text:
    Aldwina JOHNSON, Appellant, v. The STATE of Florida, Appellee.
    No. 79-2080.
    District Court of Appeal of Florida, Third District.
    Oct. 7, 1980.
    Kogen & Kogan and Geoffrey C. Fleck, Miami, for appellant.
    Jim Smith, Atty. Gen., and Steven R. Jacob, Asst. Atty. Gen., for appellee.
    Before HUBBART, C. J., and SCHWARTZ and BASKIN, JJ.
   SCHWARTZ, Judge.

The defendant Johnson appeals from the judgment and sentence entered after a jury found her guilty of three counts of trafficking in stolen property, in violation of Section 812.019(1), Florida Statutes (1979). We reverse for a new trial on the ground that important and admissible exculpatory evidence was erroneously excluded below.

The charges against Ms. Johnson arose from her participation in the transfer-originated, she said, by a man named Smith _o the Bahamas of a number of automobiles which were found to have been stolen. An essential element of the trafficking offense is that the defendant “knows or should know [that the property] was stolen.” § 812.019(1), Fla.Stat. (1979). Whether this was indeed the case was the key, if not the only issue below. There was no «direct evidence of guilty knowledge introduced at the trial. Because the defendant was admittedly in possession of the vehicles soon after they had been taken, however, an inference of her knowledge of that fact arose under Section 812.022(2), Florida Statutes (1979), unless the possession was “satisfactorily explained.” See, Edwards v. State, 381 So.2d 696 (Fla.1980). In addition to this inference, the state heavily relied upon several allegedly incriminating circumstances to establish Ms. Johnson’s guilt. Among the most significant was the fact that, although the vehicles were new models, they were offered for sale at the suspiciously inexpensive price of $4,000 each. See, Nelson v. State, 372 So.2d 949 (Fla.2d DCA 1979). Thus, in final argument, the prosecutor emphasized:

These ears, ladies and gentlemen, were sold-you heard testimony from the people who bought them, for $4,000. These are large 1979 automobiles, ladies and gentlemen, and Ms. Aldwina Johnson was a person that dealt in automobiles. Wasn’t it a little unusual to her?

In an attempt to provide both a reason why the low price would not have engendered suspicion in her mind, and the “satisfactory explanation” required to dissipate the statutory inference, Ms. Johnson proffered that when she asked Smith about the price of the cars, he said,

“Some of the cars were smashed up and had been repaired, others had been repossessed and did not have any titles.”

Upon the state’s objection, the trial judge excluded this testimony as hearsay. This ruling was plainly erroneous.

The defendant specifically offered Smith’s statement not to demonstrate the truth of its contents-that is, that the vehicles were in fact damaged, untitled, or repossessed — but rather to show its effect upon the defendant’s state of mind, to dispel any suspicion which might arise from the price of the cars. In Nelson v. State, 388 So.2d 1276 (Fla.3d DCA 1980), this court recently and squarely held that testimony of such an out-of-court utterance, offered only to show its effect upon the defendant’s state of mind, is not hearsay and should be admitted. On the authority of Nelson and the cases cited in that opinion, we reach the same conclusion here. As is said in 2 Wigmore, Evidence § 254 (Chadbourn rev. 1979), “[s]o, too, ... the good or bad faith of one purchasing or receiving stolen goods, or otherwise unlawfully dealing with chattels, may be evidenced by repute or by express communications made to him.” E. g., State v. Simon, 70 N.J.L. 407, 57 A. 1016 (1904); People v. Dowling, 84 N.Y. 478, 50 N.Y.S.App. 752 (1881).

As did the Nelson court, we also reject the state’s contention in this case that the ruling was no more than harmless error. As has been noted, the subject matter of the proffered evidence vitally concerned what was the only real issue in the case-whether the defendant’s knowledge and attitude of mind were guilty or innocent. To support the state’s position on this question, there was only the statutory inference and circumstantial evidence of guilt. The exclusion of Smith’s statement resulted, at the same time, in a severe interference with the defendant’s ability to dissipate the effect of the statute and in the preclusion of an effective rebuttal of one of the primary circumstances upon which the state relied. Since the evidence of her guilt was otherwise far from overwhelming, we find that the error was clearly prejudicial and that a new trial is therefore required.

Reversed and remanded.

      . The fact that Smith’s existence could not be independently corroborated in any way was the most telling evidence against Ms. Johnson.


source: Caselaw Access Project

author: BASKIN, Judge.

license: Public Domain

text:
    STONEWALL INSURANCE COMPANY, Appellant, v. EMERALD FISHERIES, INC., Appellee.
    No. 79-2285.
    District Court of Appeal of Florida, Third District.
    Oct. 7, 1980.

      Lane, Mitchell & Harris and Byron B. Mathews, Jr., Miami, for appellant.
    Peeples, Earl, Smith, Moore & Blank and Richard M. Goldstein and Robert C. Apgar, Tallahassee, for appellee.
    Before HUBBART, C. J., and SCHWARTZ and BASKIN, JJ.
   BASKIN, Judge.

Based upon logical inferences derived from substantial competent evidence, the trial court determined that the damage to the engine of the vessel, Don Rafa, resulted from its operation with insufficient oil pressure or after it had been overheated, and that its operation in that manner was a negligent or intentional act of the captain or a crew member. The court’s ruling correctly determined that the loss was covered under Emerald Fisheries’ marine insurance policy issued by Stonewall Insurance Company. The burden was on Stonewall to establish that the loss resulted from a causé excepted from the policy. U. S. Liability Insurance Co. v. Bove, 347 So.2d 678 (Fla.3d DCA 1977). Emerald Fisheries was not required to disprove other possible causes. See Aetna Casualty & Surety Co. v. Florida Power & Light Co., 367 So.2d 1104 (Fla.3d DCA 1979).

The decision is, therefore, affirmed.


author: PER CURIAM.

text:
    NATIONAL LEAGUE FOR NURSING, Division of Measurement Testing Service, Appellant, v. Terry Ann BLUESTONE, Appellee.
    No. 79-2401.
    District Court of Appeal of Florida, Third District.
    Oct. 7, 1980.

      Walton, Lantaff, Schroeder & Carson and George W. Chesrow, Miami, for appellant.
    Lida & Krasnow and Mark Krasnow, Miami, for appellee.
    Before HUBBART, C. J., and NESBITT and DANIEL S. PEARSON, JJ.
   PER CURIAM.

This is an appeal by the National League for Nursing, the defendant below, from a non-final order denying its motion to dismiss for lack of jurisdiction over the person and for insufficiency of service of process. We have jurisdiction. Fla.R.App.P. 9.130(a) (3)(C)(i).

We reverse the order of the trial court upon a holding that (1) substituted service of process under Section 48.181, Florida Statutes (1979), utilized in the present case by the plaintiff, was not authorized where Bluestone’s complaint was devoid of allegations that the defendant is not a resident of Florida and that the cause of action arises from the defendant’s activities conducted in this state, Esberger v. First Florida Business Consultants, Inc., 338 So.2d 561 (Fla. 2d DCA 1976); (2) if, ar-guendo, Bluestone’s pleading had been sufficient to make Section 48.181, Florida Statutes (1979), applicable ab initio, shifting the burden to the defendant to show, by prima facie proof, its inapplicability, Electro Engineering Products Co., Inc. v. Lewis, 352 So.2d 862 (Fla 1977), the defendant made the required showing which was not overcome by the plaintiff, see American Baseball Cap, Inc. v. Duzinski, 359 So.2d 483 (Fla. 1st DCA 1978); Fawcett Publications, Inc. v. Rand, 144 So.2d 512 (Fla. 3d DCA 1962); and (3) Bluestone’s reliance on several provisions of Section 48.193, Florida Statutes (1979), to show jurisdiction is unavailing since (a) a party invoking this long-arm statute must effect personal service upon the defendant pursuant to Section 48.194, Florida Statutes (1979), Bradford White Corp. v. Aetna Insurance Company, 372 So.2d 994 (Fla. 3d DCA 1979), and (b) the complaint fails to allege sufficient jurisdictional facts justifying the invocation of Section 48.193, Florida Statutes (1979), Electro Engineering Products Co., Inc. v. Lewis, supra.

Reversed.


text:
    A-UNITED AUTO RENTALS OF BROWARD COUNTY, INC., Appellant, v. William H. LEE, Appellee.
    No. 80-201.
    District Court of Appeal of Florida, Third District.
    Oct. 7, 1980.

      Henry L. Kaye, Hollywood, for appellant.
    Spiegel & Singer and David H. Singer, Miami, for appellee.
    Before HUBBART, C. J., and SCHWARTZ and BASKIN, JJ.
   PER CURIAM.

The final judgment under review by this appeal is reversed as to the appellant A— United Auto Rentals of Broward County, Inc. and the cause is remanded to the trial court with directions to order a new trial in this cause as to punitive damages only [the default judgment and the compensatory damage award against the appellant being undisturbed by our ruling herein] upon a holding that it was reversible error for the trial court to have conducted a trial on punitive damages in this cause without properly notifying the appellant thereof, as such damages were unliquidated in nature. B/G Amusements, Inc. v. Mystery Fun House, Inc., 381 So.2d 318, 320 (Fla. 5th DCA 1980); Fla.R.Civ.P. 1.440(c). In all other respects the judgment under review is affirmed.

Affirmed in part; reversed and remanded in part.


text:
    Reuven TAKO and Jackie Tako, his wife, Appellants, v. MAYER ROTHKOPF INDUSTRIES, INC., etc. et al., Appellees.
    No. 80-245.
    District Court of Appeal of Florida, Third District.
    Oct. 7, 1980.
    Henry T. Courtney, Miami, for appellants.
    Joe N. Unger, Richard M. Welsh & Associates, Miami, for appellees.

      Before HUBBART, C. J., and NESBITT and DANIEL S. PEARSON, JJ.
   PER CURIAM.

This is an appeal by the Takos, the plaintiffs below, from a non-final order quashing service of process on Mayer Rothkopf Industries, Inc. and Mayer & Cie. We have jurisdiction. Fla.R.App.P. 9.130(a)(3)(C)(i).

We affirm the order of the trial court upon a holding that (1) the plaintiffs, whose complaint, in pertinent part, alleged that the defectively manufactured machine which caused injury to Reuven Tako was sold by the defendant manufacturers/brokers to Reuven Tako’s employer in 1972, obviously could not show that the machine was manufactured after July 1, 1973, the effective date of Section 48.193, Florida Statutes (1979), and otherwise failed to satisfy their burden to clearly show that the machine was manufactured after July 1, 1970, the effective date of the predecessor statute, Section 48.182, Florida Statutes (1971), so as to make either of these long-arm statutes authorizing service upon nonresident defendants applicable to the present case, see Babcock v. Volkswagenwerk Aktiengesellschaft, 371 So.2d 1100 (Fla. 3d DCA 1979); Yachts v. Ray Richard, Inc., 347 So.2d 779 (Fla. 3d DCA 1977); Joyce Bros. Storage & Van Co. v. Piechalak, 343 So.2d 97 (Fla. 3d DCA 1977); Griffis v. J. C. Penney Co., Inc., 333 So.2d 503 (Fla. 1st DCA 1976); (2) the plaintiffs have similarly failed to sufficiently allege jurisdictional facts to clearly justify service upon these defendants under Section 48.181, Florida Statutes (1979) (in effect since 1957), see Electro Engineering Products Co., Inc. v. Lewis, 352 So.2d 862 (Fla.1977); Elmex Corp. v. Atlantic Federal Savings and Loan Association of Ft. Lauderdale, 325 So.2d 58 (Fla. 4th DCA 1976); (3) if, ar-guendo, the plaintiffs’ pleading had been sufficient to make Section 48.181, Florida Statutes (1979), applicable ab initio, shifting the burden to the defendants to show, by prima facie proof, its inapplicability, Electro Engineering Products Co., Inc. v. Lewis, supra, the defendants made the required showing which was not overcome by the plaintiffs.

Affirmed.


author: SHARP, Judge.

text:
    Claud SIGMAN, Appellant, v. DUTCH INN OF ORLANDO, LTD., etc., and 1850 Preview Associates, Ltd., etc., Appellees.
    No. 79-956/T4-524.
    District Court of Appeal of Florida, Fifth District.
    Oct. 8, 1980.
    Robert Dyer of O’Neill, Dyer, Bogner & Larsen, Orlando, for appellant.
    Michael P. McMahon of Akerman, Sen-terfitt & Eidson, Orlando, for appellees.
   SHARP, Judge.

Appellant filed an interlocutory appeal seeking review of the lower court’s order denying injunctive relief and dissolving an injunction. We have jurisdiction to review only those matters. Based on the record before us, we affirm the lower court’s order.

AFFIRMED.

DAUKSCH, C. J., and COWART, J., concur.

      . Fla.R.App.P. 9.130(a)(3)(B).

      . Daytona Migi of Jacksonville, Inc. v. Daytona Fiberglass, Inc., 388 So.2d 228 (Fla. 5th DCA 1980).


text:
    Bill J. LYONS, Appellant, v. STATE of Florida, Appellee.
    No. 79-66.
    District Court of Appeal of Florida, Fifth District.
    Oct. 8, 1980.
    Richard L. Jorandby, Public Defender, and Larry S. Weaver, Asst. Public Defender, West Palm Beach, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Gregory C. Smith, Asst. Atty. Gen., Dayto-na Beach, for appellee.
   PER CURIAM.

AFFIRMED.

Swain v. Alabama, 380 U.S. 202, 85 S.Ct. 824, 13 L.Ed.2d 759 (1965); State v. Simpson, 326 So.2d 54 (Fla. 4th DCA 1976).

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


text:
    Clifford J. MILLER, Sr., Appellant, v. STATE of Florida, Appellee.
    No. 79-111.
    District Court of Appeal of Florida, Fifth District.
    Oct. 8, 1980.
    Richard L. Jorandby, Public Defender, and Tatjana Ostapoff, Chief, Appellate Division, West Palm Beach, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Gregory C. Smith, Asst. Atty. Gen., Dayto-na Beach, for appellee.
   PER CURIAM.

Affirmed without prejudice to seek appropriate post-conviction relief before the trial court. Robinson v. State, 373 So.2d 898 (Fla.1979).

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


author: DAUKSCH, Chief Judge.

text:
    In the Interest of D. J. P., a child, Appellant, v. STATE of Florida, Appellee.
    No. 79-227.
    District Court of Appeal of Florida, Fifth District.
    Oct. 8, 1980.
    Richard L. Jorandby, Public Defender and Mitchell J. Beers, Asst. Public Defender, West Palm Beach, for appellant.
    Jim Smith, Atty. Gen., Tallahassee and Edwin H. Duff, III, Asst. Atty. Gen., Day-tona Beach, for appellee.
   ON MOTION TO DISMISS

DAUKSCH, Chief Judge.

This ease is dismissed for lack of jurisdiction on the authority of In the Interest of R. J. B., No. 79-242/T4-383 (Fla. 5th DCA Sept. 17,1980).

CASE DISMISSED.

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


text:
    Floyd Gregory REEVES, Appellant, v. STATE of Florida, Appellee.
    No. 79-1506.
    District Court of Appeal of Florida, Fourth District.
    Oct. 8, 1980.
    Richard L. Jorandby, Public Defender, and Tatjana Ostapoff, Asst. Public Defender, West Palm Beach, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Ondina Felipe, Asst. Atty. Gen., West Palm Beach, for appellee.
   PER CURIAM.

We find no merit in appellant’s claim that the trial court erred in revoking his probation. However, we do agree that because the trial court found appellant guilty of two out of three alleged violations, an error occurred when the written order adjudicated the appellant guilty of all three violations.

Accordingly, the order of revocation is affirmed but the cause is remanded with directions that the finding that appellant was also guilty of violating his probation by leaving his employment without notification to his probation supervisor be stricken from the order.

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


text:
    INDIAN RIVER COUNTY, Florida, and Royal Globe Insurance Company, Appellants, v. David K. JANDAK, Appellee.
    No. 79-1513.
    District Court of Appeal of Florida, Fourth District.
    Oct. 8, 1980.
    Marjorie D. Gadarian of Jones & Foster, P. A., West Palm Beach, for appellants.
    Edna L. Caruso and Johnson, Ackerman & Bakst, P. A., West Palm Beach, for appel-lee.
   PER CURIAM.

AFFIRMED. See Weems v. Dawson, 352 So.2d 1196 (Fla. 4th DCA 1977).

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


text:
    STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, Queensboro Leasing, Inc., and Martin W. Spiegler, Appellants, v. Lillian LEHTO, Appellee.
    No. 79-1696.
    District Court of Appeal of Florida, Fourth District.
    Oct. 8, 1980.

      Prank M. Weathers of Weathers & Nark-ier, P. A., West Palm Beach, for appellants-State Farm Mut., Queensboro Leasing and Spiegler.
    William E. Pruitt of Pruitt & Pruitt, West Palm Beach, for appellee.
   PER CURIAM.

Appellants contend the trial court erred in setting aside the jury verdict for appellants and granting a new trial. Based upon our consideration of the record and briefs of counsel, we hold that appellants have failed to successfully assume the heavy burden which exists when one contends the trial judge abused his discretion in granting a motion for new trial. Cloud v. Fallis, 110 So.2d 669 (Fla.1959); Weems v. Dawson, 352 So.2d 1196 (Fla. 4th DCA 1977); Bullard v. Canale, 260 So.2d 237 (Fla. 4th DCA 1972).

Accordingly, the order appealed from is affirmed.

AFFIRMED.

LETTS, C. J., and DOWNEY and AN-STEAD, JJ., concur.


author: DOWNEY, Judge.

text:
    Lester SANDLES and Edith Sandies, his wife, Appellants, v. SHERIDAN LAKES CONDOMINIUM, INC., a Florida Corporation not for profit, Appellee.
    No. 80-118.
    District Court of Appeal of Florida, Fourth District.
    Oct. 8, 1980.
    Abraham H. Carchman, Hallandale, for appellants.
    Jerrold Knee of Salter, Yeslow & Burn-stein, Hollywood, for appellee.
   DOWNEY, Judge.

It appears the appellee Condominium Association’s Board of Directors determined it was necessary to paint the exterior of the condominium building. The cost thereof was prorated among the unit owners, and appellants’ share came to $197.12. Appellants’ refusal to pay the assessment of $197.12 by the Board led to the filing of a claim of lien on appellants’ condominium unit, appellants’ notice of contest of said lien, and eventually a suit to foreclose said lien.

Appellants’ answer contained a general denial and four affirmative defenses. The first affirmative defense charged that the Board unlawfully delegated to Gussie Wal-lach its duty regarding the care and maintenance of the exterior of the building; Gus-sie Wallach recommended painting (instead of steam cleaning) the exterior, thus requiring an expenditure of $8,000 to $9,000, contrary to the recommendation of the Hollywood Building Inspector; the Board simply “rubber stamped” Gussie’s recommendation; as a result the assessment involved was “made without competence on the part of the Board of Directors ... in violation of their duty, as imposed by the Condominium documents.”

The second affirmative defense is that another building on the same tract was steam cleaned for $650.00 which treatment will have the same duration as the alleged painting heretofore referred to. In addition both the paint and workmanship were inferior, and some of the work had not been done.

The third affirmative defense claimed the assessment was bad because the Board was composed of four directors who were not lawfully elected; the validity of their election is an issue in a class action suit in the Seventeenth Judicial Circuit instituted by appellants before appellees began the present litigation. Therefore, appellants contend, this cause should be stayed pending determination of the prior litigation.

The fourth affirmative defense alleges that appellants were residents of Florida and thus appellee should have sued them in “small claims court” rather than by foreclosure.

Appellee filed a motion for summary judgment and attached an affidavit by one of appellee’s directors in which he states that the Board determined the assessment of $8500 was necessary to paint the building and that appellant’s share was $197.12, which had not been paid. At the hearing on the motion for summary judgment counsel for appellees and appellant Lester San-dies argued their respective positions during which they discussed much of the factual setting of the case. However, the only proof in the record is appellee’s affidavit that the Board made the assessment and it was not paid. Appellee offered no proof to support its burden on a motion for summary judgment of vitiating all of appellants’ affirmative defenses. Affirmative defenses two and four are inadequate as a matter of law; however, defenses one and three require contradictory proof from appellee before they may be disposed of. The argument of counsel at the motion hearing does not arise to the quality of proof required to defeat the affirmative defenses and demonstrate the nonexistence of genuine issues of material fact.

Appellants also complain of the award of attorney’s fees. We find no error in the amount of the award; but since the summary judgment itself must be reversed, the award of attorney’s fees should also be vacated.

Accordingly, the orders appealed from are reversed and the cause is remanded for further proceedings in accordance with this opinion.

REVERSED AND REMANDED.

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

      . (Both appellants are New Jersey lawyers and appeared pro se by Lester Sandies.)

      . Appellants rely upon Papalexiou v. Tower West Condominium, 167 N.J.Super. 516, 401 A.2d 280 (1979), as authority for attacking the action of the Board of Directors on the grounds of incompetency which is rather generally alleged in the first affirmative defense.


text:
    ED-JO CORPORATION OF AMERICA, INC., Edward Cerrito, and Joan R. Cerrito, Appellants, v. Jacqueline R. KOVITCH, Appellee.
    No. 80-847.
    District Court of Appeal of Florida, Fourth District.
    Oct. 8, 1980.
    Timothy H. Kenney of Winkel, Sims, Kenney & Crosswell, Palm Beach, for appellant.
    Richard W. Wasserman, Miami Beach, for appellee.
   PER CURIAM.

This is an appeal from a non-final order striking a demand for a jury trial on a counterclaim for usury filed in response to appellee’s foreclosure complaint. The trial court’s order granting the appellee’s motion to strike is not one of those non-final orders from which an interlocutory appeal is authorized by Fla.R.App.P. 9.130(a)(3). Moreover, certiorari jurisdiction has not been properly invoked since appellants have an adequate remedy on appeal from final judgment. That being so, the appeal is hereby dismissed.

LETTS, C. J., and ANSTEAD and BER-ANEK, JJ., concur.


text:
    Gregg LINDSAY, Appellant, v. The TRAVELERS INDEMNITY COMPANY, etc., Appellee.
    No. 77-1902.
    District Court of Appeal of Florida, Third District.
    Oct. 8, 1980.
    Horton, Perse & Ginsberg and Edward A. Perse, Joe Garrett, Miami, for appellant.
    Adams & Ward and Amy Shield Levine, Miami, for appellee.
    Before HUBBART, C. J., and HENDRY and SCHWARTZ, JJ.
   ORDER ON MANDATE

PER CURIAM.

WHEREAS, the judgment of this court was entered on February 27, 1979 (368 So.2d 605) affirming in part and reversing in part the judgment of the Circuit Court of Dade County, Florida, in the above styled cause; and

WHEREAS, on review of this court’s judgment, by certiorari, the Supreme Court of Florida by its opinion and judgment filed June 12, 1980 and mandate now lodged in this court, approved in part and quashed in part and remanded the cause with instructions.

NOW, THEREFORE, It is Ordered that this court’s mandate heretofore issued in this cause on April 4,1979 is withdrawn, the judgment of this court filed in this cause on February 27, 1979 except as is affirmed by the judgment of the Supreme Court dated June 12, 1980 is vacated and the said opinion and judgment of the Supreme Court of Florida is herewith made the opinion and judgment of this court, and the judgment of the trial court is hereby reinstated. Costs allowed shall be taxed in the trial court (9.400(a) Florida Appellate Procedure Rules).


author: BERANEK, Judge.

text:
    Ivone S. O’BLENIS, Appellant, v. FLORIDA DEPARTMENT OF LABOR AND EMPLOYMENT SECURITY, Division of Employment Security, and Audio Intelligence Devices, Appellees.
    No. 78-2632.
    District Court of Appeal of Florida, Fourth District.
    Oct. 15, 1980.
    Suanne Pierce and Jacquelyn E. Stein-berg, and Howard I. Alabaster, Certified Legal Intern, Legal Aid Service of Broward County, Inc., Fort Lauderdale, for appellant.
    James R. Parks, Gen. Counsel, and John D. Maher, Tallahassee, for appellees.
   BERANEK, Judge.

This is an appeal in an unemployment compensation matter. The Board of Review of the State Department of Commerce affirmed the Appeals Referee’s finding that an employee was not entitled to unemployment compensation. The Appeals Referee found that the employee had been discharged from her employment for misconduct connected with her work. The employee appeals and we reverse.

Appellant raises numerous points, but we find it necessary to consider only one which requires reversal. It is our conclusion that the Referee denied the employee her basic right to compulsory attendance of witnesses by denying her request to issue subpoenas for persons she wished to call at the hearing to testify in her behalf. See Spiegel v. Lavis Plumbing Services, 373 So.2d 72 (Fla.3d DCA 1979), and Williams v. Florida Department of Commerce, 374 So.2d 1158 (Fla.3d DCA 1979).

The employee was dismissed from her job as a cafeteria attendant. The claims examiner found her eligible for unemployment compensation and concluded she had not been dismissed for misconduct connected with her work. The Appeals Referee, after a contested hearing, found- her ineligible and concluded dismissal was due to misconduct. The Board of Review of the Department of Commerce affirmed the order of the Appeals Referee.

At the hearing before the Appeals Referee, the employer was represented by counsel and the employee was unrepresented. The employer called two witnesses who testified to the misconduct of the employee. The employee was told to wait until after all of the employer’s evidence had been introduced before beginning cross-examination of any of the witnesses. After the employer had concluded with its presentation of evidence, the Referee heard closing argument from employer’s counsel. After this argument was concluded, the Referee advised the employee that “You have the right to cross-examine either of these witnesses or, if you don’t prefer to cross-examine, because cross-examination is a very difficult thing to handle if you are not experienced in it, you’re privileged to do it. If you want to, go ahead. But, if you don’t want to, you still have the right to reply

Instead of cross-examining the witnesses, the employee proceeded to make various statements, many of which were actually irrelevant to the issues. During her statement, she asked the Referee on several occasions to issue subpoenas to several witnesses whom she wished to have testify in her behalf. The Referee declined to do so finding that the testimony of these individuals would probably not be of assistance. In so doing, the Referee denied the employee the basic due process right of compulsory process. The employee explained that the witnesses she wanted to call would not come voluntarily because they were afraid of being fired from their jobs with the employer.

In Spiegel v. Lavis Plumbing Services, supra, the Third District correctly held that minimal due process requires the right to subpoena witnesses to testify on one’s behalf. The Court there held that the Appeals Referee could not properly condition an employee’s exercise of this right by requiring him to show “good cause” for the issuance of requested subpoenas. Here, the procedure at the hearing and before was tantamount to a requirement of good cause before issuance of subpoenas. We conclude that the Referee’s refusal to issue subpoenas constituted error requiring that the order in question be vacated and the matter remanded for further proceedings.

REVERSED AND REMANDED.

MOORE and HURLEY, JJ., concur.

      . The official Notice of Hearing Before the Appeals Referee issued by the Department of Commerce Unemployment Compensation Appeal Tribunal contained the following advice as to how proceedings would be conducted:
      If you have witnesses whom you wish to have testify at the hearing, you must notify them and arrange for them to be present.... If a witness refuses to appear, notify the Referee either before or at the time of the hearing and if he deems the testimony of the witness essential, he will issue a subpoena to compel his attendance.
      This Notice improperly requires that a party must make a prima facie showing of good cause before a subpoena will be issued to compel attendance of a witness.


text:
    Anita STEIN and Warren Stein d/b/a Murray Realties and Tri-Engel Realties, Appellants, v. Klaus R. SCHELL and Theresa E. Schell, Appellees.
    No. 79-1975.
    District Court of Appeal of Florida, Fourth District.
    Oct. 15, 1980.

      Larry Finkelstein of Law Offices of James Cary Jacobson, Hollywood, for appellants.
    Robert C. Maland, Miami, for appellees.
   PER CURIAM.

This is an appeal from a final summary judgment holding that the appellants were not entitled to a brokerage commission under the terms of an agreement with the appellees. The agreement is ambiguous as to the liability of the appellees to the appellants under the circumstances of this case. In the trial court both sides submitted affidavits supporting a construction of the contract in their favor. Because the controlling provisions of the contract are ambiguous and the parties are in disagreement as to the proper construction thereof, we believe it was error to resolve the dispute by summary judgment. Westchester Fire Insurance Company v. In-Sink-Erator, 252 So.2d 856 (Fla. 4th DCA 1971).

Accordingly, this cause is reversed for further proceedings consistent herewith.

ANSTEAD, GLICKSTEIN and HURLEY, JJ., concur.


author: HERSEY, Judge.

text:
    CITY OF RIVIERA BEACH, a Municipal Corporation of the State of Florida, Appellant, v. John C. CLARK, Appellee.
    No. 79-2197.
    District Court of Appeal of Florida, Fourth District.
    Oct. 15, 1980.

      Malcolm Anderson of Law Offices of Malcolm Anderson, North Palm Beach, for appellant.
    Jack H. Cook, West Palm Beach, for ap-pellee.
   HERSEY, Judge.

The City of Riviera Beach appeals from a final judgment and various non-final orders. The primary question to be determined is the correctness of an award of attorneys’ fees to appellee. We turn first to a consideration of certain procedural matters.

A final order was entered on July 31, 1979 awarding the sum of $15,000 to appellee pursuant to an oral stipulation made in open court. There was no motion for rehearing. Notice of appeal filed October 17, 1979 was therefore untimely.

The order of July 31, 1979 reserved jurisdiction for the purpose of assessing costs and attorneys’ fees. Subsequently, appellee filed a motion to tax costs and for attorneys’ fees which was objected to by the City. On September 12, 1979 the court denied the City’s objections and rehearing on that order was denied on September 19, 1979. Because the motion for rehearing does not toll the time for taking an appeal from the non-final order of September 12, 1979, the notice of appeal of October 17, 1979 was untimely.

On October 22, 1979 the trial court entered an order requiring the City to pay appellee’s attorneys’ fee in the amount of $6,500. This order was timely appealed. Appellant contends that this order is erroneous because the City cannot properly be compelled to pay attorneys’ fees here or, in the alternative, that the amount of the award is excessive.

First, the City maintains that attorneys’ fees were taxed against it pursuant to Section 627.428 Florida Statutes (1979) and since the City is not an insurer, the statute does not apply and the award is therefore erroneous. The record discloses that the award was made, not,on the basis of the statute, but pursuant to an oral stipulation made in open court. The contents of that oral stipulation were disputed by the parties but the trial court specifically determined that the City, in tfie stipulation, agreed to pay attorneys’ fees.

Second, the amount of the award was supported by competent, substantial evidence. One expert testified that $3,500 would be a reasonable fee, but another, whose qualifications as an expert were readily conceded by the City, testified that an appropriate fee would be $6,500. This figure was based upon the gross amount of the recovery ($15,000 plus reasonable attorneys’ fees) as provided in the contingency fee contract between appellee and his counsel. Consideration was also given to the contingency nature of the case, the difficulty of issues involved, the amount of time expended and the skill and knowledge of appellee’s attorneys.

Absent a clear showing of abuse of discretion, an award of attorneys’ fees will not be disturbed on appeal. All-Star Insurance Corporation v. Scandia, Inc., 353 So.2d 171 (Fla. 3rd DCA 1977).

No such abuse of discretion being demonstrated here, we find the award adequately supported by the record and therefore affirm.

AFFIRMED.

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


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    Anne Marie MacMURDO a/k/a Anne Marie Stafford, Appellant, v. The UPJOHN COMPANY, a Michigan Corporation, The University of Miami, a nonprofit organization, and Arthur G. Shapiro, M.D., Appellees.
    No. 79-2422.
    District Court of Appeal of Florida, Fourth District.
    Oct. 15, 1980.
    Bryan S. Henry of Atkinson, Golden, Ba-cen & Diner, P. A., Hollywood, for appellant.
    James C. Blecke of Blackwell, Walker, Gray, Powers, Flick & Hoehl, Miami, for appellees University of Miami and Arthur G. Shapiro, M. D.
   HERSEY, Judge.

This is an appeal from a final order dismissing plaintiff’s complaint without leave to amend “without first proceeding through Medical Mediation pursuant to F.S. 768.44.”

We reverse on the authority of Aldana v. Holub, 381 So.2d 231 (Fla.1980) which declared Florida’s Medical Mediation Statute unconstitutional.

It is conceded that the amended complaint did not allege medical malpractice as to The University of Miami and Arthur G. Shapiro, M.D., appellees here, but did attempt to allege a cause of action for breach of warranty and for strict liability.

Relying on case law from other jurisdictions appellees contend that neither the treating physician nor the hospital can be found liable under theories of strict liability or breach of implied warranty for injuries sustained by a patient as a result of use of a drug prescribed by the physician and administered by an employee of the hospital. This being so, argue appellees, no cause of action could be stated and this Court should affirm, applying the familiar principle that the lower court should be affirmed when the judgment is consistent with any theory revealed by the record, regardless of the reasons stated by the trial judge.

Even if we were prepared to adopt the rule insulating the physician and the hospital from liability under the circumstances postulated by appellees, we are not prepared, at this stage of the pleadings, to accept as an inevitable conclusion that appellant will be unable to state a cause of action against appellees on any theory. The order from which this appeal is taken quite clearly demonstrates that the trial court considered submission of the claim to medical mediation an essential prerequisite to litigation.

Having made that determination it seems unlikely that other factors were taken into consideration. It is therefore appropriate to remand this cause to the trial court in order to give appellant her day in court unfettered by the unconstitutional impediment which cut short her initial efforts to seek redress for her injuries, at least insofar as these appellees are concerned.

We therefore reverse and remand for further proceedings.

REVERSED AND REMANDED.

MOORE and GLICKSTEIN, JJ., concur.


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    STATE of Florida, Appellant, v. Eric Thacker EVANS, Appellee.
    No. 80-384.
    District Court of Appeal of Florida, Fourth District.
    Oct. 15, 1980.
    Jim Smith, Atty. Gen., Tallahassee, and Russell S. Bohn, Asst. Atty. Gen., West Palm Beach, for appellant.
    Stephen R. Keroff of Keller & Keroff, P. A., West Palm Beach, for appellee.
   PER CURIAM.

The State appeals an order granting ap-pellee’s motion to suppress contraband. A recitation of the facts in this case is unnecessary because at the hearing on the motion, the State virtually agreed that the motion was well taken. In response to the court’s question as to whether the State concurred in the defendant’s position, the assistant state attorney replied: “Well, based upon the facts that have been put in the record, I believe so. Probably.”

The State may not lead the court to an incorrect conclusion and then be heard to complain that the court erred.

AFFIRMED.

MOORE, HERSEY and GLICKSTEIN, JJ., concur.


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    STATE of Florida, Appellant, v. Esau PERNELL, Appellee.
    No. 80-417.
    District Court of Appeal of Florida, Fourth District.
    Oct. 15, 1980.
    Michael J. Satz, State’s Atty., and Patti Englander, Asst. State’s Atty., Fort Laud-erdale, for appellant.
    Robert C. Stone of Stone & Dell, P.A., Hollywood, for appellee.
   PER CURIAM.

This case involves an application of the speedy trial rule. Fla.R.Crim.P. 3.191. From May 10, 1978, when appellee was charged with delivery of cocaine through March 26,1979, the appellee was granted no less than five requests for continuance. On May 14, 1979 the appellant, State of Florida, was granted a continuance because its chemist was not available for trial. On August 24, 1979 the original trial judge recused himself and the matter was set for trial before a successor judge. The appel-lee’s motion for discharge was heard on September 10, 1979 and granted on February 26, 1980. Speedy trial time was tolled by order of the court on August 24, 1979 and the appellee specifically waived speedy trial in each of his motions for continuance. The State now appeals the order granting the discharge and we reverse.

The trial court relied on Negron v. State, 306 So.2d 104 (Fla.1974) and State v. Reese, 359 So.2d 33 (Fla. 4th DCA 1978) in granting the discharge, and correctly so at that time. Each of those cases has been overruled. See, Butterworth v. Fluellen, 389 So.2d 968 (Fla.1980); State v. Van Johnson, 386 So.2d 1316 (Fla. 4th DCA 1980). Accordingly, the order granting the appellee’s discharge is reversed and this cause is remanded for further proceedings.

REVERSED and REMANDED.

MOORE, HERSEY and GLICKSTEIN, JJ., concur.


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    STATE of Florida, Appellant, v. Freddy Duane BLAKLEY, Appellee.
    No. 79-2517.
    District Court of Appeal of Florida, Fourth District.
    Oct. 8, 1980.
    Jim Smith, Atty. Gen., Tallahassee, and Paul H. Zacks and Ondina Felipe, Asst. Attys. Gen., West Palm Beach, for appellant.
    Timothy J. Hmielewski, Fort Lauderdale, for appellee.
   PER CURIAM.

AFFIRMED. See: Cuyler v. Sullivan, ___ U.S. ___, 100 S.Ct. 1708, 64 L.Ed.2d 333, and Meeks v. State, 382 So.2d 673, 675 (Fla.1980).

ANSTEAD, BERANEK and HERSEY, JJ., concur.


author: PER CURIAM. BOOTH, Judge, PER CURIAM.

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    STATE of Florida ex rel. the PENSACOLA NEWS-JOURNAL, INC. and Florida Freedom Newspapers, Inc., Petitioners, v. The Honorable Erwin FLEET, Circuit Judge of the First Judicial Circuit in and for Okaloosa County, Florida, Respondent.
    No. WW-41.
    District Court of Appeal, of Florida, First District.
    Sept. 9, 1980.
    Rehearing Denied Oct. 27, 1980.
    William H. Clark of Clark, Partington, Hart & Hart, Pensacola, for The Pensacola News-Journal.
    Robert E. Lee, Fort Walton Beach, for Florida Freedom Newspapers, Inc.

      Jim Smith, Atty. Gen. and Lucy H. Harris, Asst. Atty. Gen., Tallahassee, for respondent.
   PER CURIAM.

This cause is before us on a motion to review an order closing a pretrial hearing on a motion to suppress an allegedly illegally obtained confession in the case of State v. Livingston, Case No. 80-286, now pending in the First Judicial Circuit.

The order directing closure was entered upon the court’s own motion. Counsel for the defendant objected to a closed hearing and the State took no position on the issue. It is apparent that in ordering closure the trial judge relied heavily upon the United States Supreme Court decision in Gannett v. DePasquale, 443 U.S. 368, 99 S.Ct. 2898, 61 L.Ed.2d 608 (1979), for the proposition that it is the duty of the trial judge to evaluate the effects of pretrial publicity and to grant closure when, in the opinion of the court, the opening of certain procedures to the public would result in a denial of the defendant’s ability to receive a fair trial. The respondent takes the position that the granting of closure is a discretionary act that cannot be reached by mandamus. We disagree and concur in the opinion of the Fourth District Court of Appeal in Miami Herald Publishing Co. v. State, 363 So.2d 603 (Fla. 4th DCA 1978). The court, in Miami Herald, concluded that the following guidelines are applicable to closure determination: (1) that closure is necessary to prevent a serious and imminent threat to the administration of justice, (2) that no less restrictive alternative measures are available, and (3) that closure will in fact achieve the court’s purpose. There has been no showing in this record that those guidelines or other relevant standards have been applied. In this case defense counsel insists that an open suppression hearing will enhance the administration of justice. We find no evidentiary base for the court’s conclusion to the contrary. The court appears to assume that the content of the defendant’s statement will of necessity be revealed during the suppression hearing. We do not see this as being a valid assumption in light of the fact that only the circumstances surrounding the giving of the statement are at issue, not necessarily the contents of the alleged confession. Should the judge’s worst fears become a reality and it becomes necessary to explore the content of the statement, less restrictive alternatives than those proposed by the judge are available. The public and press in such an instance might be excluded if and when the statement is introduced. We see no reason why such procedure would interfere with or frustrate the choosing of a jury and the sequestering of said jury if such is the court’s desire.

We reverse and remand for action consistent with this order.

SHAW and WENTWORTH, JJ., concur.

BOOTH, J., specially concurs with opinion.

BOOTH, Judge,

specially concurring.

The majority holds that, before closing the suppression hearing, the trial court’s “worst fears [must] become a reality” and it be necessary that the confession be introduced or its contents explored. It is conceivable that the circumstances surrounding the giving of the confession can be fully considered without the contents of the confession being revealed. The court, of course, may inspect the confession in camera at the hearing without discussion of its contents. I agree with the majority, therefore, that the suppression hearing be open to the public unless and until there is a necessity for closure.

The unique dilemma of the trial court here is that a motion for change of venue was filed by defendant simultaneously with the filing of the motion to suppress. The basis of the motion for change of venue is pretrial publicity, prejudicing the defendant’s right to a fair trial in Okaloosa County. Another motion filed on behalf of the defendant is for determination of insanity. This motion alleges that defendant is “insane” and not competent to assist in his defense. In addition to these motions, defendant wants the suppression hearing open since news reports already published have made public the information that defendant confessed to the crime; and, as stated by defendant’s counsel at the closure hearing: “It would be more prejudicial to close this [suppression] hearing where the papers couldn’t come in here and find some of the circumstances of how this statement was made when it shouldn’t have been.”

Thus, the trial court has the difficult task of protecting defendant’s right to a fair trial and dealing with the various demands made by the defense, which include, on the one hand, a change of venue because of undue publicity and, on the other hand, defendant’s demand that the suppression hearing be open to afford publicity as to the circumstances of the giving of the confession. The task cannot be reduced to a simplistic formula but depends on the facts and issues as they develop in this ease. The majority has, I believe, correctly balanced the sensitive issues and, while not withdrawing from the trial court its discretion and available options, including closure, has required public attendance to the fullest extent consistent with defendant’s right to a fair trial and in accord with his demand for an open hearing.

On Motion For Rehearing

PER CURIAM.

Respondent seeks rehearing on the stated ground that mandamus is not an appropriate remedy in the circumstances of this case. However, we assumed jurisdiction pursuant to Fla.R.App.P. 9.100(d), and not by way of mandamus. The opinion was intended to express disagreement with the respondent’s contention that the closure in question, being a discretionary act, was not subject to review under the circumstances presented, and also disagreement with the respondent’s contention that Gannett v. DePasquale, 443 U.S. 368, 99 S.Ct. 2898, 61 L.Ed.2d 608 (1979), mandated closure. We do not disagree with respondent’s statement of the general rule that mandamus does not lie to review a discretionary act or to determine an abuse of discretion.

Fla.R.App.P. 9.100(d) now provides the means “to review an order excluding the press or public from access to any proceeding ...” and resolves any potential problems in the prior use of prohibition or writ under authority of former Rule 4.5(g), F.A.R., to review such orders. State ex rel. Miami Herald Publishing Co. v. McIntosh, 340 So.2d 904 (Fla. 1977); State ex rel. Miami Herald Publishing Co. v. Rose, 271 So.2d 483 (Fla. 2d DCA 1972).

Rehearing is denied.

BOOTH, SHAW and WENTWORTH, JJ., concur.


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    STATE of Louisana v. John F. CHAMBERS.
    No. 64307.
    Supreme Court of Louisiana.
    Sept. 13, 1979.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., John M. Mam-oulides, Dist. Atty., Abbott J. Reeves, Asst. Dist. Atty., for plaintiff-appellee.
    A. J. Boudreaux, Indigent Defender Board, Metairie, for defendant-appellant.
   PER CURIAM.

Defendant appeals from his conviction for forcible rape and sentence of forty years at hard labor on the basis of one assignment of error. We have reviewed the assignment of error and found it to be without merit.

Defendant has filed a pro se brief indicating some dissatisfaction with his appellate representation. Such allegations are more properly raised by an application to the district court for a writ of habeas corpus.

Defendant’s conviction and sentence are affirmed.

      . Two assignments of error filed in the court below but not argued on appeal are deemed abandoned.