text:
    Luther Charles CARTER v. STATE.
    6 Div. 665.
    Court of Criminal Appeals of Alabama.
    June 29, 1982.
    Rehearing Denied July 27, 1982.
    Certiorari Denied, Oct. 22, 1982 Alabama Supreme Court 81-958.

      Larry Waites, Birmingham, for appellant.
    Charles A. Graddick, Atty. Gen., and Leu-ra J. Garrett, Asst. Atty. Gen., for appellee.
   DeCARLO, Judge.

Robbery in the first degree; life.

Mrs. Eula Mae Jackson testified that on the evening of November 2, 1980, she, her three children, and her boyfriend, Barry Cook, were at her home when two men knocked at the door. Mrs. Jackson recognized the appellant as one of the two men and opened the door slightly to see what they wanted. Appellant and his companion pushed their way inside and demanded all her money. When she replied that she did not have any money, appellant’s companion pointed a gun at her while appellant went through her purse. She stated that jewelry valued at approximately $300, and cash in the amount of five to twenty-five dollars were taken. While the unknown companion held her at gunpoint, appellant went upstairs.

Mr. Barry Cook testified that he was upstairs watching TV when he heard one of Mrs. Jackson’s children scream, “Please don’t shoot my mother.” He removed a gun kept under the mattress, confronted appellant, who had reached the top of the stairs, and told him not to move or he would kill him. Meanwhile, appellant’s companion ran from the house and Mrs. Jackson and Mr. Cook held appellant until the police arrived.

I

At the close of the State’s case, appellant moved to exclude the testimony of Mrs. Eula Mae Jackson on the ground that she had lied under oath, and moved to exclude all the State’s evidence, arguing that it did not establish a prima facie case of first degree robbery because there was “no evidence that any weapon that was used was operable and/or was loaded.” We find no error in the denial of the motions.

Although there were inconsistencies in Mrs. Jackson’s testimony, and a conflict between her testimony and that of Birmingham Police Officer Thomas Martin, these discrepancies do not furnish grounds for a motion to exclude her testimony. They presented questions of fact for the jury, see Meade v. State, 390 So.2d 685 (Ala.Cr.App.), cert. denied, 390 So.2d 693 (Ala.1980).

In addition, the motion to exclude all the State’s evidence was properly overruled because, under § 13A-8-41(b), Code of Alabama (1975), it was unnecessary for the State to prove the gun was “operable and/or loaded.” Section 13A-8-41(b) provides the following:

“Possession then and there of an article used or fashioned in a manner to lead any person who is present reasonably to believe it to be a deadly weapon or dangerous instrument, or any verbal or other representation by the defendant that he is then and there so armed, is prima facie evidence under subsection (a) of this section that he was so armed.” [Emphasis added]

The commentary to § 13A-8-41(b), supra, explains that the section sets up, in effect, a presumption that any firearm is a deadly weapon for purposes of bringing the offense within the definition of robbery in the first degree:

“A difficult area is robbery by use of an unloaded, inoperable or dummy weapon. The basic theory of this article is to protect the citizen from fear for his or another’s health and safety. This should be aggravated only when there is actual serious physical injury inflicted or when the robber possesses an instrument which is readily capable of inflicting such injuries. However, it is sometimes difficult to prove that defendant actually was armed with a dangerous weapon, unless he is apprehended at the scene. In an effort to balance the needs for enforcement with the demands for appropriate penalties, § 13A-8-41 makes possession of an object reasonably believed to be a ‘deadly weapon’ or ‘dangerous instrument,” as defined in § 13A-1-2, or a representation by the defendant that he has one, prima facie evidence that he is armed.”

In order to reduce the grade of the offense, the defendant must then rebut the presumption:

“If in fact the defendant refutes this, he may still be convicted of robbery in a lesser degree. This provision is consistent with other recent criminal codes, e.g., Colorado Criminal Code, § 40-4-302; Michigan Revised Criminal Code, § 3305; and New York Penal Law, §§ 160.10, 160.15, amended 1969, so as to make the unrebutted appearance of a loaded firearm robbery in the first degree, and even the display of what appears to be a firearm, but shown by the defendant to have been unloaded, robbery in the second degree.” [Emphasis added]

We think it clear that when appellant’s companion held Mrs. Jackson at gunpoint while appellant ransacked her purse, she was reasonably led to believe the gun to be a deadly weapon. See Lidge v. State, 419 So.2d 610 (Ala.Cr.App.1982), and authorities cited therein. Because appellant presented no evidence to rebut the presumption that his companion’s gun was loaded, we find that the verdict of first degree robbery was fully warranted by the evidence.

The fact that it was appellant’s companion, and not appellant, who held the gun is immaterial. The jury could reasonably have concluded that appellant was present “to render assistance should it become necessary” in the robbery, see White v. State, 42 Ala.App. 249, 160 So.2d 496 (1964), and was therefore guilty of first degree robbery on the theory of aiding or abetting, see Ala.Code § 13A-2-23 (1975) (Commentary).

II

Appellant insists that the trial court erred when it denied his motion for a mistrial following the victim’s description of appellant as a “rogue.” From the record:

“Q. [By defense counsel] As a matter of fact, he had been to your house before, hadn’t he?
“A. No. He has never been to my house before.
“Q. As a matter of fact—
“A. Because I didn’t deal with people— with him. I know the people that he dealt with and all of them were rogues. And I just didn’t deal with those people.
“Q. O.K.
“MR. WAITES: [Defense counsel] And, Judge, we object to that as being unresponsive.
“THE COURT: Sustained. Disregard it, ladies and gentlemen. It’s not responsive.
“MR. WAITES: And we ask for a mistrial.
“THE COURT: Overruled.
“MR. WAITES: We except.
“THE COURT: Does everyone here understand that that’s to be disregarded and not to be considered. All right. I see affirmative acts on the part of the jury.”

In our judgment, any prejudice to appellant caused by the witness’ remark was cured by the judge’s prompt instruction to the jury. See Barbee v. State, 395 So.2d 1128 (Ala.Cr.App.1981).

Ill

Appellant claims that the trial court erred by granting the State’s challenge for cause to one of the prospective jurors. The venireman stated that he knew both the victim and the appellant. He lived in the same neighborhood with appellant and his nephew lived next to the victim. When asked whether he could give each side a fair hearing on the evidence, the following occurred:

“JUROR: I wouldn’t want to vote either way.
“MR. VAUGHN: [Assistant district attorney] Sir? I didn’t hear what you said.
“JUROR: I wouldn’t want to vote either way.
“MR. VAUGHN: Your Honor, I’d like to make a motion.
“THE COURT: All right. In other words, what you’re telling us, Mr. Cobb, is that even though your verdict would have to be based on the evidence and the law, because of your acquaintanceship with both of these people that that acquaintanceship with both these people would prevent you from deciding the ease on the law and on the facts?
“JUROR: Well, it’s a possibility that it might. I might be a little prejudiced since I know both of them.
“THE COURT: I see. All right. That’s exactly why these questions are asked, Mr. Cobb, and we appreciate you very much answering them. Very much so. And for that reason I’m going to excuse you.
“MR. WAITES: [Defense counsel] Of course, we would enter an objection, Judge.”

Although the prospective juror’s answers indicated reluctance and hesitation rather than definite inability to decide the case on the evidence alone, the trial judge was in a position to observe the demeanor and determine the prejudice of the venireman. The decision of a trial court to disqualify a juror on a challenge for cause is entitled to great weight and will not be disturbed on appeal unless clearly shown to be an abuse of discretion. Motes v. State, 356 So.2d 712 (Ala.Cr.App.), cert. denied, 356 So.2d 720 (Ala.1977). We do not find an abuse of discretion here.

IV

During closing argument by the State the following occurred:

“MR. VAUGHN: It sets up a standard whereby two people could team together and rob someone and as long as one didn’t appear to be particularly active in the robbery he gets to walk off scot-free. It’s pretty easy for somebody to get—
“MR. WAITES: Judge, that’s improper about what other people do or might not do or can do. We’re talking about this case right here. And I object to it. He knows that’s improper argument.
“THE COURT: Overruled.”

From the portion of the district attorney’s argument in the record before us, it is difficult to determine the context in which the quoted statement was made. However, it appears that the remark was a reply to argument by the defense, and was a legitimate comment on the fact that one does not escape criminal liability because he is the more passive accomplice without a weapon. In our judgment, the statement was not beyond the scope of permissible argument. See Payne v. State, 261 Ala. 397, 74 So.2d 630 (1954).

V

At appellant’s sentencing hearing the State introduced judgment entries of two prior convictions: one, of “Luther Carter” in Jefferson Circuit Court for theft of property in the first degree; and the other, of “Luther Charles Carter” on a two-count federal indictment in the Northern District of Alabama involving a check stolen out of the United States mail and presented with a forged endorsement. The sentence for each conviction was two years.

Finding that appellant had been previously convicted of two prior felonies and then had committed a Class A felony, the trial court sentenced appellant to life imprisonment according to the Habitual Felony Offender Statute, § 13A-5-9, Code of Alabama 1975.

Appellant claims that the prior convictions were erroneously used against him because (1) the State did not prove he was the same person convicted of the named prior offenses, and (2) the State did not prove that the prior offenses were felonies.

In Murphy v. State, 399 So.2d 340 (Ala.Cr.App.), cert. denied, 399 So.2d 347 (Ala.1981), this court held that the identity of the name on the record of a prior conviction raises “a prima facie presumption,” which if not rebutted by the defendant, is sufficient to show “the sameness of the person.” 399 So.2d at 346. The name “Luther Charles Carter” on the prior federal conviction was identical, but the name on the State conviction omitted the middle name “Charles.”

The judgment entry of the State conviction, however, revealed the same race, sex, birthdate and address as those given for the appellant on the affidavit and arrest warrant in the present case. Under these circumstances, we believe the evidence was sufficient to identify the appellant as the man previously convicted in Jefferson Circuit Court for theft of property in the first degree. See McCord v. State, 373 So.2d 1242 (Ala.Cr.App.1979).

Rule 6(b)(3)(iv) of the Alabama Rules of Criminal Procedure — Temporary Rules provides the following definition of a “felony” for purposes of sentencing under the Habitual Felony Offender law:

“Any conviction in any jurisdiction, including Alabama, shall be considered and determined to be a felony conviction if the conduct made the basis of that conviction constitutes a felony under Act 607, § 130(4), Acts of Alabama 1977, p. 812 (§ 13A-l-2(4), Alabama Criminal Code), or would have constituted a felony under that section had the conduct taken place in Alabama on or after January 1, 1980.”

Section 13A-l-2(4), Code of Alabama 1975, provides that an offense is a felony if the sentence authorized is over one year’s imprisonment. It is clear, therefore, that appellant’s prior conviction in Jefferson Circuit Court on February 8, 1980, carrying a possible term of imprisonment for two to twenty years, is a felony.

In order to determine whether appellant’s conviction in federal court was correctly used to enhance his punishment we must decide whether “the conduct made the basis of that conviction constitutes a felony under ... § 13A-l-2(4) ... or would have constituted a felony under that section had the conduct taken place in Alabama on or after January 1, 1980.” A.R.Cr.P. 6(b)(3)(iv).

The federal judgment entry recited that on December 20, 1976, appellant entered a plea of guilty to an offense characterized by the following conduct:

“Defendant . . . aided and abetted by another, did unlawfully possess a check which had been stolen out of the United States mail, Count 1; aided and abetted by another, did unlawfully utter and publish a forged endorsement on the back of a check drawn upon the Treasury of the United States, Count 2.”

The first question to be answered in deciding whether a federal offense constitutes a felony for purposes of the Habitual Felony Offender Act is whether there is a State counterpart for the federal crime. See generally Annot., 65 A.L.R.3d 586 (1975); Annot., 19 A.L.R.2d 232 (1951). Of course, if the federal government has exclusive jurisdiction over the offense because it was committed within the special maritime or territorial jurisdiction of the United States, or because it was committed on land purchased by or ceded to the United States, there can be no prosecution for a corresponding State crime. See 18 U.S.C. § 7 (1964). See also Quinn v. State, 39 Ala.App. 107, 95 So.2d 273 (1957) (federal crimes of theft of post office property and burglary of building containing post office did not preclude State court jurisdiction over crime of burglary where post office space was merely rented by rather than ceded to, United States).

Similarly, if Congress has preempted a particular field of legislation, the overriding federal interest there prevents a State from enforcing its criminal laws on the same subject. See, e.g., City of Burbank v. Lockheed Air Terminal, 411 U.S. 624, 93 S.Ct. 1854, 36 L.Ed.2d 547 (1973) (Federal Aviation Act preempts State and local control of aircraft noise); Commonwealth v. Nelson, 350 U.S. 497, 76 S.Ct. 477, 100 L.Ed. 640 (1956) (Smith Act preempts state sedition laws aimed at overthrow of national government).

If, however, the federal government does not have exclusive jurisdiction over an offense by virtue of the territoriality or preemption principles, then a crime against the United States may also be prosecuted as an offense against a state, i.e., there is concurrent federal-state jurisdiction. See 18 U.S.C. § 3231 (1970).

The first count contained in the judgment entry of appellant’s federal conviction is apparently based upon 18 U.S.C. § 1708 (1970), which provides, in pertinent part, the following:

“Whoever steals, . . . from or out of any mail,, post office, or station thereof, letter box, mail receptacle, or any mail route or other authorized depository for mail matter ... or
“Whoever buys, receives, or conceals or unlawfully has in his possession, any letter, ... which has been so stolen, ... as herein described, knowing the same to have been stolen. . .
“Shall be fined not more than $2000 or imprisoned not more than five years, or both.”

Although Alabama has no criminal statute analogous to § 1708, supra, proscribing theft of mail or possession of stolen mail, this State does proscribe the receiving, retaining or disposing of stolen property. See Ala.Code § 13A-8-16 (1975). In our judgment, however, Alabama would not have had jurisdiction to prosecute appellant for the conduct made the basis of Count 1 of his federal conviction since, based on an early federal case, the United States Courts appear to have exclusive jurisdiction of crimes relating to mail theft. See United States v. Eddy, 25 F.Cas. 975 (C.C.N.D.Ill. 1858) (No. 15,024).

In Eddy, the defendant was a jailer prosecuted under the predecessor to § 1708, supra, for retrieving from the post office, and reading, a letter written by a prisoner. The court stated the following:

“When [a letter] is placed within the legal custody of the officers or agents of the department, and while it continues there, the laws of the United States operate on it, and not the laws of the State. In what has been said, the court refers of course to letters while in such custody and on deposit, or in transit to the places or persons addressed.... ” 25 F.Cas. at 975-76. See also United States v. McCready, 11 F. 225 (C.C.W.D.Tenn. 1882).

We also conclude that Alabama may be precluded from prosecuting offenses involving mail theft by virtue of the preemption doctrine. The range of offenses involving the United States mails clearly demonstrates Congressional concern in this area. See, e.g., 18 U.S.C. § 1698 (prompt delivery of mail from vessel); § 1700 (desertion of mails); § 1702 (obstruction of correspondence); § 1706 (injury to mail bags); § 1707 (theft of post office property); § 1716 (injurious articles nonmailable); and § 1728 (weight of mail increased fraudulently).

We therefore hold that the conduct made the basis of Count 1 of appellant’s federal conviction would not have constituted a felony in Alabama according to A.R. Cr.P. 6(b)(3)(iv). Thus, had appellant’s conviction rested on Count I alone, the State of Alabama would have been precluded from using it to enhance his punishment.

Count 2 of appellant’s judgment of conviction, however, is not directly related to mail theft and is not subject to the exclusive jurisdiction of the federal courts. Although the uttered check described in Count 2 is undoubtedly the same check referred to in Count 1 as stolen from the United States mail, Count 2 is based on the separate offense outlined in 18 U.S.C. § 495 (1976). That section provides, in pertinent part, the following:

“Whoever falsely makes, alters, forges, or counterfeits any deed, power of attorney, order, certificate, receipt, contract, or other writing, for the purpose of obtaining or receiving, or of enabling any other person, either directly or indirectly, to obtain or receive from the United States or any officers or agents thereof, any sum of money; or
Whoever utters or publishes as true any such false, forged, altered, or counterfeited writing, with intent to defraud the United States, knowing the same to be false, altered, forged, or counterfeited; . . . shall be fined not more than $1,000 or imprisoned not more than ten years or both. [Emphasis added]

The conduct described in Count 2 and proscribed by § 495, supra, is equivalent, under Alabama law, to criminal possession of a forged instrument in the second degree, which is a Class C. felony. See Ala. Code § 13A-9-6 (1975). Section 13A-9-6, supra, provides the following:

“A person commits the crime of criminal possession of a forged instrument in the second degree if he possesses or utters any forged instrument of a kind specified in section 13A-9-3 with knowledge that it is forged and with intent to defraud.”

Section 13A-9-3 specifies the following instruments:

“(1) A deed, will, codicil, contract, assignment or a check, draft, note or other commercial instrument which does or may evidence, create, transfer, terminate or otherwise affect a legal right, interest, obligation or status; or
“(2) A public record, or an instrument filed or required or authorized by law to be filed in a public office or with a public employee; or
“(3) A written instrument officially issued or created by a public office, public employee or government agency.”

In our judgment, the check described in Count 2 of appellant’s federal conviction falls within either subsection (1) or subsection (3) of § 13A-9-3, supra, as respectively, a “check,” or a “written instrument officially issued ... by a ... government agency.” See Ala.Code § 13A-8-l(5) (1975) (The United States is a “government agency”).

Furthermore, the intent and scienter requirements for convictions under either the federal or State statute are identical. The federal offense specifies an “intent to defraud the United States” and “knowing [the writing] to be false.” 18 U.S.C. § 495, supra. See also United States v. Eddy, 597 F.2d 430 (5th Cir. 1979). The Alabama statute requires “knowledge that [the instrument] is forged and with intent to defraud.” Ala.Code § 13A-9-6, supra.

Therefore, Count 2 of appellant’s conviction in the United States District Court for the Northern District of Alabama furnishes the basis for his enhanced punishment pursuant to § 13A-5-9(b)(3), Code of Alabama 1975.

There is no error in the record. The judgment and conviction of the Jefferson Circuit Court is hereby affirmed.

AFFIRMED.

All the Judges concur.


source: Caselaw Access Project

author: BOWEN, Judge.

license: Public Domain

text:
    Steven Randall HARMON v. STATE.
    6 Div. 731.
    Court of Criminal Appeals of Alabama.
    June 29, 1982.
    Rehearing Denied July 27, 1982.
    Certiorari Denied, Oct. 22, 1982 Alabama Supreme Court 81-954.

      Carol J. Millican, Birmingham, for appellant.
    Charles A. Graddick, Atty. Gen. and Elizabeth Ann Evans, Asst. Atty. Gen., for the State.
   BOWEN, Judge.

The defendant was indicted and convicted for unlawfully obtaining or attempting to obtain Demerol “by the use of a forged prescription.” Alabama Code 1975, Section 20-2-1 et seq. The defendant was sentenced as a second offender to 25 years’ imprisonment. Section 20-2-76(a).

I

The defendant argues that the State failed to establish that Demerol is a controlled substance. The only objection at trial was in the defendant’s motion to exclude the State’s evidence when defense counsel stated:

“Your Honor, the Defendant would make a motion to exclude State’s evidence in that they have failed to prove a prima facie case. They have not proved that the controlled substance Demerol was in fact a controlled substance. That’s all.”

At trial, Dr. J. B. Clayton testified that “Demerol is a Class 2 narcotic.” During Dr. Powell’s testimony, the following occurred without objection.

“Q. And you say that’s in schedule 2?
“A. I think so. I’m not sure.
“Q. Here’s a Schedule 2 listing of controlled substances. Would you point to that in there?
“A. I see you’ve got all the generics there. I don’t know what you asked me to do.
“THE COURT: He wants to know if you see it under Schedule 2. Look at 3 and so on.
“Q. Yes, sir, examine all the schedules.
“A. My book doesn’t go like this. This is a listing of controlled substances over here. You’ve got amphetamines. I’m not getting anywhere with this.
“THE COURT: No wonder he can’t find it, it’s not in there.
“MR. MAHON (Assistant District Attorney): I’ll have that marked.
“THE WITNESS: What is this?
“MR. MAHON: For the purpose of the record, I have just handed to the Court and the Court has handed to the witness a copy of the published scheduled controlled substances here in the State of Alabama, which also includes Schedule 2.
“THE COURT: If you can read that you can locate that generic term for Demerol on there. It’s in the center column.
“THE WITNESS: Merperidine Hydrochloride. He refreshed my memory with that.”

Pharmacist Debra Powell stated that Demerol or merperidine is “a schedule 2 narcotic.” She further testified that “(t)hey are all scheduled by the Federal Government, regulated by the Federal Government. They schedule it Schedule 2.”

On appeal, the defendant argues that the State “failed to establish a prima facie case by failing to produce evidence that the statutory procedure had been followed in adding ‘Demerol’ to the list of controlled substances.” Compare McCurley v. State, 390 So.2d 25 (Ala.1980); Brown v. State, 398 So.2d 784 (Ala.Cr.App.), cert. denied, 398 So.2d 787 (Ala.1981). This argument is made for the first time on appeal. The general objection at trial is insufficient to preserve this specific question for review. See Kilgore v. State, 50 Ala.App. 501, 280 So.2d 206 (1973). “A motion to exclude without stating any grounds therefor is properly overruled.” Ward v. State, 376 So.2d 1112, 1116 (Ala.Cr.App.), cert. denied, Ex parte Ward, 376 So.2d 1117 (Ala.1979).

The State did prove, in a somewhat haphazard manner, that Demerol or Mer-peridine Hydrochloride was in “the published scheduled controlled substances here in the State of Alabama, which also includes Schedule 2.” The defendant’s general motion to exclude because the State had not proven that Demerol was a controlled substance was properly overruled. If defense counsel had some objection to the manner in which such proof was made or that the proof was not the best evidence, specific objection should have been advanced to the trial judge on those grounds.

In the absence of a proper objection raising the specific issue, the State, in a prosecution involving a controlled substance, need not prove that the statutory procedure was followed in adding the drug to the list of controlled substances. “The trial court can properly take judicial notice of whether a substance is designated as a controlled substance and can so instruct the jury.” Gilbert v. State, 401 So.2d 342, 343 (Ala.Cr.App.1981). “Identification of a controlled substance by a State toxicologist is, of course, sufficient to constitute a prima facie case.” Bickerstaff v. State, 369 So.2d 315, 316 (Ala.Cr.App.1979). See also Hare v. State, 390 So.2d 1126 (Ala.Cr.App.), cert. denied, Ex parte Hare, 390 So.2d 1129 (Ala.1980).

II

The State proved that the prescription was forged through the testimony of Dr. Clayton. He stated that he never prescribed Demerol for the defendant, and that the signature on the prescription was neither his nor that of any of his nurses. Again, this argument is advanced for the first time on appeal. Because no objection on this issue was made in the trial court, the objection that the State failed to establish that the defendant was not authorized to sign the prescription (see Finney v. State, 348 So.2d 876 (Ala.Cr.App.), cert. denied, Ex Parte State of Alabama ex rel. Attorney General, 348 So.2d 878 (Ala.1977)) is of no avail.

III

The record affirmatively shows that the defendant was represented by counsel at his two previous drug convictions. The defendant was not sentenced as an habitual offender and the four other felony convictions were only for “the court’s information.” We do not find that they were used to enhance punishment.

IV

The defendant was properly sentenced under Section 20-2-76(a) authorizing imprisonment for up to 30 years upon a second or subsequent violation of the Alabama Controlled Substances Act. The record shows that in 1980 the defendant was convicted on a two count indictment charging the unlawful possession of marijuana and chlordiazepoxide.

The judgment of the circuit court is affirmed.

AFFIRMED.

All Judges concur.


author: PER CURIAM.

text:
    THE FLORIDA BAR, Complainant, v. Hugh SAWYER, Respondent.
    No. 59080.
    Supreme Court of Florida.
    June 17, 1982.
    Rehearing Denied Oct. 29, 1982.
    John A. Boggs, Bar Counsel, Tampa, for complainant.
    Donald William Griffin, St. Petersburg, for respondent.
   PER CURIAM.

This disciplinary proceeding against Hugh Sawyer, a member of The Florida Bar, is before us on complaint of The Florida Bar and report of the referee. No petition for review has been filed.

The referee made the following findings as to the four counts in the complaint:

As to Count I
That in May of 1979, when Gulf American Corporation was involved in bankruptcy proceedings in Federal Court in Miami, Florida, respondent drafted for his client, Thomas L. Walker, and mailed approximately 30,000 copies of a letter dated May 18,1979, to most of the record property owners in Golden Gates Estates, a Florida real estate development. The targets of the 30,000 copies of this letter were potential claimants or creditors of Gulf American Corporation (GAC).
The May 18, 1979, letter failed to disclose respondent as the true author of the letter and further the May 18, 1979, letter solicits the employment of respondent to represent the potential creditors of GAC who are record property owners in Golden Gates Estates. None of the targets of the 30,000 copies of the May 18, 1979, letter had previously sought legal services or advice in the GAC matter. Respondent accepted employment by approximately 2,000 property owners having potential claims against GAC.
I further find that respondent’s letter of May 18, 1979, failed to disclose an option available to Golden Gates Estates lot owners worked out between GAC and the Federal Trade Commission. This option was an alternative to respondent’s suggested course of action.
As to Count II
That on August 2, 1979, respondent caused to be mailed about 30,000 copies of a letter of that date directed to “all property owners in Golden Gates Estates, Collier County, Florida.” At that time, less than 3,000 property owners in Golden Gates Estates had previously retained respondent’s legal services.
As a result of this letter dated August 2, 1979, respondent accepted legal employment for about 2,100 additional property owners in Golden Gates Estates.
As to Count III
That upon inquiry by the judge presiding over the bankruptcy proceedings, the respondent agreed on August 10, 1979, to hold all money he had received from property owners in Golden Gates Estates in trust and advised the funds were already in escrow.
The funds respondent received from the property owners in Golden Gates Estates were not, on August 10, 1979, being held in a trust account and were not placed in a trust account until October 10, 1979, after the commencement of disciplinary proceedings against respondent.
As to Count IV
That respondent failed to seek and receive permission from his clients, the approximately 3,000 who replied to respondent’s May 18, 1979, letter, prior to the mailing of his August 2, 1979, letter and acceptance of employment by an additional 2,100 property owners in Golden Gates Estates. That as a result of GAC’s limited assets the addition of another 2,100 or so claimants substantially reduced the potential recovery for each of respondent’s clients.

The referee recommends that Sawyer be found guilty of each count in the complaint and that he be suspended from the practice of law for eighteen months and thereafter until he proves rehabilitation.

We approve the findings and recommendations of the referee. Hugh Sawyer is hereby suspended from The Florida Bar for eighteen months, effective July 19, 1982, giving him thirty days to close out his practice and to take the appropriate steps to protect his clients. Costs in the amount of $1,018.96 are assessed against Sawyer.

It is so ordered.

ADKINS, A. C. J., and BOYD, ALDERMAN, MCDONALD and EHRLICH, JJ., concur.


author: ADKINS, Justice.

text:
    STATE of Florida, Petitioner, v. William M. RICKARD, Respondent.
    No. 54877.
    Supreme Court of Florida.
    Sept. 30, 1982.

      Jim Smith, Atty. Gen. and Charles Core-es, Jr., Asst. Atty. Gen., Tampa, for petitioner.
    Jerry Hill, Public Defender, James R. Wulchak, P. Douglas Brinkmeyer and David A. Davis, Asst. Public Defenders, Tenth Judicial Circuit, Bartow, for respondent.
   ADKINS, Justice.

This cause is here on petition for writ of certiorari supported by certificate of the Second District Court of Appeal that its decision reported as Rickard v. State, 361 So.2d 822 (Fla. 2d DCA 1978), is one which involves a question of great public interest. Art. V, § 3(b)(3), Fla.Const. (1972).

The respondent, defendant at the trial court, William R. Rickard, was arrested after his neighbor, Martin, informed Detective Fitzgerald that he had observed some plants, which he believed to be marijuana, growing in the defendant’s backyard. The plants could not be seen from Martin’s yard, because defendant had erected a plywood partition next to a storage shed, thereby obstructing the view of his yard on Martin’s side. There was also a chain link fence surrounding defendant’s yard, but it did not block the view.

Martin took Detective Fitzgerald to a citrus grove behind defendant’s yard. About fifty feet away, the detective observed some plants in defendant’s yard which, from his experience, he believed to be marijuana. Since defendant was not home, he decided to return the next day to arrest defendant and seize the plants.

The next day, without obtaining a warrant, Detective Fitzgerald returned to the grove with Detective William Page and watched the yard for approximately one hour, hoping to observe defendant in the act of caring for the plants. When defendant did not appear, the two detectives went to his mobile home and arrested him. Defendant asked the detectives if he could get some money from his trousers which were lying on the floor. As defendant reached into the pocket, Detective Page, fearing a concealed weapon, put his hand into the pocket and pulled out a small baggie of marijuana. The detectives then seized the marijuana in defendant’s backyard.

Defendant was charged with manufacturing marijuana and felony possession of marijuana. A motion to suppress was denied by the trial court, and defendant pled nolo contendere, reserving his right to appeal the denial of his motion. On appeal, the Second District Court of Appeal upheld the trial court’s denial of defendant’s motion to suppress the marijuana seized from the trousers pocket as being incident to lawful arrest. However, the court reversed the denial of the motion to suppress the marijuana plants seized from defendant’s backyard, citing as its authority Morsman v. State, 360 So.2d 137 (Fla. 2d DCA 1978), cert. disch., 394 So.2d 408 (Fla.1981). The district court certified the following question to this Court:

Where contraband is seen in plain view by police in the defendant’s back yard from a point adjacent to the property, may the police seize the contraband without a warrant in the absence of exigent circumstances?

361 So.2d at 825. We answer the question in the negative.

Arguments in this case have shown a marked confusion between plain view per se and the “plain view doctrine” as espoused in Coolidge v. New Hampshire, 403 U.S. 443, 91 S.Ct. 2022, 29 L.Ed.2d 564 (1971). Confusion was dispelled in Ensor v. State, 403 So.2d 349, 352 (Fla.1981), when we said:

The term “plain view” has been misunderstood and misapplied because courts have made it applicable to three distinct factual situations. This has resulted in confusion of the elements of the “plain view doctrine.” To eliminate this confusion, we believe it appropriate to distinguish the true “plain view doctrine” as established in Coolidge v. New Hamp shire, 403 U.S. 443, 91 S.Ct. 2022, 29 L.Ed.2d 564 (1971), from other situations where officers observe contraband.
The first factual situation we identify as a “prior valid intrusion.” In this situation, an officer is legally inside, by warrant or warrant exception, a constitutionally protected area and inadvertently observes contraband also in the protected area. It is this situation for which the United States Supreme Court created the “plain view doctrine” in Coolidge and held that an officer could constitutionally seize the contraband in “plain view” from within this protected area. We emphasize that it is critical under this doctrine for the officer to be already within the constitutionally protected area when he inadvertently discovers the contraband.
We identify the second factual situation as a “non-intrusion.” This situation occurs when both the officer and the contraband are in a non-constitutionally protected area. Because no protected area is involved, the resulting seizure has no fourth amendment ramifications, and, while the contraband could be defined as in “plain view,” it should not be so labeled to prevent any confusion with the Coolidge “plain view doctrine.”
The third situation concerns a “pre-in-trusion.” Here, the officer is located outside of a constitutionally protected area and is looking inside that area. If the officer observes contraband in this situation, it only furnishes him probable cause to seize the item. He must either obtain a warrant or have some exception to the warrant requirement before he may enter the protected area and seize the contraband. As with the non-intrusion situation, the term “plain view” should not be employed here to prevent confusion. For clarity, we label an observation in the latter two non -Coolidge situations as a legally permissive “open view.”

Here the officer was located outside of a constitutionally protected area and looking inside that area. The officer did not obtain a warrant nor did he have any exception to the warrant requirement. The seizure without a warrant was improper and the motion to suppress the plants in the backyard should be granted.

This case is distinguishable from Mors-man v. State because an illegal search preceded the seizure in Morsman, whereas here there was no prior search. In Morsman, police found marijuana only after illegally entering Morsman’s backyard. There was no evidence that the contraband was visible from outside the backyard, so the warrant-less search and seizure were illegal. We are now presented a different situation. Police were in an orange grove where they had a legal right to be when they observed marijuana growing in respondent’s backyard. The plants were open to view only fifty feet away; therefore, no search occurred.

Lightfoot v. State, 356 So.2d 331 (Fla. 4th DCA), cert. denied, 361 So.2d 833 (1978), is pertinent because of certain factual similarities. There, also, the marijuana was open to the view of police officers who were where they had a legal right to be. In Lightfoot and the current case, marijuana was growing in a backyard surrounded by a chain link fence which did not obstruct visibility. Police officers in both cases were answering neighborhood complaints, and neighbors directed them to unobstructed views of marijuana plants. The vantage point in Lightfoot was a neighbor’s yard; in this case it was the orange grove behind defendant’s mobile home.

The court in Lightfoot held that the defendant showed no expectation of privacy because he took no steps to conceal the marijuana plants from people who could see into the backyard. In the present case, defendant blocked the view of his next door neighbor with a shed and a plywood partition. It appears from the record that this was his only adjacent neighbor. However, the backyard and marijuana plants were completely open to view from the privately owned orange grove behind the yard. Since the owners were “up north,” people may not have been in the grove often, but the police had been asked to keep an eye on the grove-for trespassers. Therefore, defendant’s backyard was open to view by police, possibly grove workers, and meandering neighbors.

In Norman v. State, 379 So.2d 643 (Fla. 1980), this Court agreed that privacy should be recognized in areas where a person has exhibited an actual expectation of privacy, if society recognizes that expectation as reasonable. Privacy expectations may be bolstered by a cognizable property right in an invaded area. Norman quoted the United States Supreme Court in Rakas v. Illinois, 439 U.S. 128, 99 S.Ct. 421, 58 L.Ed.2d 387 (1978), that “one who owns or lawfully possesses or controls property will in all likelihood have a legitimate expectation of privacy by virtue of this right to exclude.” 439 U.S. at 143, n. 12, 99 S.Ct. at 430 n. 12. The defendant in the present case exhibited an actual expectation of privacy by putting the marijuana behind a shed and erecting a plywood partition to obstruct the neighbor’s view. The question becomes whether society sees the backyard as harboring a reasonable expectation of privacy.

In Huffer v. State, 344 So.2d 1332 (Fla. 2d DCA 1977), marijuana plants were illegally seized from a backyard hothouse. The plants were enclosed and not plainly visible to the public. Police observed the plants only after significant encroachment upon residential premises to look through a tear in plastic draped over the hothouse. The Court held that since the protection afforded to “houses” by the Fourth Amendment and by the Declaration of Rights of the Florida Constitution includes the curti-lage surrounding a dwelling, the search of the backyard hothouse intruded upon Huf-fer’s right to privacy.

The case before us falls between Light-foot (no expectation of privacy shown) and Huffer (great expectation of privacy shown). The privacy of a Florida backyard is generally protected by law, even the backyard of an apartment complex surrounded only by a chain link fence. One may not enter that area to observe occupants inside the residence. Fixel v. Wainwright, 492 F.2d 480 (5th Cir. 1974); accord, Olivera v. State, 315 So.2d 487 (Fla. 2d DCA 1975), cert. denied, 330 So.2d 21 (Fla.1976).

Under the analysis of Katz v. United States, 389 U.S. 347, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967), there can be no question but that Rickard demonstrated an expectation of privacy in carrying on these activities in his backyard, which was not only secluded from view by virtue of lack of proximity of neighbors and others, but by his erection of a chain link fence and partition. That society is willing to honor this objectively manifested expectation of privacy was acknowledged by this Court in Morsman, 394 So.2d at 409. See also Rakas v. Illinois, 439 U.S. 128, 99 S.Ct. 421, 58 L.Ed.2d 387 (1978) (property rights reflect society’s recognition of privacy rights); Fixel v. Wainwright, 492 F.2d 480 (5th Cir. 1974) (fourth amendment protects backyard of apartment). Even when the initial observation of the officer did not rise to the level of a search, as is probably the case here, courts will not allow an ensuing war-rantless search or seizure in a constitutionally protected area such as one’s backyard. See State v. Texeira, 62 Haw. 44, 609 P.2d 131 (1980). Since the defendant in the present case exhibited an actual expectation of privacy and since no showing of exigent circumstances was made, under the facts of this case we answer the certified question in the negative.

We must determine the legality of the arrest of defendant in his home without a warrant. The controlling authority on this issue at the time of his arrest was State v. Perez, 277 So.2d 778 (Fla.), cert. denied, 414 U.S. 1064, 94 S.Ct. 570, 38 L.Ed.2d 468 (1973), and United States v. Williams, 573 F.2d 348 (5th Cir. 1978). These authorities indicated that no warrant was necessary to arrest one in his home.

In Payton v. New York, 445 U.S. 573, 100 S.Ct. 1371, 63 L.Ed.2d 639 (1980), the Court held that any arrest made of a person in his home without a warrant and without the existence of exigent circumstances would be unreasonable and, as such, unconstitutional. Payton should be applied retroactively so as to void the arrest, making the evidence obtained pursuant thereto inadmissible at defendant’s trial. United States v. Johnson, - U.S. -, 102 S.Ct. 2579, 73 L.Ed.2d 202 (1982).

Summarizing, we hold that backyards may reasonably harbor privacy expectations as exhibited by a person’s actual demonstration of such expectations. Where, as here, the observation is made without any intrusion into a protected area, the fourth amendment does apply.

We answer the certified question as follows:

Where contraband is seen in plain view by police in the defendant’s backyard from a point adjacent to the property and the defendant has exhibited an actual expectation of privacy, the police may not seize the contraband without a warrant in the absence of exigent circumstances.

The seizure of the baggie of marijuana in the home of defendant should not be upheld, because it was not incident to a lawful arrest.

The decision of the district court of appeal requiring suppression of the plants is approved. The decision affirming the denial of the motion to suppress the baggie is quashed. This cause is remanded to the district court of appeal with instructions to reverse the order of the trial judge denying the motion to suppress.

It is so ordered.

ALDERMAN, C. J., and BOYD, OVER-TON and McDONALD, JJ., concur.


author: SCHEB, Judge.

text:
    PINELLAS COUNTY, Florida, Appellant, v. Peter BROWN and J. Warren Hughes, Appellees.
    No. 81-1463.
    District Court of Appeal of Florida, Second District.
    July 7, 1982.
    As Clarified on Denial of Rehearing Oct. 15, 1982.
    Charles L. Siemon and Wendy U. Larsen of Ross, Hardies, O’Keefe, Babcock & Parsons, Chicago, III, W. Gray Dunlap, County Atty., and Helen K. Hobbs, Asst. County Atty., Clearwater, for appellant.
    James A. Martin, Jr., of McMullen, Everett, Logan, Marquardt & Cline, Clearwater, for appellees.
   SCHEB, Judge.

Appellant, Pinellas County, challenges a judgment for damages awarded against it because it withheld issuing a building permit to appellee landowners. We reverse.

On May 10, 1979, appellees Brown and Hughes applied to the county for a permit to erect a manufacturing plant for their yacht business. When appellees purchased their land in 1978, it was zoned M-l, an industrial classification which permitted their proposed use. Although there had been no change in the zoning, the county denied the permit because its comprehensive land use plan, adopted in 1974, did not sanction manufacturing uses on appellees property. The county’s policy in this situation was to withhold the permit until the conflict was resolved.

Appellees were informed of the policy and proceeded to petition the- county to amend its plan to allow their request. On July 24, 1979, the county denied the request and directed its staff to initiate rezoning of appellees’ parcel to C-3. This is a commercial zoning category in harmony with the land use plan but it would not permit appel-lees’ proposed use.

Appellees sued the county seeking injunc-tive relief and damages. During the litigation on November 15, 1979, the county attorney represented to the court that the county had determined to revise the land use plan to accommodate appellees’ request and that the permit would be issued. That point was then moot so the litigation proceeded only on the count seeking damages which appellees claimed on the basis of the county’s initial denial and its attendant delay in approving their application for a permit. Before the appellees were assured of receiving their building permit, they purchased another suitable parcel and erected their plant thereon. The county’s acts finally became official on February 20, 1980, when the Pinellas County Planning Council amended the countywide plan to reflect the change to an industrial classification of ap-pellees’ property.

In a nonjury trial the court awarded ap-pellees $116,077.15. The county’s motion for rehearing was denied and this appeal ensued. The court made no specific findings of fact or conclusions of law as to the basis of its award. However, both parties argue this appeal in light of whether there has been a taking by the county compensa-ble under the theory of inverse condemnation.

Did the county’s denial in issuing a building permit for a use permitted by its zoning ordinance while it resolved the conflict between its ordinance and comprehensive land use plan constitute a taking, thereby rendering the county liable to the appellees for damages? We think not.

At the outset, we recognize that the basic rights arising from ownership of property must always be balanced against the government’s power to protect and regulate in the interest of public health, safety, morals, and general welfare. Thus, the zoning of land and the attendant administration of zoning ordinarily gives no rise to any claim for compensation by owners against the zoning authority.

Appellees, however, seek to sustain their judgment for damages on the ground that the county’s action precluded them from using their property for one of the uses permitted under the applicable zoning ordinance. The county’s action, appellees say, was equivalent to the county condemning their property under its power of eminent domain.

Eminent domain is the exercise of the government’s power to take private property for public purposes. This sovereign power is limited by our constitution, which states that any taking of private property for a public purpose must be with full compensation to the owner. Art. X, § 6, Fla. Const. (1968). Ordinarily, a public body seeking to take private land for the public good will exercise its power to condemn through formal proceedings. On the other hand, if a public body takes private property without initiating formal proceedings, the injured property owner may bring an action in inverse condemnation. City of Jacksonville v. Schumann, 167 So.2d 95 (Fla. 1st DCA 1964), cert. denied, 172 So.2d 597 (Fla.1965). Of course, the action will not lie unless there has been a taking, and the question of what constitutes a taking is a matter for judicial determination depending upon the facts and circumstances of each case. See State Department of Health & Rehabilitative Services v. Scott, 418 So.2d 1032 (Fla. 2d DCA 1982).

There is no settled formula for determining when the valid exercise of police power stops and an impermissible encroachment on private property rights begins. Graham v. Estuary Properties, Inc., 399 So.2d 1374 (Fla.1981). However, the most common cases of inverse condemnation involve an actual physical invasion and in these instances the courts more readily find a taking to have occurred. See 21 Fla.Jur.2d Eminent Domain 65 (1980). Nevertheless, there are instances where overly restrictive regulations and actions can result in a taking. See Askew v. Gables-by-the-Sea, Inc., 333 So.2d 56 (Fla. 1st DCA 1976), cert. denied, 345 So.2d 420 (Fla.1977).

In order to establish a taking, appel-lees must show that the county’s actions have substantially deprived them of all beneficial uses of the property, as compared with merely impairing its use. State Department of Transportation v. Donahoo, 412 So.2d 400 (Fla. 1st DCA 1982); Village of Tequesta v. Jupiter Inlet Corp., 371 So.2d 663 (Fla.), cert. denied, 444 U.S. 965, 100 S.Ct. 453, 62 L.Ed.2d 377 (1979).

Assuming that appellees were entitled to a permit since existing zoning allowed it, and further assuming that the conflict between the ordinance and the comprehensive plan did not constitute a pending change as contemplated by Smith v. City of Clearwater, 383 So.2d 681 (Fla. 2d DCA 1980), cert. dismissed, 403 So.2d 407 (Fla.1981), we do not think that the county’s denial constituted a taking of appellees’ land. First, appellees were not completely deprived of all beneficial uses of their property; they were only deprived of their particular requested use. Appellees did not seek to use their property for commercial uses which presumably would have been approved. Second, appellees were only deprived temporarily as the county stipulated that it would issue the permit even before a judicial determination was reached.

We therefore hold that irrespective of whether appellees were entitled to a permit, the county’s original denial and attendant delay in approving their application did not rise to the level of a taking.

Accordingly, we vacate the judgment against the county and remand for appropriate proceedings.

OTT, C.J., and SCHOONOVER, J., concur.


text:
    ESTATE OF Henry Lee MILLS, the Home Indemnity Company, Stevenson Insurance Associates, Inc., Florida Insurance Guaranty Association, Appellants, v. PROGRESSIVE AMERICAN INSURANCE COMPANY, Appellee. PROGRESSIVE AMERICAN INSURANCE COMPANY, Appellants, v. ESTATE OF Henry Lee MILLS, the Home Indemnity Company, Stevenson Insurance Associates, Inc., Florida Insurance Guaranty Association, Appellees.
    District Court of Appeal of Florida, Third District.
    July 20, 1982.
    As Modified on Motion for Clarification and Rehearing Denied Oct. 26, 1982.
    Wicker, Smith, Blomqvist, Davant, Tu-tan, O’Hara & McCoy and Richard A. Sherman, Miami, for Estate of Henry Lee Mills, et al.
    McDonald & McDonald and David McDonald, Miami, Ligman, Martin, Shiley & McGee, Coral Gables, Jeanne Heyward, Miami, Walsh, Theissen & Boyd and Mark Boyd, Fort Lauderdale, Preddy, Kutner & Hardy and Stephen T. Brown, G. William Bissett, Miami, for Progressive American Ins. Co.
    Before BARKDULL, DANIEL S. PEARSON and JORGENSON, JJ.
   PER CURIAM.

These appeals follow the return of our mandate in Cook v. Mills, 374 So.2d 599 (Fla. 3d DCA 1979). The trial court granted final summary judgment in favor of Home Indemnity Company and in favor of Summit Insurance Company of New York. We conclude the trial court erred in granting the summary judgments since a fair reading of the coverage provisions of the policies in question provided coverage to H. L. Mills Construction Company, of which Mills is undisputedly a member.

In view of our conclusion that both Home and Summit are liable, we reverse the summary judgment against Progressive American Insurance Company, the umbrella carrier. Progressive is liable only if the coverage limits of Home and Summit are exceeded. That is not the case here.

This cause is remanded for further proceedings consistent with the views expressed herein.

Reversed and remanded.

The summary judgment in favor of Stevenson Insurance Association, Inc., is affirmed.

      . Summit Insurance Company of New York went into receivership and is represented in these proceedings by Florida Insurance Guaranty Association.


author: PER CURIAM. MILLS, Judge,

text:
    LOCAL MORTGAGE COMPANY OF GEORGIA; Sterling Construction Company; George Pappas & Maureen Pappas, Appellants, v. Susie POWELL, Appellee.
    Nos. XX-401, XX-479.
    District Court of Appeal of Florida, First District.
    Aug. 19, 1982.
    Rehearing Denied Oct. 26, 1982.

      E.C. Deeno Kitchen and J. Lawrence Johnston, of Ervin, Varn, Jacobs, Odom & Kitchen, and William W. Corry, Tallahassee, for appellant Local Mortg. Co.
    Bruce Culpepper, of Culpepper, Beatty & Turner, Tallahassee, for appellants Sterling Const. Co., George M. Pappas and Maureen Pappas.
    Daniel S. Dearing, of Dearing & Smith, Tallahassee, for appellee.
   PER CURIAM.

The appeal and cross appeal in this case are from a judgment for plaintiff in an action for fraud, forgery, and slander of title, entered on a jury verdict including punitive damages of $200,000.

A complaint was filed on behalf of Mrs. Powell in July 1975, and a jury trial was held on a second amended complaint in July 1980. The complaint alleged violations of the Federal Truth in Lending Act, 15 U.S.C. § 1601 et seq., the Florida Home Improvement Sales and Finance Act, § 520.60 et seq., Florida Statutes, the Florida Deceptive and Unfair Trade Practices Act, § 501.201 et seq., Florida Statutes, and § 559.72, Florida Statutes, dealing with consumer collection practices. The complaint also contained counts’ alleging fraud, libel and slander, and slander of title.

The salesmen who negotiated the sale of aluminum siding to Mrs. Powell were “independent contractors” of Sterling Construction Company, who came to Tallahassee to work for Sterling and used form contracts provided by Sterling. The trial court found, as a matter of law, that they were agents of Sterling. Sterling, along with three similar corporations, was owned by George and Maureen Pappas. George was employed by Sterling as president. He provided forms to the salesmen, reviewed the paperwork, completed the blank contract and sold the note and mortgage to Local Mortgage Company of Georgia. Maureen notarized the forged signature of Mrs. Powell on the note and mortgage. Local had a regular business of buying “home modernization mortgages,” including as many as 1,000 from Pappas through his corporations. The jury was allowed to, and did, find that Pappas or his corporation was an agent of Local. Local, now renamed Fidelcor Mortgage Company of Georgia, is owned by Fi-delcor, Inc., a Pennsylvania bank holding company with considerable assets, through its subsidiary Fidelcor Mortgage Company.

The charge conference does not appear to have been recorded. However, prior to closing arguments the court asked for objections or motions and the attorney for the Pappases and Sterling Construction Company (hereafter “Pappas”) moved for directed verdict on each of the eight counts in the complaint. As each motion was denied, the attorney objected to all jury instructions on that count. After defendant Pappas’ motions were denied and the objections to jury instructions overruled, the attorney for Local made a general motion for a directed verdict as to each count. He also moved that the court advise the jury that the court would determine whether the mortgage was valid or not, although he objected to the court assessing damages on the slander of title count. When the jury was actually charged, neither defendant objected to the instructions.. A verdict was returned finding plaintiff entitled to actual damages for violation of the Federal Truth in Lending Act, for fraud, and in a nominal amount for slander of title. In addition, the verdict assessed punitive damages against all of the defendants, although these damages were not apportioned to the counts. The verdict therefore contains special findings of liability as to each count, but a general award of punitive damages.

On appeal, one brief was filed by Local Mortgage Company and one by Pappas. Numerous points are raised by appellants. We find that the only issue requiring discussion involves the slander of title count.

When Pappas’ attorney moved for a directed verdict on the slander of title count, he argued that no evidence of damage had been put to the jury and that damage is a necessary element of an action for slander of title. When the motion was denied an objection was made “to all instructions to the jury with regard to slander of title that would link my defendants to [the slander of title count].” (e.s.) The jury charge with regard to that count was as follows:

You are further instructed that the public recording of a fraudulent mortgage has an effect known at law as slander of title. If you find that the mortgage was fraudulent and that Defendant Local Mortgage Company had it recorded in the public records of Leon County, Florida, and that the Plaintiff suffered damage as a result thereof, you are instructed that the Defendant, Local Mortgage Company, is liable to the Plaintiff, Susie Powell, for having slandered the title to her property. If you find further that the Defendant, George M. Pappas, acted as an agent for Local Mortgage Company in obtaining a mortgage, and that he knew the mortgage to be fraudulent, then you are instructed that the knowledge of George Pappas that the mortgage was fraudulent can be imputed to Local Mortgage Company.
• • • PJf y°u find that the title of the Plaintiff to real property was slandered by any of the Defendants, you can only assess nominal damages; that is, $1 or a like amount for that offense, (emphasis supplied.)

The jury found the plaintiff entitled to $1 in damages because of slander of title.

After the trial, a hearing was held on the issue of actual damages by way of attorney fees resulting from the slander of title count. Defendant Local objected to the procedure, maintaining that the issue should have been decided by the jury, and plaintiff’s counsel alluded to an agreement between the parties that the judge would decide the question. That alleged agreement was denied by defendants and is wholly unsupported by the record here.

On appeal, only Local argues that it was error for the judge to decide the amount of damage and that it was prejudiced thereby. Essentially, the argument is the same as that made by defendant Pappas in his motion for directed verdict below; i.e., proof of damage is an element of slander of title, no damage was proven to the jury, and therefore a verdict on that count would be improper. As noted above, Local’s motion for directed verdict was not specific as to this count, and we conclude that the motion by Pappas, who does not assert the error here, plainly did not cure Local’s failure to preserve this point for appellate review by specifying to the trial court the grounds for the motion as to that count. Rule 1.480(a), Fla.R.Civ.P. It is of course impossible to say to what extent a specifically stated motion by Local might have enabled the court to avoid the error in this respect. The trial judge expressly recognized his error at the hearing on post-trial motions:

THE COURT: All right. Well, I thoroughly agree with Mr. Kitchen that probably this fee was a factual matter which should have gone to the jury, as far as the slander of title is concerned. But I’m not going to get that jury back. They’ve gone. So I’m going to have — That’s just an error that — If it is an error, we’ll just have to live with it as far as that case is concerned.

We decline, accordingly, to reverse on that ground.

This brings us to the final point, which is the propriety of the amount awarded. We find that, although the finding that plaintiff did suffer damages by incurring fees is supported, the award of $37,550.00 is clearly excessive and indicates a misapprehension of both the evidence and the grounds on which such damages may be awarded. Distinctions exist between an award of attorney’s fees based on a contractual or statutory right and an award of such fees as special damage in an action to remove a cloud wrongfully cast upon a plaintiff’s title. In the first situation all expenses incurred in preparing or defending the case may be awardable. But where the only damage incurred is the cost of attorney’s fees, the damages are limited to the amount reasonably expended for the purpose of removing the cloud.

In this case the cloud on the plaintiff’s title was, of course, the fraudulently obtained mortgage against her property. That cloud was cleared by the portion of the final judgment ordering the mortgage discharged. The question to be determined, then, was the reasonable value of services necessary to bring about the discharge.

The record before us would indicate that the amount of damages awarded was based on the services required for prosecuting the case as a whole. In fact, the expert who provided the figure which was awarded testified that he based his opinion on all the hours the attorney spent on the case. Appellee maintains that it was proper to base the award on all the hours spent on the case because the facts upon which the slander of title count was based are the same facts that the other counts were based on and it is impractical, if not impossible, to attempt to separate them. This argument might have validity if directed to a statutory or contractual fee. Services in proving such collateral matters as agency would be pertinent. As previously noted, however, we are not here reviewing a fee awardable on the basis of a statutory or contractual right. We are instead concerned with an element of damages which must be based on services rendered to remove the cloud cast upon a title which formed the basis of the claim for slander of title We conclude accordingly that the award of $37,550.00 is not substantiated by the evidence before the trial court.

In view of counsel’s conceded inability to distinguish between services rendered on the slander count and those serving other purposes, there appears to be little purpose to be served by remand for application of the proper measure by the trial court in reassessment of damages incurred by way of counsel fees. In the unique circumstances of this case, including the amount of the mortgage constituting the cloud and the manner in which the dissolution of the mortgage came about, we find that the services rendered for the purpose of removing the cloud could not reasonably have exceeded $5,000.00, and conclude that we would not sustain a judgment for a greater amount based on the record before us.

In sum, we hold that the error in instructing the jury to return nominal damages on the slander of title count (and assessment of actual damage by the court) was not preserved by the general motion for directed verdict on the slander count. The award of a fee in excess of that substantiated by the record does require reversal and a new hearing before the court on that issue unless appellee accepts a remitti-tur of $32,550.00 from the award for such damages. The judgment is otherwise affirmed and the cause remanded for further proceedings consistent herewith.

WENTWORTH, J., and WILLIAM C. OWEN, Jr. (Ret.), Associate Judge, concur.

MILLS, J., concurs in part & dissents in part with opinion.

MILLS, Judge,

concurring in part and dissenting in part:

I agree with that part of the majority opinion which affirms the judgment of the trial court. I dissent from that part of the majority opinion which reverses the attorney’s fee awarded Powell’s attorney. I would affirm the $37,550.00 fee awarded the attorney.

As the majority opinion points out, the circumstances of this case are unique. I would not compound this uniqueness by attempting to set a reasonable attorney’s fee without the benefit of evidence. The trial court who was fully familiar with the complexities of this case had the benefit of all the evidence. The only testimony offered on attorney’s fees was offered by Powell. I agree with the trial court that the services rendered for the purpose of removing the cloud could not be separated from services rendered in the other actions. The evidence supports the award of $37,550.00 and no abuse of discretion by the trial court has been demonstrated.

      . Atkinson v. Fundaro, 400 So.2d 1324 (Fla. 4th DCA 1981).

      . The witness multiplied all the hours spent by the attorney, his law clerk, and an associate by a standard hourly rate reasonably charged for the services of each.

      . Atkinson v. Fundaro, supra.

      . Great American Insurance Co. v. Suarez, 107 Fla. 705, 146 So. 644 (1933).


author: BERANEK, Judge.

text:
    Clifton L. DANCE, Jr., M.D., Appellant, v. NORTH BROWARD HOSPITAL DISTRICT d/b/a Broward General Medical Center, Appellee.
    No. 81-1495.
    District Court of Appeal of Florida, Fourth District.
    Sept. 1, 1982.
    Rehearing Denied Oct. 28, 1982.
    Frank D. Newman of Sams, Gerstein & Ward, P. A., Miami, for appellant.
    Davis W. Duke, Jr., of McCune, Hiaasen, Crum, Ferris & Gardner, P. A., Fort Laud-erdale (Ellen Mills Gibbs, Fort Lauderdale, of counsel), for appellee.
   BERANEK, Judge.

Clifton L. Dance, a physician, appeals his permanent suspension from the medical staff of Broward General Medical Center, and from practicing in any of the three hospitals operated by the North Broward Hospital District. Dr. Dance was summarily suspended by the Chief of Surgery and the Hospital Administrator of the Broward General Medical Center. His suspension was made permanent after three full administrative hearings. Dr. Dance was observed replacing syringes containing subli-maze (a potent pain killer) with syringes containing a saline solution and then injecting the saline solution into patients. Dance recorded sublimaze injections on the patients’ records. No one, including the patients, was advised of these procedures. Dr. Dance admitted the syringe switching procedure and eventually gave at least two somewhat inconsistent explanations for his conduct.

After his initial temporary suspension a probable cause hearing occurred before the Medical Council, which is the executive committee of the hospital medical staff. Thereafter, a full evidentiary hearing occurred before the District Membership Committee, which is also composed of physicians. Thereafter, a further full evidentia-ry hearing occurred before the Board of Commissioners of the Hospital District, which is the governing body of the District. The Board of Commissioners is a lay board.

Appellant raises numerous points, all of which we find to be without merit. This was a proceeding whereby Dr. Dance’s privilege of practicing medicine in the particular hospitals of the District was suspended. It is not a license revocation proceeding nor is it criminal in nature. Further, the parties have agreed the case is not governed by Florida’s Administrative Procedure Act.

We conclude that there was adequate evidence upon which to base permanent suspension. The physicians composing the various administrative bodies below are clearly possessed of great medical expertise and also had the obligation of securing the quality of patient care within the hospitals of the District in accordance with the bylaws of the District. This Court will afford great deference to such expert governing bodies. Judicial intervention is only necessary or appropriate when suspension procedures are unfair or when the standards set by the hospital are unreasonable or applied arbitrarily or capriciously. There has been no such demonstration herein, and the order appealed from is affirmed. See Citta v. Delaware Valley Hospital, 313 F.Supp. 301 (E.D.Pa.1970); Laje v. R. E. Thomason General Hospital, 564 F.2d 1159 (5th Cir. 1978).

AFFIRMED.

DOWNEY and HURLEY, JJ., concur.

      . In view of this agreement we expressly refrain from any consideration of the Administrative Procedure Act and from any decision on its application herein.


author: DAUKSCH, Judge. ORFINGER, Chief Judge,

text:
    Melvin James COMBS, Petitioner, v. STATE of Florida, Respondent.
    No. 82-890.
    District Court of Appeal of Florida, Fifth District.
    Sept. 1, 1982.
    Rehearing Denied Oct. 6, 1982.
    Howard H. Babb, Jr., Public Defender, and Laura Melvin, Asst. Public Defender, Ocala, for petitioner.
    No appearance for respondent.
   ON PETITION FOR WRIT OF CERTIORARI

DAUKSCH, Judge.

In this Petition for Writ of Certiorari we are solicited to review an alleged error made by the circuit court sitting in its appellate review capacity. The circuit judge sat in review of a county court judgment of conviction in a Driving While Intoxicated case. We are petitioned to review the county court judgment and the decision of the circuit court concerning a question of law regarding the use of statements made to an officer investigating an automobile accident; which statements were used later against the defendant in his criminal trial. See State v. Coffey, 212 So.2d 632 (Fla.1968) and Goodis v. Finkelstein, 174 So.2d 600 (Fla. 3d DCA 1965) and the various cases which discuss the statute regarding admissibility of such statements.

Whether or not the county court and the circuit court were in error in their determinations regarding the admissibility of these statements is not for us to decide. Certiorari is not the vehicle for us to review alleged errors of law made by a circuit judge sitting in review of county court judgments. There is no vehicle for that review. The decision of the circuit court is final and not reviewable. City of Winter Park v. Jones, 392 So.2d 568 (Fla. 5th DCA 1981); Magnus v. Century Village, Inc., 379 So.2d 145 (Fla. 4th DCA 1980); Griffin v. State, 367 So.2d 736 (Fla. 4th DCA 1979); Grandin Lake Shores Association, Inc. v. Underwood, 351 So.2d 1131 (Fla. 1st DCA 1977).

In City of Winter Park v. Jones, 392 So.2d 568 (Fla. 5th DCA 1980), this court held:

An error must be so flagrant and of such magnitude that a party has been effectively denied his day in court before our certiorari jurisdiction will be invoked. Even though a nonfundamental error should cause reversal in the circuit court it will not prompt our certiorari jurisdiction. (Citations omitted). Thus, the departure from the essential requirements of law necessary to invoke the jurisdiction of this Court must be of such a fundamental nature that it rises to the level of a denial of due process or so fatally infects the proceedings that the judgment cannot answer constitutional muster. This requires a case by case analysis.

At 571.

The only thing we can take by cer-tiorari in this type of case is an alleged “departure from the essential requirements of law” which essentially amounts to violations of due process rights; that is, violations which effectively deny appellate review such as the circuit judge rendering a decision without allowing briefs to be filed and considered, a circuit judge making a decision without a record to support the decision, Lee v. State, 374 So.2d 1094 (Fla. 4th DCA 1979), or the circuit court dismissing an appeal improperly. Lynch v. State, 409 So.2d 133 (Fla. 5th DCA 1982). The Court of Appeal is not here to provide a second appeal from county court decisions. If we were, why would we need the circuit court as the intermediary? The error as alleged by the petition is noted, but the certiorari is necessarily

DENIED.

COBB, J., concurs.

ORFINGER, C. J., concurs specially with opinion.

ORFINGER, Chief Judge,

concurring:

I agree that the writ of certiorari should not issue in this case, because there is no showing that the circuit court in its appellate capacity departed from the essential requirements of law, but I do not agree that the scope of certiorari is as limited as the majority opinion would make it.

Certiorari is a discretionary writ. As this court said in State v. Wagner, 403 So.2d 1349 (Fla. 5th DCA 1981):

If the writ is discretionary,. judges are bound to come to different conclusions on when there has been a “complete failure to observe essential requirements of law” or when the lower tribunal committed “an error so fundamental in character as to fatally infect the judgment and render it void.” What constitutes a “departure from the essential requirements of law” cannot be corralled within narrow fence lines. One size does not fit all.

See also Matthews v. Metropolitan Life Insurance Company, 89 So.2d 641 (Fla.1956); Chicken ‘N’ Things v. Murray, 329 So.2d 302 (Fla.1976).

City of Winter Park v. Jones, 392 So.2d 568 (Fla. 5th DCA 1981), although nominally a Fifth District case, was decided by judges of the Fourth District because it arose during the time the Fifth District was created. It appears to me to say that even a violation of substantive due process rights does not constitute a basis for the grant of the writ of certiorari, when it says:

“If the appellate court had jurisdiction and afforded procedural due process rights to the petitioner, the writ will not issue to correct an erroneous application of the law ...”

Id. at 570.

This, in my opinion is too narrow a view. While admitting that the scope of certiorari in the district courts is the same as that previously exercised by the supreme court, (Id. at 571), City of Winter Park appears to conflict with decisions of that court, which had previously held that violations of substantive due process rights would invoke the certiorari jurisdiction of that court. In Matthews v. Metropolitan Life Insurance Company, 89 So.2d 641 (Fla.1956), in discussing the scope of its certiorari jurisdiction, the Supreme Court said:

But we have the view that the duty of a trial judge to apply to admitted facts a correct principle of law is such a fundamental and essential element of the judicial process that a litigant cannot be said to have had the “remedy, by due course of law,” guaranteed by section 4 of the Declaration of Rights of our Constitution, F.S.A., if the trial judge fails or refuses to perform that duty.

Id. at 642. Even the Fourth District has not limited the scope of its certiorari review in the narrow fashion indicated in City of Winter Park v. Jones. In Horn & Hardart, Florida, Inc., v. Dietz, 417 So.2d 1039 (Fla. 4th DCA 1982), the court granted certiorari and quashed the order of the circuit court sitting as an appellate court, because the circuit court had reversed an order of the county court which had vacated a default on the finding of excusable neglect, holding that the appellate court had substituted its judgment for that of the fact finder on the issue of excusable neglect. It seems clear that the granting of the writ was not based on a denial of procedural due process.

I agree that this court should not provide a second appeal, and that we should review the appellate decisions of the circuit courts within narrow limits, but I cannot agree that the only basis for our accepting certio-rari is a showing that petitioner’s procedural due process rights have been violated. We have not so narrowly construed those requirements before, and we should not do so now.


author: ORFINGER, Chief Judge.

text:
    John A. LOWE, III, Appellant, v. STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, Appellee.
    No. 81-1210.
    District Court of Appeal of Florida, Fifth District.
    Sept. 8, 1982.
    Rehearing Denied Oct. 14, 1982.

      Michael L. Ramos, Daytona Beach, for appellant.
    Joe G. Dykes, Jr., of Landis, Graham, French, Husfeld, Sherman & Ford, P. A., DeLand, for appellee.
   ORFINGER, Chief Judge.

Appellant Lowe appeals from a summary final judgment in favor of appellee State Farm, in a dispute arising out of Lowe’s claim for personal injury protection benefits. We affirm.

Lowe, a Florida resident, was insured by State Farm for the period May 19, 1980, to November 19, 1980. The insured vehicle was a 1972 BMW. On September 17, 1980, Lowe was involved in an accident in Ohio, while driving a 1971 Volkswagen which he had purchased five days earlier. He had not notified State Farm of the additional vehicle, nor in fact, did he notify State Farm of the accident until February 13, 1981.

State Farm contended below that Lowe was not covered while operating his Volkswagen because it was not insured under the policy. Lowe contends that it was covered and that there is no showing of prejudice to State Farm because of the lack of notice.

The policy provision which controls here says, in pertinent part:

“If there is other no-fault coverage or if you own more than one vehicle:
1. Vehicles you own.
a. If the vehicle involved in the accident is owned by you or your spouse, this coverage applies only if it is:
(1) Your car [defined elsewhere in the policy as the automobile listed on the declarations page, in this case the BMW]; or
(2) A newly acquired ear.

The policy did not list the Volkswagen as the insured vehicle, so it was excluded from coverage under the definition of “your car.” Neither could it qualify as a “newly acquired car”, because the insured never notified the insurer of the acquisition of the car during the policy period, let alone the 30-day period after acquisition required by the policy. See Pennsylvania Threshermen & Farmers Mutual Casualty Insurance Company v. Traister, 173 So.2d 153 (Fla. 2d DCA 1965).

The summary final judgment is

AFFIRMED.

DAUKSCH and SHARP, JJ., concur.

      .The policy provides that “a newly acquired car”:
      Means a car newly owned by you or your spouse if it:
      1. Replaces your car; or
      2. Is an added car and we insure all other cars owned by you and your spouse on the date of its delivery to you or your spouse; but only if you or your spouse:
      1. Tell us about it within 30 days after its delivery to you or your spouse; and
      2. If you or your spouse has more than one of our car policies, tell us which one to apply; and
      3. Pay us any added premium due.


author: PER CURIAM. HURLEY, Judge,

text:
    STATE of Florida, Appellant, v. Robert Lee JACKSON, Appellee.
    No. 80-970.
    District Court of Appeal of Florida, Fourth District.
    Sept. 8, 1982.
    Rehearing Denied Oct. 28, 1982.
    Jim Smith, Atty. Gen., Tallahassee, and Paul H. Zacks, Asst. Atty. Gen., West Palm Beach, for appellant.
    Richard L. Jorandby, Public Defender, and Tatjana Ostapoff, Asst. Public Defender, West Palm Beach, for appellee.
   PER CURIAM.

The State appeals an order dismissing an information.

On November 28, 1979, the State filed an information charging appellee with battery, false imprisonment and burglary of a dwelling. Trial on these charges was set for the week of March 17, 1980. On March 18th, the State filed a supplemental witness list and a motion to amend the burglary count to allege the commission of an assault during the course of the burglary, increasing the possible penalty on this count from fifteen years imprisonment to life imprisonment. § 810.02, Fla.Stat. (1979). On March 19th, appellee moved to prohibit the supplemental witness from testifying, alleging prejudice from the State’s delayed listing of this witness. The trial court granted appellee’s motion to prohibit testimony and denied the State’s motion to amend the information because the proposed amendment was one of substance altering both the offense and the possible penalty. The State then announced an oral nolle prose-qui.

Two weeks later, the State filed a second information charging the appellee with the same crimes as those charged in the first information and the addition of the more severe burglary charge. The trial court granted appellee’s motion to dismiss, reasoning that the State should not be permitted to use its inherent right to nolle prose-qui so as to circumvent an adverse ruling of the court. The trial court’s order went on to say:

[T]he Court has an inherent right to enforce its rulings and orders, and must do so in order to protect its authority and rulings. In that regard, while the Court could not prevent the oral nolle prosse herein, the Court dismisses the new information so as to give force and effect to its rulings and orders of March 19, 1980. . . .

The State contends that the trial court erred in dismissing the refiled information as a sanction for the State’s exercise of its nolle prosequi power to avoid an adverse ruling of the court. We agree and reverse the order of dismissal.

In doing so, we are not unsympathetic to the concern of the trial judge which led to his order; it is unquestioned that the nolle prosequi was plainly used as a device to avoid the effect of the trial court’s earlier orders. However, the transcript of the hearing which led to the order presently being appealed reflects that the State provided the trial court with none of the existing authority emanating from this court which could have prevented the erroneous dismissal.

This is not the first time the heart of the present question has arisen in this court, although in a slightly different form. In State v. Darnell, 335 So.2d 638 (Fla. 4th DCA 1976), the Eighteenth Judicial Circuit had adopted an Administrative Order, Section VIII 0. of which was entitled Nolle Prosequi. That section provided in part that such device could not be used to:

[ojverride the authority of the court or circumvent immediate trial adversities (when denied a continuance, to avoid discovery obligations... .)

Section P provided that leave of court had to be obtained before filing a new information against the same accused on the same offense or any related offense. In invalidating the Administrative Order, we held unequivocally that the State may nolle prosequi an information without the approval of the court at any time prior to the swearing in of the jury; and that the trial court’s permission need not be obtained in order to re-file an information. We most recently re-stated our earlier holding in State v. Stell, 407 So.2d 642, 643 (Fla. 4th DCA 1981).

The practical effect of the trial court’s order in the present case was to require the trial court’s permission to refile the information, although such permission was not actually sought and denied. The order just changes the legal effect from “permission” to “veto” — a meaningless transition in the exercise of judicial power from “before” to “after.” We say again what we said in Darnell; namely, that if the trial courts of Florida are going to have such power, it must originate by rule with the Supreme Court of this state, not sua sponte by the circuit court or by this court. So it was that the Supreme Court adopted Fla.R. Crim.P. 3.191(h)(2) which provides:

(h)(2) Nolle Prosequi; Effect. The intent and effect of this Rule shall not be avoided by the State by entering a nolle prosequi to a crime charged and by prosecuting a new crime grounded on the same conduct or criminal episode, or otherwise by prosecuting new and different charges based on the same conduct or criminal episode whether or not the pending charge is suspended, continued, or is the subject of entry of a nolle prosequi.

The fact remains that Darnell specifically arose out of an Administrative Order which dealt with the use of nolle prosequi in circumvention of court orders and has been published for six years without the adoption of any rule by the Supreme Court or statute by the Legislature which codifies or regulates nolle prosequi to the extent the presently appealed order effectuates.

Nolle prosequi has been in existence since the sixteenth century; and as our Supreme Court recognized by dictum in Wilson v. Renfroe, 91 So.2d 857 (Fla.1956):

There can be no doubt that under the common law the Prosecuting [sic] Attorney controlled the entry of a nolle prose-qui, up to the time that the jury is sworn to try the cause. The words “nolle prose-qui” are a Latin expression which translated literally mean “to be unwilling to prosecute”. Under the common law of England prosecution in criminal cases were controlled by the Attorney General and he alone had the exclusive discretion to decide whether prosecution should be discontinued prior to the inception of jeopardy. In the absence of statute, the common law continues to be in force in most of the states of this country. Florida has adopted no statute on the subject.

The poet, Alexander Pope, admonishes that we “Be not the first by whom the new are tried, nor yet the last to lay the old aside.” Fla.R.Jud.A. 2.130 provides the procedure for amending rules. In the absence of emergency, proposals for changes, once filed with the clerk of the Supreme Court, are referred to the appropriate committees of The Florida Bar, where they are duly debated and considered. The process is creative, orderly and effective. The trial judge’s order in this case while properly motivated was not in conformance with Fla. R.Crim.P. 3.191, as it presently reads and, accordingly, cannot stand.

GLICKSTEIN and DELL, JJ., concur.

HURLEY, J., concurs in the judgment only.

HURLEY, Judge,

concurring in the judgment only;

The trial court never questioned the state’s right to nol-pros. Rather, the court dismissed the second information in order to give force and effect to the sanctions which it had imposed in the first case because of the state’s discovery violation.

I concur in today’s reversal because the dismissal of the second information was too severe a sanction for the original discovery violation. See Patterson v. State, 419 So.2d 1120 (Fla. 4th DCA 1982); Rule 3.220(j)(1), Fla.R.Crim.P.; cf. State v. Evans, 418 So.2d 459 (Fla. 4th DCA, 1982).

      . In Stell, we recognized certain limitations upon the power to nolle prosequi, holding:
      That is not to say, however, that the state’s power to nol-pros and refile Informations is unbridled. It is in fact limited by practical considerations. First, the bar against double jeopardy would prevent the state from nol-prossing and refiling an Information after the jury has been sworn. Second, the time constraints of the speedy trial rule would, in effect, prohibit the state from abusing its power by constantly adding charges or changing the substance of charges contained in the Information. This is so because each time the state files a new Information, the defendant is entitled to be rearraigned and in most circumstances is entitled to additional time to prepare his defense. Since the need for additional time results from the state’s action, continuances are “charged” to the state. See State ex rel. Wright v. Yawn, 320 So.2d 880 (Fla. 1st DCA 1975), cert. denied, 334 So.2d 609 (Fla. 1976). Thus, the state cannot indiscriminately nol-pros and refile Informations without adverse consequences. Further, the intent and effect of the speedy trial rule cannot be avoided by the state by entering a nol-pros to a criminal charge and then filing a new Information based on the same conduct. Fla.R.Crim.P. 3.191(h)(2).
      Id. at 643.

      . Stretton & Taylor’s Case, 1 Leon 119, 74 Eng.Rep. Ill (K.B.1588). As pointed out in Wharton’s Criminal Procedure, 12 ed. sec. 518:
      Under the English common law, criminal prosecutions were instituted and conducted largely by private persons. In order to exercise a degree of control over such prosecutions, the attorney general, as representative of the crown, could, as a matter of prerogative, at any time before judgment, and without the consent of the court, enter a nolle prosequi withdrawing an indictment or information. The prosecutors in the United States came to exercise the same power even though there was not the same need for such power. In this country, the private person never played a part in criminal prosecutions; public officials alone had the power to institute and conduct such prosecutions. Nevertheless, prosecutors in some jurisdictions still possess the absolute power to enter a nolle prosequi. In most jurisdictions, however, the decision to dismiss a pending prosecution can no longer be made by the prosecutor alone; the nolle prosequi as known to the common law has been abolished. The manner in which and the limitations under which the dismissal power may be exercised vary: The prosecutor may file a dismissal of an indictment or information only with the “consent of the court”, “leave of court”, or “permission of the court”; a prosecution may be dismissed by the court on motion of the prosecutor; a prosecution may be dismissed by the court on its own motion; or a prosecution may be dismissed by the court either on its own motion or upon the application of the prosecutor. Moreover, many jurisdictions require that the reasons for the dismissal be set forth in the order.
      It should be noted that Federal Rules of Criminal Procedure 48(a) provides:
      The Attorney General or the United States attorney may by leave of court file a dismissal of an indictment, information or complaint and the prosecution shall thereupon terminate. Such a dismissal may not be filed during the trial without the consent of the defendant.


author: HURLEY, Judge.

text:
    DEPARTMENT OF REVENUE OF the STATE of Florida, Appellant, v. ARGA CO., (formerly known as Knowlton Construction Co.), Appellee.
    No. 81-637.
    District Court of Appeal of Florida, Fourth District.
    Sept. 8, 1982.
    Rehearing Denied Oct. 28, 1982.
    Jim Smith, Atty. Gen., and E. Wilson Crump, II, Asst. Atty. Gen., Tallahassee, for appellant.
    Donald A. Orlovsky of McCune, Hiaasen, Crum, Ferris & Gardner, P.A., Fort Lauder-dale, for appellee.
   HURLEY, Judge.

This appeal challenges an award of attorneys’ fees. Since the award is not supported by statute or rule, we reverse.

Arga Co. (Arga) initiated the suit below by filing a complaint for declaratory and injunctive relief. As the litigation progressed into the discovery phase, the trial court repeatedly ordered the Department of Revenue (Department) to furnish more complete and responsive answers to interrogatories. In its third order compelling discovery, the trial court imposed a $200 sanction to reimburse Arga for attorneys’ fees incurred as a result of the Department’s failure to obey the court’s orders. Furthermore, the court put the Department on notice that if it did not comply with the discovery order within sixty days, the court would strike the Department’s pleadings and enter a default judgment. The Department still did not comply. Consequently, the court struck the Department’s pleadings, entered a default and granted final judgment in favor of Arga. The final judgment reserved jurisdiction to assess court costs.

Next, Arga moved for reimbursement of its attorneys’ fees on the theory that the Department had litigated in bad faith. Arga principally relied upon the United States Supreme Court’s decision in Roadway Express, Inc. v. Piper, 447 U.S. 752, 100 S.Ct. 2455, 65 L.Ed.2d 488 (1980). The trial court concurred and, relying on Section 86.-081, Florida Statutes (1981), Rule 1.380, Fla. R.Civ.P., and Roadway Express, Inc. v. Piper, supra, awarded Arga $27,104.60 in attorneys’ fees. The Department appealed.

Section 86.081, Florida Statutes (1981), and Rule 1.380, Fla.R.Civ.P., do not support the trial court’s action. Section 86.081 merely provides that “[t]he court may award costs as are equitable.” In Harris v. Richard N. Groves Realty, Inc., 315 So.2d 528, 529 (Fla. 4th DCA 1975), we held that “this statute cannot be expanded to include attorneys’ fees.” Thus, Section 86.-081 does not provide an independent basis for the trial court’s action. Similarly, Rule 1.380(b)(2)(F), Fla.R.Civ.P., is unavailing. Although it permits a court to “require the party failing to obey the order [compelling discovery] to pay the reasonable expenses caused by the failure that may include attorney’s fees,” the court in the case at bar had fully utilized the sanctioning powers of the rule when it required the Department to pay $200 in attorneys’ fees and, thereafter, struck the Department’s pleadings.

The question then is whether the trial court’s action is sustainable under the rationale announced in Roadway Express, Inc. v. Piper, supra. There, the United States Supreme Court held that federal courts have inherent power to assess attorneys’ fees for bad faith in the conduct of litigation. Although the case was couched in terms of what sanctions may be imposed on lawyers who unreasonably extend court proceedings, it indicated that the same sanction could be imposed on a party who litigated in bad faith. To our knowledge, no Florida appellate court has addressed the question of whether Florida follows the “bad faith” exception to the general rule that a litigant cannot recover his counsel fees.

The Fifth Circuit, however, did address the question in Perkins State Bank v. Connolly, 632 F.2d 1306 (5th Cir. 1980). There, the court held:

[Florida does] not accept the federal “bad faith” exception to the American rule. To be sure, the Florida Supreme Court has recognized that a limited right to recover attorney’s fees may exist in cases of “fraud or malice”:
The right to recover attorneys’ fees as part of the costs did not exist at common law. It must be provided by statute or contract. Fraud or malice may modify the rule under circumstances.
This exception has been narrowly interpreted, and seems limited to cases where the fraud or malice is “specific, certain and conclusive.” . . . More importantly, this exception does not appear to allow attorney’s fees as an element of costs.

Id., at 1311-12 (citations omitted). We concur with the foregoing analysis.

Lastly, we note that neither party has sought to justify the award of attorneys’ fees under Section 57.105, Florida Statutes (1981). We believe that there is an appreciable distinction between the federal ‘bad faith’ exception and a complete absence of a justiciable issue of either law or fact. Accordingly, we reverse the award of attorneys’ fees and remand with instructions to enter a cost judgment consistent with this opinion.

REVERSED and REMANDED.

GLICKSTEIN and DELL, JJ., concur.