, as giving him, a permissive operator of the vehicle, the status of an additional insured, and as such, upon the happening of an accident, affording him the same rights under the policy as the named insured. See 7 Am.Jur.2d, Automobile Insurance, § 249 (1980). Nevertheless, the rights of the additional insured can be no greater than those of the named insured, and once the latter knowingly rejects such coverage, the former is considered bound by that action. This conclusion is made evident by a recent decision of the Arizona Supreme Court which had before it the issue of whether an injured employee would be entitled, as an additional insured under the omnibus clause of his employer’s automobile insurance policy, to be afforded also the right to reject UM coverage, notwithstanding his employer’s decision not to accept it. Shaffer v. Southern Union Cas. Co., Inc., 112 Ariz. 145, 539 P.2d 902 (1975). In disapproving the employee’s contention, the court noted that the 1965 Arizona statute — as does Florida’s — permits only the named insured to reject UM coverage. The court concluded that it did not believe that the legislature intended “to give an additional insured the right to accept or reject uninsured motorist coverage when he did not pay the premium or contract for the coverage.” 539 P.2d at 903.

Florida cases, in construing Section 627.-727, have uniformly held that if the named insured rejects UM coverage at the inception of the policy period, the additional insured must be considered bound by such rejection. Kohly v. Royal Indemnity Co., 190 So.2d 819 (Fla. 3d DCA 1966), cert. den., 200 So.2d 813 (Fla.1967); Continental Ins. Co. v. Roth, 388 So.2d 617 (Fla. 3d DCA 1980); Morpurgo v. Greyhound Rent-A-Car, Inc., 339 So.2d 718 (Fla. 1st DCA 1976); Mattingly v. Liberty Mut. Ins. Co., 363 So.2d 147 (Fla. 4th DCA 1978). In Mattingly, the Fourth District Court of Appeal specifically stated that the lessee of an automobile was afforded UM coverage in such amounts selected by the lessor, “which, as the named insured, was the only party privileged to select coverage in a lesser amount.” 363 So.2d at 149.

Because of the circumstances peculiar to this case, I would hold that the named insured’s later explicit rejection of additional UM coverage of a vehicle added to the policy may be retroactively applied to the date the vehicle was added, thereby binding Maxwell, the additional insured, to the limits of UM insurance actually available under the policy.

      . I am not unaware of the holding that a named insured’s rejection of UM coverage, made after the issuance of the policy and following an accident, cannot be applied ab initio to the inception of the policy date. Manchester Insurance & Indemnity Company v. Jones, 317 So.2d 786 (Fla. 3d DCA 1975). The Manchester decision is distinguishable, however, from the instant case in several respects. First, the named insured was the party who sought UM coverage, not, as here, the additional insured. Second, the named insured repudiated his earlier rejection of UM coverage, contending he was unaware of the consequences of his actions. Manchester stated that there was conflicting evidence before the jury, thereby permitting a determination as to whether the insured had knowingly rejected such coverage.


text:
    Oscar SARMIENTO, Appellant, v. STOCKTON, WHATLEY, DAVIN & CO., Appellee.
    No. 80-2246.
    District Court of Appeal of Florida, Third District.
    June 16, 1981.
    Stern & Kneski, Miami, for appellant.
    Stephen I. Wiener and James M. Fish-man, Miami, for appellee.
    Before HUBBART, C. J., and BARK-DULL and HENDRY, JJ.
   PER CURIAM.

This appeal is taken from a final summary judgment which held that the appellant’s judgment lien was inferior to the appellee’s mortgage.

On January 11,1977, the appellant recovered a judgment in the amount of $3,822.00 against one Emmie Turner. The judgment was recorded that same day. On November 15, 1979, Turner purchased certain real property in Dade County from a third party, executing a mortgage thereon in the amount of $24,950.00 in favor of the appel-lee herein.’ Thereafter, Turner sold the property to Kathleen Faulkner, who defaulted on the mortgage. On or about July 11, 1980, the appellee herein filed a mortgage foreclosure action against Faulkner, the appellant herein and certain others. Notice of lis pendens was also filed. The appellant answered this foreclosure action, contending his prior recorded lien takes priority over the appellee’s mortgage. Both the appellant and the appellee moved for summary judgments, each contending their claim was prior to the other’s. After hearing thereon, the final summary judgment appealed herein was entered.

On appeal, the appellant contends the trial court erred in holding that a mortgage executed in favor of a party other than the vendor, in order to finance a part of the purchase price, is superior in dignity to a prior recorded judgment lien against the mortgagor-vendee. The reason therefor being that the mortgage lien is not a true purchase money mortgage, in that the mortgage was not executed in favor of the vendor but in favor of a third party.

The appellant’s contention is without merit and this case will be affirmed on the authority of Associates Discount Corporation v. Gomes, 338 So.2d 552 (Fla.3d DCA 1976); Shilling v. Bank of Sulphur Springs, 147 So. 218 (Fla.1933); Cheves v. First National Bank of Gainesville, 79 Fla. 34, 83 So. 870 (1920); 2 Boyer, Florida Real Estate Transactions, § 32.04(1). In the latter authority, the following is found:

“As long as it is executed in conjunction with the purchase and given as security for a portion of the purchase price, it is a purchase money mortgage, although the money is advanced by a third party and the mortgage is executed in his favor.” page 32-27.

Affirmed.


author: DANIEL S. PEARSON, Judge.

text:
    R & A TRUCKING, INC., Appellant, v. GENERAL HOST CORPORATION, d/b/a Li’l General Stores, Appellee.
    No. 80-2444.
    District Court of Appeal of Florida, Third District.
    June 16, 1981.

      Fred M. Penny, Miami, for appellant.
    Trenam, Simmons, Kemker, Scharf, Bar-kin, Frye & O’Neill and William A. Wares, Tampa, for appellee.
    Before HUBBART, C. J., and SCHWARTZ and DANIEL S. PEARSON, JJ.
   DANIEL S. PEARSON, Judge.

While we agree with appellant’s assertion that a notice which it filed in 1977 that the action was at issue and ready to be set for trial should have precluded the 1979 dismissal of its complaint for failure to prosecute despite the lack of record activity during the interim years, Visuna v. Metropolitan Transit Authority, 353 So.2d 183 (Fla. 3d DCA 1977); Downer v. Mercer, 324 So.2d 116 (Fla. 3d DCA 1975); City of Miami v. Dade County, 321 So.2d 140 (Fla. 3d DCA 1975); accord, Biscayne Construction Company v. Metropolitan Dade County, 388 So.2d 329 (Fla. 3d DCA 1980); contra, Treeshore, Inc. v. Basic Asphalt and Construction Corporation, 354 So.2d 976 (Fla. 1st DCA 1978); Palatka Housing Authority v. Betts, 349 So.2d 784 (Fla. 1st DCA 1977); Allen v. Gaither, 112 So.2d 855 (Fla. 1st DCA 1959), this assertion comes much too late to be entertained by us. The trial court’s order of dismissal was entered, after reasonable notice, see Fla.R.Civ.P. 1.420(e), on February 12, 1979. R & A neither sought a timely rehearing, see Gries Investment Company v. Chelton, 388 So.2d 1281 (Fla. 3d DCA 1980); see also Florida East Coast Railway Company v. Southern Sanitation Service, Inc., 370 So.2d 1200 (Fla. 4th DCA 1979), nor appealed. Instead, nearly a year and a half later, it moved to set aside the dismissal and now attempts to appeal from a denial of that motion. R & A’s appeal is untimely. See Wagner v. Bieley, Wagner & Associates, Inc., 263 So.2d 1 (Fla. 1972); Florida East Coast Railway Company v. Southern Sanitation Service, Inc., supra. Accordingly, the appeal is

Dismissed.

      . R & A moved to set aside the dismissal on the same ground it asserts on this appeal. Thus, the motion suggested no ground for relief under Florida Rule of Civil Procedure 1.540 and, moreover, under any potentially applicable provisions of that rule, was untimely. Waiswilos v. Feacher, 370 So.2d 1250 (Ha. 4th DCA 1979); Brown v. Morella, 371 So.2d 571 (Fla. 4th DCA 1979) (Anstead, J., dissenting). Even under former Rule 1.420(e), inapplicable to these proceedings, which permitted a motion to reinstate, such a motion was required to be made within thirty days of dismissal. Waiswilos v. Feacher, supra.


text:
    Edyth FLEISCHER, Appellant, v. Lee BONNER, Appellee.
    No. 80-783.
    District Court of Appeal of Florida, Fourth District.
    June 16, 1981.
    Rehearing Denied June 29, 1981.
    Curtis L. Witters of Glickman & Witters, West Palm Beach, for appellant.
    Edna L. Caruso, and Johnson & Bakst, P.A., West Palm Beach, for appellee.
   PER CURIAM.

This cause is affirmed.

The Appellee’s motion for attorneys fees under the subject contract is hereby granted and the cause remanded to the trial court for the purpose of determining a reasonable amount to be awarded to Appellee’s counsel on appeal. However, any proceedings relative to attorneys fees shall not delay the complete fulfillment of the final judgment hereby affirmed which fulfillment shall take place no later than thirty (30) days from the date hereof.

Any petition for rehearing shall be physically filed in this courthouse within two (2) days from the date hereof strictly in accordance with the provisions of Florida Appellate Rule 9.330.

AFFIRMED.

LETTS, C. J., and MOORE and HERSEY, JJ., concur.


text:
    Rosalia ARCO and Nardo Arco, her husband, Appellants, v. STATE FARM MUTUAL AUTOMOBILE INSURANCE CO., a Foreign Corporation, and West American Insurance Company, a Foreign Corporation, Appellee.
    No. 78-766.
    District Court of Appeal of Florida, Fourth District.
    June 17, 1981.
    Ronald V. Alvarez and Larry Klein, West Palm Beach, for appellants.
    Marjorie D. Gadarian of Jones, Paine & Foster, P. A. West Palm Beach, for Appel-lee-West American Ins. Co.
   PER CURIAM.

The final order granting appellee’s motion to dismiss the appellants’ complaint with prejudice is reversed on the authority of South Carolina Insurance Co. v. Kokay, 298 So.2d 1355 (Fla.Case No. 58,830, Opinion filed May 21, 1981).

REVERSED AND REMANDED FOR FURTHER PROCEEDINGS.

DOWNEY, GLICKENSTEIN and HURLEY, JJ., concur.


text:
    STATE of Florida, Appellant, v. Leroy GREEN, Appellee.
    No. 79-1036.
    District Court of Appeal of Florida, Fourth District.
    June 17, 1981.
    Jim Smith, Atty. Gen., Tallahassee, and Max Rudmann, Asst. Atty. Gen., West Palm Beach, for appellant.
    John R. Howes, Orlando, for appellee.
   PER CURIAM.

AFFIRMED. See Miller v. State (Fla. Supreme Court case No. 56,831, opinion filed May 28, 1981).

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


text:
    Inell THOMPSON and Glen Thompson, her husband, Appellants, v. Earl Michael GRIMM, United States Fidelity & Guaranty Company, Allstate Insurance Company and Fireman’s Fund Insurance Company, all foreign corporations, Appellees.
    Nos. 79-2080, 79-2189.
    District Court of Appeal of Florida, Fourth District.
    June 17, 1981.
    Martin R. Dishowitz of Riskin & Dishow-itz, P.A., Hollywood, for appellants.
    Burdick & Donahoe, Fort Lauderdale, and Jeanne Heyward, Miami, for appellee, Allstate Insurance Company.
    K. Jack Breiden of Pomeroy, Betts, Pom-eroy & Moses, Fort Lauderdale, for appel-lee, Fireman’s Fund.
   PER CURIAM.

Reversed on authority of South Carolina Insurance Company v. Kokay, 298 So.2d 1355, (Florida Case No. 58,830, opinion filed May 21, 1981).

MOORE, BERANEK and HERSEY, JJ., concur.


text:
    Robert V. ETTARI, Appellant, v. June A. ETTARI, Appellee.
    No. 80-319.
    District Court of Appeal of Florida, Fourth District.
    June 17, 1981.
    John L. Avery, Jr., West Palm Beach, for appellant.
    Montgomery, Lytal, Reiter, Denney & Se-arcy, P. A. and Edna L. Caruso, West Palm Beach, for appellee.
   PER CURIAM.

Affirmed on the authority of Canakaris v. Canakaris, 382 So.2d 1197 (Fla.1980).

MOORE, BERANEK and HURLEY, JJ., concur.


author: BERANEK, Judge.

text:
    Ronald Bruce JANSSON, Appellant, v. STATE of Florida, Appellee.
    No. 80-1127.
    District Court of Appeal of Florida, Fourth District.
    June 17, 1981.

      Richard L. Jorandby, Public Defender, and Allen J. DeWeese, Asst. Public Defender, West Palm Beach, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Max Rudmann, Asst. Atty. Gen., West Palm Beach, for appellee.
   BERANEK, Judge.

The defendant/appellant was found guilty by a jury of burglary and possession of burglary tools. The court sentenced defendant on only the burglary charge. Defendant appeals asserting five points. We affirm and conclude that only one point merits discussion.

Defendant asserts error in that the trial court considered his prior arrests not leading to convictions in sentencing him. After the jury’s verdict, the defendant requested a presentence investigation, which was prepared in accordance with Section 921.231, Florida Statutes (1979). The presentence investigation report (PSI) indicated defendant had been previously arrested on 18 occasions, generally for offenses against property and .that most of these charges had been dismissed or turned over to other agencies. The PSI also indicated at least one prior conviction and sentence and one probation term.

At the initially scheduled sentencing hearing, the trial court had been supplied with a copy of the presentence investigation. The State Attorney also supplied the court and defense counsel with a compendium of police reports and other factual materials which purported to show the factual basis and details of each prior arrest. The trial judge stated he had not read these factual materials but had considered the PSI which merely listed the prior arrests and indicated that convictions had not resulted from most of these arrests. The court questioned whether the prior arrests not resulting in convictions could be considered for purposes of sentencing. The court continued the hearing and rescheduled the matter so that the issue of prior arrests could be thoroughly considered.

At the second sentencing hearing, the court further considered the question based on argument of counsel. In addition, defense counsel attempted to clarify the prior conviction shown in the PSI. Defense counsel asserted that this conviction had actually been reversed or vacated. Once again, the sentencing hearing was continued pending further clarification. Eventually, at a third sentencing hearing, defendant was sentenced to the maximum of 15 years for the burglary. Although three separate hearings were held, defendant never offered evidence regarding any of the prior arrests. The defendant did demonstrate that the one prior conviction was a County Court conviction which had been vacated on habeas corpus in the Circuit Court. Although the factual background on all of the arrests was available, defendant objected to consideration of these matters and further objected to the court’s considering the fact of the arrests.

The trial court candidly discussed his consideration of the arrests in regard to the sentencing. The court-indicated that the primary reason for his sentence was not the arrest record of the defendant, but was in fact the crime in question. The court concluded that the defendant’s burglary of an occupied dwelling in a manner showing sophistication and a professional approach warranted the sentence given. The court further commented he was not disregarding the prior arrests, but that these played a very minimal part in his consideration of the appropriate sentence. It is clear that the court recognized that an arrest was not to be equated to a finding of guilt of the crime charged. We conclude that no error occurred in the sentencing proceeding and affirm.

The defendant relies upon United States v. Tucker, 404 U.S. 443, 92 S.Ct. 589, 30 L.Ed.2d 592 (1972), and contends that an arrest “does not amount to accurate information that the defendant committed a crime.” This is certainly true but has no application here. The trial judge clearly stated the limited significance of an arrest during the three separate sentencing procedures. Tucker is inapplicable because there the trial court considered prior convictions which had been subsequently reversed on appeal. The trial court in that case was not aware of the reversal on appeal and the Supreme Court held that the trial court had thus not exercised an informed discretion in sentencing the defendant because the sentence was founded “upon misinformation of constitutional magnitude.” Tucker and the numerous cases following it all relate to a trial court’s consideration of misinformation. There was no misinformation presented in the instant case.

We find no United States Supreme Court precedent requiring exclusion of arrests not leading to convictions in state sentencing procedures. In Williams v. New York, 337 U.S. 241, 69 S.Ct. 1079, 93 L.Ed. 1337 (1949), the court established that under modern philosophy of penology punishment should be tailored to fit the offender and not merely the crime. There, the trial court was declared to have broad discretionary powers in the sources and types of information used to assist him in determining the kind and extent of punishment to be imposed. Information provided by the probation department and other sources was approved and it was held that due process was not violated when the sentence was based upon information supplied by witnesses with whom the accused had not been confronted and as to whom he had no opportunity for cross-examination or rebuttal. Williams even approved the trial court’s comments to the effect that the defendant had been identified as the perpetrator of various pri- or burglaries even though he had not been charged or convicted of those offenses. Williams has been recently reaffirmed in Roberts v. United States, 445 U.S. 552, 100 S.Ct. 1358, 63 L.Ed.2d 622 (1980), and in United States v. Grayson, 438 U.S. 41, 98 S.Ct. 2610, 57 L.Ed.2d 582 (1978). In Roberts the defendant pled guilty to two counts of distribution of cocaine and in the sentencing process, the trial court considered the defendant’s refusal to cooperate with federal authorities in the investigation of a related drug conspiracy. Roberts reaffirmed Williams as to the extremely broad discretion in the trial court’s inquiry regarding sentencing. It was held that no “misinformation” was involved and that defendant’s failure to cooperate, although not a crime, had been properly considered.

Florida does not appear to have squarely answered the question but Mincey v. State, 256 So.2d 545 (Fla.3d DCA 1972), and County of Dade v. Baird, 211 So.2d 609 (Fla.3d DCA 1968), clearly support the State’s view that arrests may be considered. The States have split on the subject. See Annot. 96 A.L.R.2d 768 § 7(d). Illinois and South Carolina are examples of States holding in the defendant’s favor on this issue. Illinois has, for unknown reasons, considered the question a disproportionate number of times and generally holds that mere prior arrests are not properly considered at sentencing. People v. Riley, 376 Ill. 364, 33 N.E.2d 872 (Ill.1941), cert. denied, 313 U.S. 586, 61 S.Ct. 1118, 85 L.Ed. 1542 (1941). However, even Illinois applies this on a seemingly case-by-case basis depending upon demonstration of prejudice. People v. Handley, 51 Ill.App.3d 68, 9 Ill.Dec. 148, 366 N.E.2d 405 (1977); People v. Long, 30 Ill.App.3d 815, 333 N.E.2d 534 (1975) and People v. Whiteaker, 30 Ill.App.3d 848, 334 N.E.2d 200 (1975).

The conflicting view which allows consideration of arrests not leading to conviction for purposes of sentencing is represented by such States as California, Texas, New Mexico and Hawaii. See People v. Jackson, 78 Cal.App.8d 533, 144 Cal.Rptr. 199 (1978); People v. Phillips, 76 Cal.App.3d 207, 142 Cal.Rptr. 658 (1977); State v. Montoya, 91 N.M. 425, 575 P.2d 609, cert. denied, 91 N.M. 491, 576 P.2d 297 (1978); Angelle v. State, 571 S.W.2d 301 (Tex.Cr.1978); and State v. Murphy, 59 Hawaii 1, 575 P.2d 448 (1978).

We consider the view expressed in State v. Murphy, supra, to be the appropriate rule. We hold that a trial court can consider a defendant’s prior arrests not leading to convictions for purposes of sentencing so long as the court recognizes that these arrests are not convictions or findings of guilt, and the defendant is given an opportunity to explain or offer evidence on the issue of his prior arrests. We are further persuaded to this view by Section 921.231, Florida Statutes (1979), which prescribes the contents of a presentence investigation report in Florida. This report is, by definition, of a hearsay nature, and is to include a complete description of the circumstances surrounding the criminal activity in question. It is also to include a description of the offender’s educational background, his employment background, his military record, his employment history, along with his social history, including the broadest consideration possible. In our opinion, if a court can consider a hearsay report of a defendant’s social, educational, medical, psychiatric, and psychological history, it should also be able to consider the individual’s arrest record so long as it is accurate and the opportunity to explain or otherwise rebut it is given.

The judgment and conviction below are therefore affirmed.

LETTS, C.J., and MOORE, J., concur.


text:
    Nina Foreman SPRAGUE, Appellant, v. John Robert SPRAGUE, Appellee.
    No. 80-1157.
    District Court of Appeal of Florida, Fourth District.
    June 17, 1981.
    Joel M. Weissman of Law Offices of Ronald Sales, P. A., West Palm Beach, for appellant.
    Joseph S. Karp of Bernstein, Sharff, Monchick & Karp, West Palm Beach, for appellee.
   PER CURIAM.

AFFIRMED. See Barnhill v. Barnhill, 353 So.2d 923, 925 (Fla. 4th DCA 1978).

ANSTEAD, HERSEY and GLICK-STEIN, JJ., concur.


author: SHARP, Judge.

text:
    Marcie W. SKINNER, Appellant, v. STATE of Florida, Appellee.
    No. 80-975.
    District Court of Appeal of Florida, Fifth District.
    June 17, 1981.

      James B. Gibson, Public Defender, and Brynn Newton, Asst. Public Defender, Day-tona Beach, and Marcie W. Skinner, pro se, Avon Park, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and C. Michael Barnette, Asst. Atty. Gen., Day-tona Beach, for appellee.
   SHARP, Judge.

Skinner appeals from a judgment adjudicating him guilty of robbery. The public defender filed an Anders motion and brief, requesting leave to withdraw as counsel for appellant. Appellant filed a pro se brief in which he questioned the validity of his plea due to his possible incompetency at the time the plea was entered.

The appellant pled nolo contendere and failed to reserve his right to appeal any issue. By so doing appellant waived his right to appeal all matters relating to the judgment except certain appealable issues which might have occurred contemporaneously with the entry of the plea. Fla.R. App.P. 9.140(b)(1); Fla.R.Crim.P. 3.172(c)(iv). See Robinson v. State, 373 So.2d 898 (Fla.1979). This limited class of issues set out in Robinson includes “the voluntary and intelligent character of the plea.” However, Robinson provides that an appeal from a guilty plea should never be a substitute for a motion to withdraw a plea and such issues should first be presented to the trial court. This court has held that the same principle applies to a plea of nolo contendere entered without a reservation of the right to appeal. In the Interest of: S. C. v. State, 388 So.2d 643 (Fla. 5th DCA 1980).

Appellant did not seek to withdraw his plea before the trial court. Therefore, we have no jurisdiction to entertain this appeal. Accordingly, the appeal is dismissed without prejudice to appellant to seek appropriate collateral relief in the trial court. Gastineau v. State, 398 So.2d 492 (Fla. 5th DCA 1981); In the Interest of: S. C. v. State, 388 So.2d 643 (Fla. 5th DCA 1980); Johnson v. State, 388 So.2d 621 (Fla. 5th DCA 1980).

The public defender’s motion to withdraw is hereby granted.

DISMISSED.

ORFINGER and COWART, JJ., concur.

      . Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967).


author: DAUKSCH, Chief Judge.

text:
    John David JONES and Government Employees Insurance Co., Appellants, v. Lewis P. BARWICK and State Farm Mutual Automobile Insurance Company, Appellees.
    No. 79-117/T4-370.
    District Court of Appeal of Florida, Fifth District.
    June 17, 1981.
    W. Marvin Hardy, III of Gurney, Gurney & Handley, P. A., Orlando, for appellants.
    James 0. Driscoll of Driscoll, Langston, Layton & Kane, P. A., Orlando, for appel-lee, State Farm Mut. Auto. Ins. Co.
   DAUKSCH, Chief Judge.

AFFIRMED on the authority of Florida Farm Bureau Ins. Co. v. Government Employees Ins. Co., 387 So.2d 932 (Fla.1980).

COBB and FRANK D. UPCHURCH, Jr., JJ., concur.

Opinion on appeal after remand, 386 So. 2d 7.


text:
    TROPIC TERRACE GARDENS CONDOMINIUM ASSOCIATION, INC., Appellant, v. Gerald B. MOODY, Mary S. Moody, and Suburban Corporation, Appellees.
    No. 80-793.
    District Court of Appeal of Florida, Second District.
    June 17, 1981.
    Wade H. Parsons of Nuckolls, Parsons, Johnson & Fernandez, Fort Myers, for appellant.
    Robert L. Donald and William H. Shields of Pavese, Shields, Garner, Haverfield, Kluttz & Cottrell, Fort Myers, for appellees.
   PER CURIAM.

In the course of this litigation the developer made an offer of a moratorium on the escalation of rentals under the recreation lease which was incorporated into the final judgment. However, the final judgment inadvertently limited the benefits of the moratorium to the original purchasers and those owning the apartments on November 1, 1975, when the record reflects that offer was intended to include original purchasers and those owning apartments on the day of the offer, which was September 6, 1979. Accordingly, the two paragraphs of the final judgment which recite the moratorium are hereby amended to read as follows:

It is further ORDERED, ADJUDGED and DECREED by the Court that the offer submitted to the Court on September 6, 1979, by the Defendant/Counter-Plaintiff is hereby accepted and on the basis of this offer, it is ORDERED, ADJUDGED and DECREED that those original purchasers and owners who are bound under the Lease on the date of the offer shall receive a moratorium on any increases in the ground rent from November 1, 1975. That is, a ten (10) year period shall be computed from November 1,1975 and during this period the acceleration clauses in the recreation lease are not enforceable.
It is further ORDERED, ADJUDGED and DECREED that the formula provided in the Lease for increasing the ground rent will not commence to act under the five (5) year increment period until five (5) years have expired from the ten (10) year period. Consequently, the first ground rent increases that will be permitted will be fifteen (15) years from November 1, 1975. The protection offered by the Defendant/Counter-Plaintiff, would not apply to any persons who were subsequent purchasers after September 6, 1979, only the original purchasers or those persons owning the apartments on September 6, 1979. Any subsequent resale would be subject to the Lease as it exists. This protection offered by the Defendant/Counter-Plaintiff does not run with the land, but does apply to the current occupancies and transfers by operation of law. At such time as the fifteen (15) years expires, the base date in the Lease has been determined to be and is hereby established as 1971, the date of the Lease. All future increases, when effective, shall be computed from that base date.

As amended, the judgment is AFFIRMED.

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


author: HOBSON, Acting Chief Judge.

text:
    STATE of Florida, Petitioner, v. Thomas Wayne COX, Respondent.
    No. 80-2118.
    District Court of Appeal of Florida, Second District.
    June 17, 1981.
    Jim Smith, Atty. Gen., Tallahassee, and Peggy A. Quince, Asst. Atty. Gen., Tampa, for petitioner.
    Jerry Hill, Public Defender, and W. C. McLain, Asst. Public Defender, Bartow, for respondent.
   HOBSON, Acting Chief Judge.

The State petitions for a writ of certiora-ri to quash a judgment and sentence. The State contends that the trial court erred in accepting respondent/defendant’s plea to a lesser included offense over the objection of the state attorney. We agree and reverse.

Respondent Cox was charged with robbery. Before the trial judge he changed his previously entered not guilty plea to a plea of guilty to strong-arm robbery with the condition of receiving not more than three years imprisonment. This plea was accepted and adjudication was withheld pending a PSI report.

Subsequently, respondent appeared again before the court and requested a withdrawal of his guilty plea, which was granted. Respondent then asked to enter a plea of guilty to petit theft. The state attorney duly voiced her objections to a plea to the lesser offense. The court, however, concluded that it could not in good conscience sentence Cox on the robbery charge, as his codefendant had been convicted of petit theft by a jury. The court then allowed Cox to plead guilty to the offense of petit theft.

We believe that Florida Rule of Criminal Procedure 3.170(g) is a recognition of the prosecutor’s role when a defendant pleads guilty to any lesser offense than that charged in the information. Rule 3.170(g) reads as such:

(g) Plea of Guilty to Lesser Included Offense or Lesser Degree. The defendant, with the consent of the court and of the prosecuting attorney, may plead guilty to any lesser offense than that charged which is included in the offense charged in the indictment or information or to any lesser degree of the offense charged, (emphasis ours)

In the instant case the prosecuting attorney specifically objected to the defendant pleading guilty to any lesser offense.

Although we have been unable to find any Florida cases dealing with this issue, in United States v. Gray, 438 F.2d 1160 (9th Cir.1971), the court held that under the Federal Rules of Criminal Procedure, from which the Florida rules are derived, the district court had no authority without the consent of the government to accept pleas of guilty to lesser offenses.

Therefore, we hold that the trial judge had no authority over the objection of the state attorney to accept from respondent a plea of guilty to the lesser offense. In doing so, we note the opinion of our sister court in State v. Laury, 397 So.2d 960 (Fla. 5th DCA 1981), which disapproves of a trial court accepting a plea by a defendant to second degree murder but later, over the state’s objection, adjudicating the defendant guilty of manslaughter. We disagree however with the holding in Laury that the adjudication of guilt on the lesser manslaughter charge, even though erroneous, disposed of the charges of the higher degree of the offense so as to invalidate on a double jeopardy theory any further proceedings on the higher degree of the offense as originally pled to by the defendant. Since the trial court acted improperly and exceeded its jurisdiction and authority, jeopardy does not attach. Vinson v. State, 345 So.2d 711 (Fla.1977).

The judgment and sentence of the trial judge is quashed and the petition for writ of certiorari is granted.

GRIMES and CAMPBELL, JJ., concur.