text:
    STATE of Florida ex rel. John MEYERS, Jay Meyers, and Stewart Meyers, Appellants, v. Claude MILLER, Sheriff of Brevard County, Florida, Appellee.
    No. 79-1392/T4-618.
    District Court of Appeal of Florida, Fifth District.
    Oct. 15, 1980.

      Harry Stein, Melbourne, for appellants.
    Jim Smith, Atty. Gen., Tallahassee, and Richard W. Prospect, Asst. Atty. Gen., Day-tona Beach, for appellee.
   FRANK D. UPCHURCH, Jr., Judge.

Appellants were wanted in Tennessee on criminal charges based on an alleged violation of Tennessee securities laws. The violations arose out of investment contracts in earthworm enterprises. In February, 1979, appellants were arrested in Florida on a Governor’s rendition warrant issued in response to the demand of the Governor of Tennessee.

Appellants petitioned the circuit court of Brevard County for a writ of habeas corpus. The trial court denied the writ and this appeal was taken.

The first question raised was whether the trial court erred in denying appellants’ writ of habeas corpus where the Governor’s rendition warrant was not introduced by the state at the habeas corpus hearing.

It has been held that introduction of the rendition warrant is essential. Bentzel v. State, 365 So.2d 441 (Fla. 3d DCA 1978); Simpson v. State, 332 So.2d 693 (Fla. 1st DCA 1976); DiPiero v. State, 300 So.2d 700 (Fla. 3d DCA 1974). Recently, in Fauls v. Sheriff of Leon County, 384 So.2d 238 (Fla. 1st DCA 1980), the First District Court of Appeal receded somewhat from Simpson and certified that its decision was in direct conflict with Bentzel.

None of those cases are directly on point. In the case before us, appellants attached copies of the various documents, including a photocopy of the rendition warrant to their petition. Their petition then challenged the documents on the basis that they were not properly authenticated as required by chapter 941, Florida Statutes.

Appellants opened the proceeding. Counsel for appellants announced:

Your Honor, at this time the Petitioner is before you on the writ heretofore filed and I don’t believe I have received any return from the State Attorney on the writ out of the Court, and I’ll just go ahead and proceed with the writ I set forth in my petition, which is basically the papers accompanying the demand that the State of Florida Governor not authenticated, State of Florida, and I have attached photocopies of various documents sent forth through Tennessee, and the State of Florida rendition warrant .... And if you will note, Your Honor, that none of the papers show that the Judge of the particular Court out of which the warrant was issued, nor was the affidavit, which was the cause of the issuance of the warrant, authenticated.

Counsel then continued as to other grounds raised in the petition. The court then ruled that the documents as presented to it were properly authenticated. That ruling has not been questioned in this appeal. Instead, appellants contend that the state failed to introduce the rendition warrant in evidence. That argument has no merit. Appellants are saying that the court should not consider a document which they had submitted to the court for a ruling on the validity of its authentication, because the document was not introduced later by the state. Obviously, such a position has no substance.

Appellants could have insisted that the state initially justify their detention, and had they done so the state would have been required to introduce the rendition warrant. See DiPiero v. State. They are not permitted, however, to submit the rendition warrant to the court for consideration for one purpose and now complain that the court considered it for another.

Appellants also question whether the trial court erred in denying appellants’ writ of habeas corpus where the affidavit and warrant issued in the demanding state failed to substantially charge the petitioners with a crime under the laws of the state.

Whether the affidavit before the magistrate in the demanding state substantially charges a crime is a jurisdictional prerequisite essential to the issuance of the rendition warrant. State ex rel. Dyer v. Wilson, 260 So.2d 241 (Fla. 4th DCA 1972). The test is whether the affidavit substantially charges a crime under the law of the demanding state. See § 941.03, Fla.Stat. (1979); Chase v. Chase, 93 Fla. 963, 103 So. 113 (1927).

In Cossette v. State, 221 So.2d 427 (Fla. 4th DCA 1969), the court enunciated the applicable criteria that the magistrate should apply:

[T]hat each factual allegation of the complaint need not be independently documented; that sufficient information is to be presented and recital of some of the underlying circumstances made to enable the magistrate to determine that the charge is not capricious and is supported; and that where reason for crediting the source of the information is given and where a magistrate has found probable cause the courts should not invalidate the warrant by interpreting the affidavit in a hypertechnical, rather than a common sense manner.

Id. at 430.

A common sense review of the affidavit indicates that the essentials of the alleged crime are stated with a reasonable degree of sufficiency. The securities are described as investment contracts dealing with the sale of goods and services related to earthworm growing. The affidavit alleges a continuing pattern of conduct between January 1, 1977 and July 17, 1978, in Rutherford County, Tennessee. The acts constituting fraudulent or deceitful conduct are provided (misrepresented the ease of growing earthworms, agreed to buy back all worms produced by the buyer, etc.).

Appellants also contend that the arrest warrant issued out of Tennessee lacks a judicial determination that probable cause existed. The Tennessee Supreme Court, in In Re Dender, 571 S.W.2d 491 (Tenn.1978), declared that arrest warrants may only issue upon a finding of probable cause. The United States Supreme Court, in Michigan v. Doran, 439 U.S. 282, 99 S.Ct. 530, 58 L.Ed.2d 521 (1978), held that where a finding of probable cause is made by a judicial officer in the demanding state and the governor of the asylum state has acted on a requisition for extradition based upon it, no further judicial inquiry may be had on that issue in the asylum state. Therefore, since the arrest warrant issued in Tennessee, which was based upon the affidavit, represents a determination that probable cause existed, once the Governor of Florida acted on the requisition for extradition, no further judicial inquiry could be had on that issue in Florida.

AFFIRMED.

DAUKSCH, C. J., and ORFINGER, J., concur.

      . This procedure was not questioned.


source: Caselaw Access Project

author: COBB, Judge.

license: Public Domain

text:
    Mira Alfredo FIERRO, etc. et al., Appellants, v. Victor Freeman LEWIS, etc. et al., Appellees.
    No. 79-1451/T4-633.
    District Court of Appeal of Florida, Fifth District.
    Oct. 15, 1980.
    Ned N. Julian, Jr., Sanford, for appellants.
    Phillip H. Logan, Sanford, for appellees.
   COBB, Judge.

The issue presented by this appeal is whether or not a noticed hearing is required for the entry of an order of default against a party who has filed a notice of appearance in the case. See Rule 1.500(b), Florida Rules of Civil Procedure. The appellants, who did not file any responsive pleadings or motions, suffered entry of a default and a final judgment thereupon at an unnoticed hearing, which was held after service upon appellants of a copy of the appellees’ motion for default. After receipt of the motion the appellants still did not file a response, but instead relied upon their interpretation of the rules that they could file such a response at any time prior to a noticed hearing on the motion. After entry of judgment, the appellants moved to set aside the default on the basis that it was entered without notice of hearing. The trial court denied the motion. We affirm.

Rule 1.500(b), Florida Rules of Civil Procedure, does not require a noticed hearing for entry of an order of default against a party who has failed to plead or otherwise defend; it requires only that a copy of the application for default be served upon a party who has filed or served a paper in the action. See Trawick, Fla. Prac. and Proc., § 25-2 (1979).

In the instant case, the appellants filed a motion to vacate on grounds of mistake and excusable neglect. The evidence adduced at the hearing on this motion shows that the reason for inaction was the interpretation of appellants’ counsel that a notice of hearing in regard to the motion for default would be forthcoming, and this notice would set “the absolute deadline” for action to be taken by the appellants. That is not good cause. This record supports entry of the default by the trial judge and his refusal to set it aside.

AFFIRMED.

COWART, J., concurs.

DAUKSCH, C. J., dissents without opinion.


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

text:
    Tom Andrain BYRD, Appellant, v. STATE of Florida, Appellee.
    No. 79-1758/T4-713.
    District Court of Appeal of Florida, Fifth District.
    Oct. 15, 1980.
    Richard L. Jorandby, Public Defender, and Tatjana Ostapoff, Chief, Asst. Public Defender, Appellate Division, West Palm Beach, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Evelyn D. Golden, Asst. Atty. Gen., Dayto-na Beach, for appellee.
   FRANK D. UPCHURCH, Jr., Judge.

Appellant Tom Andrain Byrd was charged with burglary of a dwelling and grand theft. At the time of the offense, he was seventeen years old. Under section 39.04(2)(e)(4), Florida Statutes (1979), jurisdiction was vested in the circuit court.

Appellant moved to dismiss alleging that section 39.04(2)(e)(4) was unconstitutional. The motion was denied and he entered a plea of nolo contendere specifically reserving the right to appeal this denial. The count of grand theft was nol prossed.

The constitutionality of section 39.-04(2)(e)(4) was recently upheld in State v. Cain, 381 So.2d 1661 (Fla.1980).

Appellant also contends that the court incorrectly sentenced him to fifty-two weeks in the county jail, less time served, plus five years probation. He claims this does not conform to the announced intention of the court and that it is illegal because it exceeds the statutory maximum. The state acknowledges the error, which was an inadvertent juxtaposition of the sentence in the order of judgment and sentence and argues that the intended sentence is a probationary term of five years with a condition that fifty-one weeks would be served in the county jail.

Therefore we remand for correction of the sentence.

COBB and SHARP, JJ., concur.


author: SHARP, Judge.

text:
    Milton L. BEARDEN, Appellant, v. Ed REVIS, d/b/a Ed Revis Wrecker Service, Appellee.
    No. 79-362.
    District Court of Appeal of Florida, Fifth District.
    Oct. 15, 1980.
    Agustín R. Benitez, Tavares, for appellant.
    Richard L. Langley, Clermont, for appel-lee.
   SHARP, Judge.

The appellant, Milton L. Bearden, filed a replevin suit seeking the return of his truck from the appellee, Ed Revis, and damages for its wrongful detention. When Revis’ attorney, Langley, failed to file a responsive pleading within 20 days after service of process, Bearden obtained entry of a default judgment by the clerk. The court thereafter entered an order granting Bear-den the return of his truck, and setting a time for a hearing on the damages claim. Langley moved to set the default aside pursuant to Rule 1.500(d), alleging excusable neglect. After a hearing, the court set aside the default and allowed the appellee to file pleadings. The appellant appeals from this order.

The revised or “new” Appellate Rules have put the appellate courts out of the “default judgment business,” unless the order being appealed sets aside a final judgment entered after a default pursuant to Florida Rules of Civil Procedure 1.500(e) and 1.540(b). Yates v. Roller Skating Rinks, Inc., 379 So.2d 1333 (Fla. 5th DCA 1980). The order in this case did not set aside a final judgment. The appellant argues that this is a proper interlocutory appeal pursuant to Florida Rules of Appellate Procedure 9.130(a)(3)(C)(ii), because it determined the “right to immediate possession of property.” However, the order granting appellant possession of the truck continues unaffected by any action taken by the trial court, and appellant does not challenge the correctness of that order in this appeal.

We do not have jurisdiction in this ease. Therefore we dismiss the appeal sua sponte.

DISMISSED.

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

      . Fla.R.Civ.P. 1.500(a).


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

text:
    In the Interest of M. B., a child, Petitioner, v. Robert E. LEE, Circuit Judge, Respondent.
    No. 80-426.
    District Court of Appeal of Florida, Fifth District.
    Oct. 15, 1980.
    James B. Gibson, Public Defender, and Lyle R. Hitchens, Asst. Public Defender, Daytona Beach, for petitioner.
    No appearance for respondent.
   WRIT OF PROHIBITION

FRANK D. UPCHURCH, Jr., Judge.

Petitioner, a juvenile, seeks a writ of prohibition to prevent the circuit judge from proceeding with his trial; he contends that his right to a speedy trial as provided in Rule 8.180, Florida Rules of Juvenile Procedure, has been violated. When the speedy trial rule has been violated, a writ of prohibition is proper. Sibert v. Hare, 276 So.2d 523 (Fla. 4th DCA 1973).

The pertinent dates and facts are:

1. December 13,1979:
2. March 10,1980:
3. March 10,1980:
4. April 7,1980:
5. April 9,1980:
Petitioner arrested.
Trial scheduled within the 90 day requirement. Petitioner indicates he is ready to proceed without an attorney.
An application for and an order appointing the public defender.
Motion for dismissal.
Order denying dismissal.

Petitioner alleges that the hearing was continued because of the illness of the judge; however, this is not reflected in the record. The court minutes recite that petitioner appeared on March 10,1980 and stated that he was ready for trial. Following that, petitioner made an application for the appointment of the Public Defender and one was appointed. The application for and order appointing the Public Defender are in the record. No order resetting the trial date and no waiver by defendant of the speedy trial rule appear.

Even if we could assume that petitioner orally moved to continue the hearing to enable him to consult the Public Defender, the judge did not comply with rule 8.180(c) as he failed to enter an order reciting the reasons for the extension.

The only other documents appearing in the record were a motion to dismiss filed on April 7, 1980 and an order denying the dismissal on April 9, 1980.

No response to the petition has been filed on behalf of the trial court; therefore, this court must assume the record before it is complete.

There being no order of extension as required by the rule and no waiver of the 90-day period by petitioner, the entry of the order denying the dismissal was error.

Writ of prohibition is issued and the trial court is directed to discharge petitioner.

SHARP, J., concurs.

ORFINGER, J., concurs specially with opinion.

ORFINGER, Judge,

concurring specially:

I concur with the decision, but only because the record before us does not show an order of the trial court granting a continuance or extending the time for speedy trial or reciting the time for extension, or finding that the “interest of justice will be served by such an extension.” In the state of the record before us, we are left to speculate if the adjudicatory hearing was continued because on the date set for the hearing, which was within the 90-day limit, the juvenile requested and was granted the appointment of a public defender. However, we could just as well speculate that since the trial was continued, the public defender was requested and appointed. We recognize the tremendous burdens on the trial courts, but because the Supreme Court in adopting the Rules of Juvenile Procedure specifically requires an order of court extending speedy trial and reciting the reasons, we must expect the trial courts to comply. Here, if in fact the trial was continued because the juvenile changed his mind about representing himself and requested counsel, a valid reason for continuance and extension of speedy trial, a brief order would have satisfied the rule. See In the Interest of R.L.P. v. Korda, 380 So.2d 1329 (Fla. 4th DCA 1980); In the Interest of J.R.S. v. Hastings, 374 So.2d 559 (Fla. 4th DCA 1979).

      . Florida Rules of Juvenile Procedure 8.180. Speedy Trial.
      (a) Every case in which a petition has been filed alleging a child to be delinquent, ungovernable or dependent shall be brought to an adjudicatory hearing without demand within ninety (90) days of the earliest of the following dates:
      (1) The date the complaint is filed with the intake officer as provided by statute.

        (2) The date the child was taken into custody-
      (3) The date the petition was filed.
      (b) If the adjudicatory hearing is not begun within ninety (90) days or an extension thereof as hereinafter provided the petition shall be dismissed with prejudice.
      (c) The court may extend the period of time established by this order on motion of any party, after hearing, on a finding that the interest of justice will be served by such extension. The order will recite the reasons for such extension. The general congestion of the court’s docket, lack of diligent preparation, or failure to obtain available witnesses, or other avoidable or foreseeable delays shall not constitute grounds for such extension.
      (d)Effect of Mistrial; Order of New Trial. A person who is to be tried again shall be brought to trial within ninety (90) days from the date of declaration of a mistrial by the trial court, the date of an order by the trial court, granting a new trial, the date of an order by the trial court granting a motion to vacate a judgment, or the date of receipt by the trial court of a mandate, order, or notice of whatever form from an appellate or other reviewing court which makes possible a new trial, whichever is last in time.


text:
    Joseph Lee EVANS, Appellant, v. STATE of Florida, Appellee.
    No. 80-1108.
    District Court of Appeal of Florida, Fifth District.
    Oct. 15, 1980.
    Joseph Lee Evans, pro se.
    No appearance for appellee.
   COBB, Judge.

This is an appeal from a summary denial of a Rule 3.850, Florida Rules of Criminal Procedure motion for post-conviction relief on the grounds that the 3.850 motion did not comply with the model form. Contrary to the requirements of Rule 3.850, the motion did not state whether there was an appeal from the judgment or sentence and the disposition thereof, nor did the motion state whether a previous post-conviction motion had been filed and, if so, how many. The order appealed is affirmed without prejudice to defendant’s filing a sufficient motion providing the required information raising the same substantive issues. See Catlett v. State, 367 So.2d 735 (Fla. 4th DCA 1979); Scott v. State, 364 So.2d 67 (Fla. 4th DCA 1978).

AFFIRMED.

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

      . Rule 9.140(g), Fla.R.App.P.

      . The rules provide a complete fill-in-the-blanks form to assist prisoners in preparing 3.850 motions.


author: ORFINGER, Judge.

text:
    OCALA STAR BANNER CORPORATION; and Sentinel Star Company, Petitioners, v. The Honorable Wallace E. STURGIS, Raymond Ellis Taylor; and The State of Florida, Respondents.
    No. 80-1075.
    District Court of Appeal of Florida, Fifth District.
    Oct. 15, 1980.
    Sanford L. Bohrer and Richard L. Ovel-men, of Paul & Thomson, Miami, for petitioners.
    William G. Mateer and David L. Evans, of Mateer, Harbert, Bechtel & Phalin, P. A., Orlando, for petitioner Sentinel Star Co.

      Gregory E. Tucci, of Walkup, Berk & Tucci, Ocala, for respondent Taylor.
    Jim Smith, Atty. Gen., Tallahassee, and Evelyn D. Golden, Asst. Atty. Gen., Dayto-na Beach, for respondents.
   ORFINGER, Judge.

Respondent Taylor, approximately six weeks before the commencement of his trial in Marion County on a charge of first degree murder, filed a motion in the trial court to control pre-trial publicity. The motion alleged, in substance, that respondent was charged with the murder of a prominent citizen of Levy County, Florida and the aggravated battery of another prominent citizen of that same county; that subsequent to respondent’s arrest, eighteen news articles had appeared in the Ocala Star Banner, copies of which were attached, and in addition, other newspapers serving Marion County had also carried newspaper accounts of pre-trial activity in this case. It alleged that Marion County had a relatively small population, that the newspapers had large circulations, and that the effect of these articles had been to saturate the community with such unfavorable publicity as to potentially deprive the defendant of the opportunity of receiving a fair trial in Marion County. He therefore requested that all further proceedings be held in camera, rather than in open court. The motion was served upon the State Attorney’s Office, but was not served on any member of the news media. By an amendment to the motion, served in the same fashion, respondent Taylor also requested the sealing of the court file.

The case was set for trial September 22, 1980. On August 22, 1980, a hearing was held before the trial court on respondent’s motion to close the proceedings. The record reflects that the State and the defendant were represented by counsel and that “also present at the hearing was Mr. Phil Bond, a local newspaper reporter.” The record reflects discussion between defense counsel and the court, but there was no evidence or testimony presented. The State neither consented to nor opposed the motion.

At the conclusion of the hearing, the court entered an order, without any eviden-tiary basis, finding among other things that there had been widespread publicity in numerous newspapers circulated in Marion County; “that the effect of such publicity, if continued unrestrained, would likely cause bias and prejudice in the minds of prospective jurors who have been exposed to alleged facts and circumstances reported thereby, and would result in the disqualification of such prospective jurors because of formulated opinions or knowledge of such alleged facts and circumstances to the extent that they would have predetermined opinions as to the guilt or innocence of the defendant or knowledge of evidence which may or may not be presented at trial bearing upon the issue.”

He further found, without an evidentiary basis, that continued availability of the public and press to the court files, discovery depositions and hearings before the court upon evidentiary matters constitutes an immediate threat to the administration of justice; that no less restrictive alternative measures were available to prevent pre-trial publicity and that the sealing of the court records, including depositions and other matters incident to pre-trial preparation, will achieve the court’s purpose of avoiding the dissemination of information available to the jury venire that would substantially affect the selection of a fair and impartial jury.

Based upon the above findings, the court entered an order, which in substance closed the entire case and sealed the court file. It should be noted that apparently the State had perpetuated the testimony of certain witnesses and had video taped the proceedings, and the video tapes were also sealed along with the court file. The order set a further hearing for August 27, 1980, at which time any member of the public or news media would have opportunity to show why the order should not remain in force and effect.

Both petitioners herein filed individual motions to set aside the order, and after hearing from the petitioners at the appointed time, the trial court entered a second order on August 29, 1980 denying the motions to vacate or modify and leaving the first order in full force and effect. On September 12, 1980, petitioners filed a motion pursuant to Rule 9.110(d), Florida Rules of Appellate Procedure, requesting that we review the closure orders, and further asking us to stay proceedings in the criminal trial pending our determination.

Because the petition was filed so close to the time of trial, we requested immediate responses from the respondents, and we set the matter for oral argument on September 19, 1980. At that hearing, the petitioners conceded that these proceedings should not interfere with the respondent Taylor’s right to a speedy trial and they withdrew their request for a stay.

Although the trial of this cause has already commenced so that it might be said that these issues are moot, nevertheless we have retained jurisdiction because the underlying dispute is one capable of repetition, yet evading review. Nebraska Press Association v. Stuart, 427 U.S. 539, 96 S.Ct. 2791, 49 L.Ed.2d 683 (1976).

Much has already been written about the clash between an accused’s Sixth Amendment rights to a fair trial and the First Amendment rights of the press to report criminal proceedings, and much of what has been written seems to confuse the issue, rather than to clarify it. Much of the confusion revolves about the apparent differences between prior restraint cases such as Nebraska Press, and cases denying access to hearings or files, such as the case sub judi-ce, and the uncertainty as to the application of the rules enunciated in the one type of case to the other.

What our Supreme Court said in State ex rel. Miami Herald Publishing Co. v. McIntosh, 340 So.2d 904 (Fla.1977) is applicable here, although McIntosh was a prior restraint case.

While a court is legitimately concerned with preventing prejudicial publicity from poisoning the impartial atmosphere essential to a fair trial, the court’s action in restricting the media must relate to the danger sought to be avoided and it must not be unconstitutionally overbroad. Id. at 908.

We believe the order entered here, without any evidentiary basis, is overbroad, particularly as it applies in advance to court hearings, since there was no attempt made to distinguish between different types of hearings and it was not shown that access of the press (and consequently the public) to every pre-trial hearing would necessarily deprive the defendant of a fair trial. In a criminal proceeding, it is not the province of the court to control publicity as such, but only to control prejudicial publicity such as will deny a defendant his right to a fair trial. Therefore, if denial of access is proper, there must be some selectivity.

What test does the trial court apply to determine which proceedings should be closed to avoid such prejudicial publicity as will taint the public mind and deprive defendant of the opportunity to select an impartial jury?

In McIntosh, the Supreme Court held that to justify a prior restraint order, the activity restrained must constitute an immediate threat to the administration of justice and such order would not be upheld unless no reasonable alternatives are available. Although specifically addressing the issue of prior restraint, the Supreme Court did discuss the issue of access of the press to judicial proceedings when it said that

.. . the public and press have a right to know what goes on in a courtroom whether the proceeding be criminal or civil. A member of the press or newspaper corporation may be properly considered as a representative of the public insofar as enforcement of public right of access to the court is concerned; and the public and press have a fundamental right of access to all judicial proceedings. In determining restrictions to be placed upon access to judicial proceedings, the court must balance the rights and interest of the parties to litigation with those of the public and press. Id. at 908. (Emphasis supplied).

The district courts which have addressed the access or closure issues have adopted the McIntosh test, now referred to as a three-prong test, and have held that closure orders cannot be entered absent a showing that: (1) Closure is necessary to prevent a serious and imminent threat to the administration of justice, (2) that no less restrictive alternative is available, and (3) that closure will in fact achieve the court’s purpose. Miami Herald Publishing Company v. State, 363 So.2d 603 (Fla. 4th DCA 1978.)

Petitioners take the position that we rejected the 3-part test as applied to closure orders in Sentinel Star Company v. Edwards, 387 So.2d 367 (Fla. 5th DCA 1980), but a careful review of that opinion does not justify that assertion. Edwards was a civil case, not a criminal case, and dealt with possible misconduct in jury deliberations which in and of themselves are closed proceedings. In Edwards, we did not reject the three-prong test of Booth, but pointed out that:

The Booth case, attempting to follow McIntosh and Nebraska Press erroneously applied a “three-prong” prior restraint analysis to a situation wherein a court file was sealed .... Insofar as the “three-prong” test referred to in Booth is applicable to prior restraint cases, it is not affected by Gannett.

We have before us now a criminal case where it is alleged that the First Amendment rights of the press clash with the Sixth Amendment rights of the defendant to a fair trial by an impartial jury, and so we must reconcile those rights in a context not present in Edwards.

It is well settled in this state that a trial court in the exercise of its inherent power to control the conduct of its own proceedings, may exclude the public and the press from its proceedings, although that power should be exercised cautiously and in the exercise of sound judicial discretion. Miami Herald Publishing Company v. State, 363 So.2d 603 (Fla. 4th DCA 1978); News Press Publishing Company v. State, 345 So.2d 865 (Fla.2d DCA 1977). However, trial courts need to have uniform standards against which this judicial discretion may be measured, so that to the extent possible, similar situations will produce similar results. The other district courts which have considered the issue have applied the three-prong test to denial of access cases, and although as pointed out in Edwards, this test was spawned in prior restraint cases, it appears to be a reasonable test to apply to access cases as well.

Prior restraint orders are acknowledged censorship orders. The press is permitted to gather the information, but is not allowed to print it. Limitation of access is likewise a form of censorship because the press is denied the right to gather the news, thus unable to print it. Although there is a distinction between the two types of orders, it appears to us to be a distinction without a difference. Under either order, the information is kept from the public and censorship results. Under these circumstances, we see no reason to adopt a different type of test in access cases. Here, the trial court made the findings, but we see nothing in the record to support these findings.

We must insert a caveat. Our system of justice cannot accommodate a clash between an irresistable force and an immovable object. Where two constitutional rights clash, as they do here,

... the trial judge walks a tight wire in resolving the constitutional conflict. The right of the news media and the public to know all that transpires in a criminal case (beyond their unchallenged right to observe all proceedings in open court) must be carefully weighed against the defendant's right to a fair trial, but the defendant’s right to a fair trial should be given paramount consideration. This should be with the realization, of course, that denial of access by the press to all or part of the criminal case file is not forever and should be terminated when the necessity for such denial has ceased to exist.

State ex rel. Tallahassee Democrat v. Cooksey, Fla.App., 371 So.2d 207 at 209.

These questions remain: (1) whether the right of access to judicial proceedings includes the right of the press to attend the taking of either a discovery deposition under Florida Rules of Criminal Procedure 3.220(d) or a deposition taken to perpetuate testimony under 3.190(j), and (2) after such deposition is taken and transcribed does the press have access to the transcript of such testimony or to the video tapes if there are such.

In Tallahassee Democrat, Inc., v. Willis, 370 So.2d 867 (Fla. lst.DCA 1979), the court held that a deposition was “published” when the transcript thereof was filed with the clerk, and that it was thereupon open for public inspection unless the court entered a protective order under Florida Rules of Civil Procedure 1.280(c) requiring the deposition to be sealed. As further pointed out there, the taking of a deposition itself can hardly be categorized as a “judicial proceeding” for the simple reason that no judge is present, and no rulings or adjudications of any sort are made by judicial authority. Additionally, Rule 1.280(c) gives the court the power to determine “... (5) that discovery be conducted with no one present except persons designated by the court.”

We therefore conclude that the press does not have the absolute right to attend the taking of a deposition, that its presence may be regulated by the court under Rule 1.280(c), but that once the deposition is taken, transcribed and filed in the court file, there is a right of access to it unless a protective order is entered by the court under the said rule.

During the hearing held in this case, the trial judge remarked that he was concerned about the safety of the witnesses whose testimony had been taken, and for that reason was sealing their depositions. A showing that the opening óf a deposition might endanger a person’s life could well justify the order below, News Press Publishing Company, Inc., v. State, supra, but we are not persuaded that the trial court was aware of the contents of the depositions when he sealed them. Instead, he seemed more concerned about the disclosure of the identity of the witnesses, and this concern might or might not be a proper basis for closure.

.. . There must be compelling reasons before some or all of the records of a court proceeding may be sealed. Moreover, these reasons should be specifically set forth by the sealing authority in order that the legality thereof can be reviewed. The basis for closing the records can be sufficiently stated without divulging the information sought to be protected. If the reasons given for sealing the records are deemed to be facially sufficient but their application to the records under consideration is questioned, the reviewing court may always exercise an in camera inspection of the records to see if the reasons given by the sealing authority are borne out.

News-Press, at 867.

Because of the importance of the questions raised here and their obviously recurring nature, we hereby certify to the Supreme Court of Florida the following questions arising from the order of the trial court and this opinion, which we believe require immediate resolution by that court and which are of great public importance and have a great effect on the proper administration of justice:

(1) Is the three-prong test espoused in Miami Herald Publishing Company v. State, 363 So.2d 603 (Fla. 4th DCA 1978) and Sentinel Star Company v. Booth, 372 So.2d 100 (Fla.2d DCA 1979) properly applied to an order denying access to pre-trial criminal proceedings as opposed to a “gag” or prior restraint order?

(2) In a criminal case, does the media have a First Amendment right to attend the taking of either a discovery deposition or a deposition taken to perpetuate testimony, or otherwise have access to such proceedings prior to the filing of a transcript of such testimony with the Clerk of the Court?

In entering the order below, the trial court did not address the individual depositions or proceedings, but instead entered a blanket order which we have held to be overbroad. We therefore quash the order and remand the cause. Further closure orders should address a specific proceeding or deposition and should state with particularity the reasons for compelling closure. Sentinel Star Company v. Booth, supra.

Order QUASHED; cause REMANDED.

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

      . In reviewing this order we assume, for the purpose of this discussion, that the court did not intend to seal the trial, although the order did not so specify, but provided that it would remain in force and effect until further modification by written order of the court.

      . Although not specifically so holding, the import of the decision in Richmond Newspapers, Inc. v. Virginia, ___ U.S. ___, 100 S.Ct. 2814, 65 L.Ed.2d 973 (1980), seems to be that there is a First Amendment right of access to pre-trial criminal proceedings, as well as to the criminal trial itself. Gannett Co., Inc. v. DePasquale, 443 U.S. 368, 99 S.Ct. 2898, 61 L.Ed.2d 608 (1979) had avoided a ruling based on first amendment rights.

      . The same rule was followed in State ex rel. Pensacola News Journal v. Fleet, 388 So.2d 1106, (Fla. 1st DCA 1980); Sentinel Star Company v. Booth, 372 So.2d 100 (Fla.2d DCA 1979). Although not addressing the specific issue, a similar result was reached in Miami Herald Publishing Company v. Collazo, 329 So.2d 333 (Fla.3d DCA 1976), cert. den. 342 So.2d 1100 (Fla.1976), a civil case. Other states have adopted the same rule in closure cases, e.g., State of New Jersey v. Hannah, 171 N.J.Super. 325, 408 A.2d 1349 (Sup.Ct. of N.J., App.Div.1979), where the court also overturned an overbroad order, commenting that “.. . there are surely many pre-trial proceedings which could be conducted in open court without harm to the defendant’s right to a fair trial.”

      . The Sixth Amendment to the U.S. Constitution applies to criminal cases.
      “In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed ....”

      . See also, Miami Herald Publishing Co. v. State, supra.

      . See also, State ex rel. Miami Publishing Company v. McIntosh, supra, at 909.


author: McCORD, Judge.

text:
    SPECIAL DISABILITY TRUST FUND of the State of Florida, Department of Labor and Employment Security, Appellant, v. CITY OF HIALEAH and Westchester Fire Insurance Company, Appellees.
    No. QQ-245.
    District Court of Appeal of Florida, First District.
    Oct. 17, 1980.

      Judith Curtin Fendrich, Tallahassee, for appellant.
    John F. McMath of Wicker, Smith, Blomqvist, Davant, McMath, Tutan & O’Hara, Miami, for appellees.
   McCORD, Judge.

Appellant, Special Disability Trust Fund of the State of Florida, appeals from a workers’ compensation ruling that the Special Disability Trust Fund is liable pursuant to § 440.49, Florida Statutes, for reimbursement to the employer/carrier, appellee, for a claimant’s injuries. The evidence is inadequate to establish that the employer had reached an informed conclusion prior to the occurrence of the subsequent injury that claimant’s pre-existing physical condition was permanent and was, or was likely to be, a hindrance or obstacle to employment, as required by § 440.49(4)(f)l for recovery under the Special Disability Trust Fund. Therefore, we reverse.

In September 1974, the claimant sustained injuries when he inhaled chlorine gas while on duty as a sergeant with the Hialeah Police Department. Upon his return to work, the police chief assigned him to indoor work at the jail instead of his usual outdoor work. The personnel supervisor at the police department, Miss Burgin, who had no authority to hire or fire claimant, testified that after the 1974 accident, she observed that the claimant had emotional problems. She testified that she had discussed his emotional problems with the police chief and that she felt the chief’s decision to assign claimant to indoor work was a direct result of the information she gave him regarding the claimant’s emotional problems. She was unaware of any medical reports recommending that claimant be given inside work, and she was unaware that the police chief had received any medical reports concerning the claimant’s condition.

In February 1975, the claimant inhaled smoke as a result of a mattress fire in the jail where he was working and sustained temporary physical injuries again. He returned to work for about five months but was placed on long-term disability leave in September 1975 because he could not tolerate his work. He had begun to see a psychiatrist after his first accident and was found to have a permanent psychological disability which became progressively worse after the second accident, according to testimony of his psychiatrist.

Appellant raises several points on appeal, asserting that the evidence does not support a finding that the facts of this case meet the criteria for employer/carrier to be reimbursed by the Special Disability Trust Fund pursuant to § 440.49, Florida Statutes. In one point, appellant contends that the employer did not have knowledge that, prior to the second injury, claimant was suffering from a permanent physical impairment which was likely to be a hindrance to his employment. We agree. The only evidence of employer knowledge of any impairment is Miss Burgin’s testimony that she had noticed the claimant’s emotional problem and had related her observances of claimant’s behavior to the police chief. According to Allen United Enterprises v. Special Disability Trust Fund, 288 So.2d 204 (Fla.1974), and § 440.40(4)(f)l, to receive reimbursement from the Special Disability Trust Fund for a subsequent injury to an employee, the employer must have had knowledge prior to the subsequent accident that the employee had a pre-existing “permanent physical impairment.” (Emphasis supplied.) See also Special Disability Trust Fund v. Drive-In Cameras, Inc., IRC Order 2-2841 (1975). Thus, even if Miss Burgin’s questionable awareness of the claimant’s psychiatric condition could be imputed to the employer in this case, there is no evidence that Miss Burgin or the employer were aware that the claimant’s emotional malfunctions constituted a permanent physical impairment. Consequently, the criteria for Reimbursement have not been adequately met under the circumstances of this case and employer/carrier is not entitled to reimbursement. Therefore, we reverse.

Appellant’s remaining points are rendered moot by this decision.

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


author: PER CURIAM.

text:
    CITY OF VERO BEACH and Royal Globe Insurance Company, Appellants. v. Ernest THOMAS, Appellee.
    No. QQ-294.
    District Court of Appeal of Florida, First District.
    Oct. 17, 1980.

      Bradford L. Jefferson, of Brennan, Me-Aliley, Hayskar & McAliley, Fort Pierce, for appellants.
    Irvin A. Meyers and Gary J. Boynton of Meyers, Mooney & Adler, Orlando, for ap-pellee.
   PER CURIAM.

The employer/carrier appeal an order in a worker’s compensation case which modified, on grounds of mistake, a prior order fixing claimant’s average weekly wage at $162.50 as stipulated by the parties. The order appealed found claimant’s average weekly wage to be $239.87, based upon claimant’s evidence that he failed to advise his attorney, at the time of stipulation, that he had additional income from part-time employment which could have been added to his regular employment benefits in computing his average weekly wage. Claimant further established that he was unaware that part-time earnings could be considered, and that his attorney had no knowledge of his part-time employment until some three years after the date of the stipulation.

We reverse the order of modification because it is based upon an erroneous interpretation or application of Section 440.28, Florida Statutes (1975), which provides:

Upon a judge’s own initiative or upon the application of any party in interest, on the ground of a change of condition or because of a mistake in the determination of a fact the judge of industrial claims may ... review a compensation case in accordance with the procedure prescribed in respect of claims in s. 440.25 and in accordance with such section, issue a new compensation order which may terminate, continue, reinstate, increase or decrease such compensation, or award compensation ....

The statute permits a modification based upon “a mistake in the determination of a fact.” Here we have no such mistake but merely a failure on the part of the claimant to present evidence which could have been considered in determining a fact, namely, his average weekly wage. The statute contemplates corrections based upon a mistake made by the judge of industrial claims, not by one of the parties or their counsel. Pow er v. Joseph G. Moretti, Inc., 120 So.2d 443 (Fla.1960); Scotty’s Carpet Service v. McGriff, IRC Order 2-3155 (May 16, 1977); and Amway Corporation v. Yerby, IRC Order 2-3319 (January 16, 1978). The rule is not altered by the circumstance that the initial fact was determined based upon a stipulation of the party. A stipulation should neither be ignored, nor should it be set aside in the absence of fraud, overreaching, misrepresentation, a withholding of facts by the adversary party, or some such element as would render the agreement void. Steele v. A. D. H. Building Contractors, Inc., 174 So.2d 16 (Fla.1965). Relief by way of modification for mistake cannot be granted merely because different facts presented to the judge might have produced a different result. Amway, supra. Here it was error to hold that the claimant’s unilateral mistake authorized a redetermination of his average weekly wage.

As for the judge’s finding that the modification was not prejudicial to the employer/carrier because it had only'the effect of providing a higher average weekly wage for purposes of offset under Section 440.-15(10)(a), Florida Statutes, and that the same result could be accomplished by the claimant’s invocation of -the protective provisions of 42 U.S.C. § 424a and 20 C.F.R. § 404, we hold that such a determination is premature. Our reversal is therefore without prejudice to further proceedings when and if the effect of the federal code and regulations becomes a matter ripe for adjudication.

REVERSED.

ROBERT P. SMITH, Jr., LARRY G. SMITH and WENTWORTH, JJ„ concur.

      . The judge found no immediate benefit to the claimant because his social security benefits had been temporarily suspended.

      . Under the offset statute (Section 440.-15(10)(a), Florida Statutes), the injured worker’s benefits cannot be reduced to a greater extent than they would have been reduced under 42 U.S.C. § 424a, which provides that the basis for the offset shall be average current earnings, defined (20 C.F.R. § 404) as the higher of (a) the average monthly earnings used for computing his primary insurance amount for social security purposes, or (b) the average monthly earnings from covered employment and self-employment during his highest five consecutive years after 1950.


text:
    CITY OF WINTER PARK and Iowa National Mutual Insurance Company, Appellants, v. William BOWEN, Appellee.
    No. QQ-410.
    District Court of Appeal of Florida, First District.
    Oct. 17, 1980.

      Bernard J. Zimmerman, of Akerman, Senterfitt & Eidson, Orlando, for appellants.
    Edward H. Hurt and Donna L. Bergh, Orlando, for appellee.
   PER CURIAM.

We affirm the order of the judge of industrial claims finding the claimant-ap-pellee permanently and totally disabled, and awarding attorney’s fees to claimant’s attorney.

In May, 1976, appellee suffered an industrial accident when he was attacked by a co-worker with a ballpeen hammer, sustaining injuries to his face, chest, low back and stomach. He was seen by a succession of doctors including orthopedists, psychiatrists, and a chiropractor. Based upon the medical and psychiatric evidence, and the testimony of a certified vocational expert, the judge of industrial claims found the claimant to be permanently and totally disabled. We find no error in this award. When there has been a physical accident or trauma and the claimant’s disability is increased or prolonged by traumatic neurosis or hysterical paralysis, the full disability including the effects of the neurosis is com-pensable. IB Larson’s Workmen’s Compensation Law § 42.22 (1952), Superior Mill Work v. Gabel, 89 So.2d 794 (Fla.1956). We find that the factors stated in Walker v. Electronic Products and Engineering Company, 248 So.2d 161 (Fla.1971), were fully considered and that the award of permanent total disability is supported by competent substantial evidence.

Appellants contend, however, that even if the award of permanent total dis-

ability is sustained, the order contains error in that it provides for permanent total disability benefits from the date of the accident, without consideration of the date of maximum medical improvement. We agree this was error. See Saga Food Services, Inc. v. Piscopo, IRC Order 2-2934 (March 12, 1976); City of Miami v. Wright, 380 So.2d 555 (Fla. 1st DCA 1980). Here there was evidence of curative treatment and an obvious period of recuperation during which the claimant was either totally or partially disabled. We therefore remand for the purpose of allowing the deputy commissioner to determine the date of maximum medical improvement, and to modify his order with respect to the commencement of payment of permanent total disability benefits.

The order is affirmed in part, reversed in part.

ROBERT P. SMITH, Jr., LARRY G. SMITH and WENTWORTH, JJ., concur.


author: JOANOS, Judge.

text:
    Edward HOGAN, Appellant, v. STATE of Florida, Appellee.
    No. UU-55.
    District Court of Appeal of Florida, First District.
    Oct. 17, 1980.

      Edward Hogan, in pro per.
    No appearance for appellee.
   JOANOS, Judge.

Appellant appeals from the trial judge’s summary denial of a motion for post-conviction relief. Several grounds were asserted in appellant’s motion. First, appellant asserted that he was denied effective assistance of counsel because his public defender failed to appeal within the requisite time. Appellant also contended that his sentence was improper because it required his term to be spent “in hard labor” and because he was given credit for only 277 of 321 days spent in county jail prior to sentencing. The lower court denied the motion without an evidentiary hearing. As rationale for the decision, the court stated that a motion on the same grounds had already been filed with the court and denied.

Although a copy of the prior motion was not attached to the lower court’s order as required by Rule 3.850 of the Florida Rules of Criminal Procedure, on request by this court the lower court forwarded a copy of the prior order with an attached affidavit. A review of the earlier order and affidavit shows that appellant has already sought relief based upon an allegation of ineffective assistance of counsel. As to this portion of appellant’s motion, the lower court is affirmed.

With regard to appellant’s claim that he was improperly sentenced, the prior order does not indicate if appellant made such an allegation in his earlier motion. We cannot make a determination on whether the improper sentencing claims were stated in a previous motion without actually reading that earlier motion. Since it was not attached to the order, we must remand to the trial court with instructions to amend the order appealed from by attaching a copy of appellant’s prior motion to it or by attaching portions of the files and records which will satisfy Rule 3.850.

AFFIRMED, in part. REMANDED, in part, with instructions to attach portions of the files and records which conclusively show that appellant is not entitled to relief.

WENTWORTH, J., and WOODIE A. LILES, (Ret.), Associate Judge, concur.


author: DANAHY, Judge.

text:
    Gail Bott HAGENS, Appellant, v. Gary Thomas HILSTON and Pamela Jean Hilston, his wife, Thomas Kendall and Allstate Insurance Company, Appellees.
    No. 79-602.
    District Court of Appeal of Florida, Second District.
    Oct. 22, 1980.

      James C. Hadaway and Mark E. Hungate of Fowler, White, Gillen, Boggs, Villareal & Banker, St. Petersburg, for appellant.
    James 0. Davis and William F. Blews, St. Petersburg, for appellees Gary and Pamela Jean Hilston.
    C. Wade Yeakle, III, and David J. Abbey, St. Petersburg, for appellees Thomas Kendall and Allstate Ins. Co.
   DANAHY, Judge.

This appeal arises out of a negligence action in which the appellees, a husband and wife, were awarded damages for injuries the husband suffered in an automobile accident. The husband sued appellant for damages based on medical expenses and pain and suffering sustained as a result of his injuries. His wife joined in the action with a derivative claim only for loss of consortium. The jury returned a verdict of $15,000 for the husband but returned a verdict of zero damages for the wife. In this appeal appellant challenges the trial court’s post-trial order which: (1) granted the husband a new trial on the issue of damages, and (2) awarded the wife a new trial on her claim for loss of consortium. We reverse both aspects of the order.

We first address the order as it pertains to the husband. The trial court granted a new trial for the husband on the issue of damages notwithstanding its finding that his motion for a new trial, standing alone, was without merit. The decision to grant him a new trial was based on the court’s belief that the husband’s award was inconsistent with his wife’s zero verdict where the two claims were so closely intertwined and aligned that it was impossible to determine which elements were accepted and which were rejected.

In an action for injuries to one spouse joined with a derivative action for loss of consortium, certain elements of the aggregate damages to the parties could be awarded by the jury to either claimant. Therefore, it is frequently impossible to ascertain from a jury verdict which elements of damage were included in each party’s award. If a new trial is awarded to one party, in such an action, a risk of awarding double damages is created because it is impossible to assure that elements of damage included in the other’s verdict are not re-awarded in the second trial. To avoid the risk of assessing double damages, where a new trial is required for either party, a new trial must be ordered for both parties. Coppola v. Ballard, 314 So.2d 6 (Fla. 4th DCA 1975); McNash v. Oxenhandler, 288 So.2d 304 (Fla. 4th DCA 1974).

Where the evidence presented by one spouse and relied upon by the jury as the basis for its award of damages clearly differs from the evidence presented by the other spouse on a claim for loss of consortium, a subsequent new trial for the former spouse will not involve evidence upon which the award to the latter spouse in the first trial was based. Therefore, there is no danger that the latter spouse’s damages will be included in the potential recovery by the former spouse in a new trial on the issue of damages. Accordingly, in such a case, there is no risk that a particular element of damage is susceptible of being awarded twice and a new trial for both spouses is not required. Webber v. Jordan, 366 So.2d 51 (Fla. 2d DCA 1979); Thieneman v. Cameron, 126 So.2d 170 (Fla. 3d DCA 1961).

In the case before us, the husband’s evidence consisted of medical testimony concerning the nature of his injury, the expenses he incurred in receiving treatment, his discomfort and present physical condition. His wife, on the other hand, testified that the husband’s injuries prevented them from engaging in the recreational activities they had formerly enjoyed together and that the marital relationship was disturbed to a significant degree because of his injuries. The evidence presented by the spouses clearly differed in nature. Accordingly, because it is clear the husband’s award did not include damages claimed by the wife, we find that portion of the trial court’s order granting him a new trial on the issue of damages was in error.

Next we address that part of the order which granted the wife a new trial. We do not agree that the facts of the case warrant a new trial for her. The order granting the wife’s motion for a new trial stated:

[T]he court feels that it is compelled to grant [the wife] a new trial on damages solely on the basis that the case law appears to require a new trial for a spouse who is awarded zero damage for loss of consortium where the injured spouse is awarded a verdict and there is some evidence of loss of consortium.

The test, however, for granting the spouse awarded zero damages a new trial is whether the record contained substantial, undisputed evidence of loss of consortium. Where substantial, undisputed evidence of loss of consortium exists, a zero verdict is inconsistent with an award for the injured spouse. Albritton v. State Farm Mutual Automobile Insurance Co., 382 So.2d 1267 (Fla. 2d DCA 1980); Webber v. Jordan, supra; Shaw v. Peterson, 376 So.2d 433 (Fla. 1st DCA 1979); Kinne v. Burgin, 311 So.2d 695 (Fla. 3d DCA 1975).

In the case at bar, while there is some evidence of the wife’s loss of consortium, the evidence is insubstantial and rebutted. At trial the wife testified that after the accident the parties’ marital relationship deteriorated. She admitted while testifying that the difficulties in their marriage were due in part to her “childish attitude” and behavior. In addition, Dr. Merin, a psychologist who had counseled both the husband and the wife, stated that in his discussions with the couple concerning their conflicts, he had noted immaturity oh the part of both and that their immaturity was in part responsible for their marital problems.

While the appellees did not offer any independent evidence rebutting the testimony of the wife and Dr. Merin concerning loss of consortium, the effective cross-examination of these witnesses and the wife’s own admissions raised doubt as to the validity of her claim. The jury could well have concluded that the parties’ marital difficulties and the wife’s inability to engage in recreational activities with her husband were due to the attitude of the parties and not due to the accident-associated problems of the husband. Therefore, because the record does not contain substantial, unre-butted evidence of the wife’s loss of consortium, the trial court was without authority to overturn the finding of the jury with respect to her claim.

Accordingly, the order granting the motion for new trial is reversed and the case is remanded with directions that the jury verdicts as to both appellees be reinstated and that judgment be entered thereon.

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


author: SCHEB, Chief Judge.

text:
    Dale Gene FRAME, Appellant, v. STATE of Florida, Appellee.
    No. 79-967.
    District Court of Appeal of Florida, Second District.
    Oct. 22, 1980.

      Jack 0. Johnson, Public Defender, Bar-tow, and Judith L. James, Asst. Public Defender, Tampa, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Peggy A. Quince, Asst. Atty. Gen., Tampa, for appellee.
   SCHEB, Chief Judge.

The state charged Dale Gene Frame with possession of burglary tools, grand theft of a firearm, and dealing in stolen property, specifically some Klaus tools, among other offenses. Frame moved to suppress the alleged burglary tools, the firearm, and the Klaus tools. When the trial court denied his motions, Frame pled nolo contendere in each case reserving his right to appeal. The court adjudicated Frame guilty and sentenced him to two years on each charge to be served consecutively. Frame appeals contending that the court erred in denying his motions to suppress.

The alleged burglary tools were a slide hammer and bolt cutters. The state presented no evidence that these were not “innocent items” and, therefore, it had to show not only possession, but use or attempted use of them as burglary tools. Preston v. State, 373 So.2d 451 (Fla.2d DCA 1979); see State v. Thomas, 362 So.2d 1348 (Fla.1978). The state, however, failed to demonstrate this. Consequently, the trial court erred in denying Frame’s motion to suppress the tools.

The trial judge refused to suppress the firearm on the ground that firearms are contraband per se. The trial judge was incorrect, however, since firearms are not contraband per se. Porter v. State, 363 So.2d 41 (Fla.2d DCA 1978). The state now attempts to sustain the denial of Frame’s motion because Frame was a felon possessing a firearm in violation of section 790.23, Florida Statutes (1979). Nevertheless, the state introduced no evidence showing that the officers who seized the firearm knew that Frame was a felon. Consequently, the trial court erred in denying Frame’s motion to suppress the firearm.

Finally, Frame contends that the trial court should have suppressed the Klaus tools. Since the state had charged Frame with dealing in stolen property, it had to establish that the police who seized the tools had probable cause to believe that they were stolen. Ludwig v. State, 215 So.2d 898 (Fla.3d DCA 1968), cert. denied, 396 U.S. 927, 90 S.Ct. 261, 24 L.Ed.2d 225 (1970). At the hearing on the motion to suppress the tools, Frame’s counsel stipulated that the proof as to the tools would be the same as that presented in an earlier hearing on Frame’s motions to suppress other items seized when the tools were seized. That evidence indicated that the officers had probable cause to believe the other items were stolen. In view of the stipulation, the trial court properly denied Frame’s motion to suppress the tools.

We find no merit to the other points Frame raises.

Accordingly, we vacate the sentence and convictions for possession of burglary tools and grand theft of a firearm; otherwise, we affirm. We remand for further proceedings consistent with this opinion.

GRIMES and OTT, JJ., concur.


author: RYDER, Judge.

text:
    ONE 1978 LINCOLN VERSAILLES, GEORGIA LICENSE MZR 349, VIN 8W84G804437, a Motor Vehicle and Warren Dean Musselwhite, and Musselwhite Motors, Appellant, v. STATE of Florida, Appellee.
    No. 80-67.
    District Court of Appeal of Florida, Second District.
    Oct. 22, 1980.

      Michael H.. Hatfield, Umatilla, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Peggy A. Quince, Asst. Atty. Gen., Tampa, for appellee.
   RYDER, Judge.

The appellant challenges the trial court’s order forfeiting his motor vehicle pursuant to Section 943.42, Florida Statutes (1979), which makes unlawful the use of any vehicle to facilitate the transportation, carriage, conveyance, concealment, receipt, possession, purchase, sale, borrow, exchange or giving away of any contraband article. ' Since there was no nexus between the contraband found in the vehicle and the illegal drug operation, we find the forfeiture was improper and reverse.

On May 5,1979, Ms. Hillmeyer, a member of a surveillance team conducting an investigation for the state attorney’s office, was told, based on information received from the Hendry County Sheriff’s Department, to be on the lookout for a 1978 or 1979 Ford pick-up camper/truck believed to be transporting contraband. She testified that the team observed the described truck and several other vehicles leave a residence in Alva, Florida and travel to Bonita Springs.

The next day in Bonita Springs, the investigators observed the same group of cars parked at a residence at Hickory Boulevard. These cars proceeded from the residence at Hickory Boulevard to a residence at McLaughlin Boulevard. These vehicles were stopped, searched and found to contain a large quantity of marijuana.

During the observation of the group of vehicles in Bonita Springs, the investigators for the first time saw the 1978 Lincoln Versailles which is the subject matter of this appeal. They observed the vehicle proceed to the residence at McLaughlin Boulevard and, when the officers came to search the residence, the Lincoln was parked in front of it. At that time, the Lincoln was searched and sweepings taken from the interior of the vehicle revealed a minute amount of cannabis. On these facts, the trial court held that 1978 Lincoln Versailles should be forfeited.

The standard for vehicle forfeiture was set by the Florida Supreme Court in Griffis v. State, 356 So.2d 297 (Fla.1978). There, Griffis failed to stop at an agriculture inspection station. The vehicle was returned to the station and searched at which time a quantity of marijuana and cocaine was discovered. The State instituted proceedings for forfeiture of the truck alleging that the vehicle had been used for the purpose of transporting cannabis and cocaine in violation of Section 943.42, Florida Statutes (1975). The trial court found the statute was constitutional and ordered the vehicle forfeited. Griffis appealed on the grounds that the forfeiture statute required a showing that the seized vehicle was involved in an on-going drug trafficking operation. The supreme court agreed, and held that forfeiture could be permitted only where the seized vehicle had been significantly involved in a criminal enterprise. To warrant forfeiture, more than a mere possession of contraband is required; there must be a showing of a nexus between “the illegal drugs found in the car and the furtherance of an illegal drug operation.” See also Nichols v. State, 356 So.2d 933 (Fla. 2d DC A 1978); Brown v. State, 357 So.2d 472 (Fla. 1st DCA 1978).

In ‘the instant case, the State argues Griffis, supra, is distinguishable on its facts in that there one party was arrested and charged with possession of contraband while in this case a large drug trafficking operation was in progress. However, while it is undisputed that a large scale drug operation occurred at the McLaughlin residence, which housed 194 bales of marijuana, the evidence connecting the vehicle with that transaction was insufficient to form the basis for a forfeiture action. The State alleged the Lincoln was driven by an unidentified person to the residence at Mc-Laughin Boulevard and that it was parked in front of this residence at the time the search resulting in the discovery of the contraband was conducted. In addition, large quantities of contraband were recovered from other cars leaving the residence. These facts, while placing the vehicle at the scene of the crime, did not prove the vehicle was “significantly involved” in the illegal drug operation. Mere possession has been shown which was insufficient under Griffis, supra. Therefore, the court erred in finding that the State established, by a preponderance of the evidence, that the vehicle was involved in the drug operation. Accordingly, the judgment of the trial court is REVERSED.

SCHEB, C. J., and HOBSON, J., concur.


text:
    Kenneth Eugene PRESLEY, Sr., Appellant, v. STATE of Florida, Appellee.
    No. 80-192.
    District Court of Appeal of Florida, Second District.
    Oct. 22, 1980.
   RYDER, Judge.

Kenneth E. Presley, Sr. appeals the trial court’s summary denial of his motion for post-conviction relief filed pursuant to Florida Rule of Criminal Procedure 3.850. Presley alleges that he was denied effective assistance of counsel in that his privately retained counsel provided him with misleading advice in order to obtain a guilty plea. The circuit court summarily denied the motion based on Cappetta v. Wainwright, 203 So.2d 609 (Fla.1967), wherein the court held that inadequacy of privately retained counsel cannot provide the basis for post-conviction relief.

The trial court was without benefit of a recent United States Supreme Court decision, Cuyler v. Sullivan, ___ U.S. ___, 100 S.Ct. 1708, 64 L.Ed.2d 333 (1980), wherein the court held that ineffective assistance of privately retained counsel, as well as appointed counsel, can provide grounds for federal habeas corpus relief. In that opinion, written by Justice Powell, the Court reasoned:

A proper respect for the Sixth Amendment disarms petitioner’s contention that defendants who retain their own lawyers are entitled to less protection than defendants for whom the State appoints counsel. ... Since the State’s conduct of a criminal trial itself implicates the State in the defendant’s conviction, we see no basis for drawing a distinction between retained and appointed counsel that would deny equal justice to defendants who must choose their own lawyers.

100 S.Ct. at 1716.

Applying Cuyler v. Sullivan, supra, we find that appellant’s motion is legally sufficient on its face. Accordingly, we have reviewed the record in this case and have discerned the following facts.

Presley was charged by information with five counts of criminal conduct. After negotiation, he pled guilty to Counts I and II, burglary and aggravated battery, and the State nolle prossed the remaining counts. At the hearing on appellant’s plea, the following colloquy transpired:

THE COURT: Do we have a psychological on this defendant?
MR. MARS: I received a psychological report and the conclusion was Mr. Presley was in an alcoholical blackout. I do not have the report with me.
THE COURT: Who gave it?
MR. MARS: Dr. Hodge.
THE COURT: Did he determine that Mr. Presley was able to assist you in this?
MR. MARS: It is not reflected in the report, but it is reflected in the conversation I had with Dr. Hodge. I explained to Mr. Presley that voluntary intoxication is not a defense in these matters.

Voluntary intoxication is a defense to specific intent crimes, and burglary is a specific intent crime. Consequently, the record appears to support appellant’s allegation that he did not receive reasonably effective assistance of counsel.

As the record does not show that appellant is entitled to no relief, the order denying post-conviction relief is reversed and the case is remanded for an evidentiary hearing on whether appellant received reasonably effective assistance of counsel.

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

      . The Florida Supreme Court has not yet had an opportunity to recede from Cappetta v. Wainwright, supra, but we anticipate that action being taken in light of Cuyler v. Sullivan, supra, and act accordingly.

      . Britts v. State, 158 Fla. 839, 30 So.2d 363 (1947).

      . Porter v. State, 341 So.2d 1017 (Fla.2d DCA 1977), cert. denied, 352 So.2d 173 (Fla.1977).

      . The Florida Supreme Court receded from its prior standard of “farce and mockery” and instituted a new standard of “reasonably effective assistance of counsel” in Meeks v. State, 382 So.2d 673 (Fla.1980).


author: ERVIN, Judge.

text:
    Terry AMERSON, Appellant, v. STATE of Florida, Appellee.
    No. LL-228.
    District Court of Appeal of Florida, First District.
    Oct. 22, 1980.
    Michael J. Minerva, Public Defender, and Louis G. Carres, Asst. Public Defender, for appellant.
    Jim Smith, Atty. Gen., and Wallace E. Allbritton and Carolyn M. Snurkowski, Asst. Attys. Gen., for appellee.
   ERVIN, Judge.

Amerson was convicted of conspiracy to sell cocaine after pleading no contest, reserving his right to appeal the denial of his motion to suppress the fruits of intercepted wire communications on the telephone of codefendant Eddie Mangun.

A trial judge authorized interception of wire communications at the Mangun residence based on the affidavit of Deputy Williams that he had first met, through a confidential informant, Eddie, who at that time had discussed with him the sale of cocaine. Eddie told the deputy his supply was exhausted but more would be available in a few days. He suggested the deputy call him later, giving him the telephone number of his residence, which was the number the affiant sought to tap. Later, a confidential informant outfitted with a bugging device called Eddie and discussed purchasing Vi ounce of cocaine for $375. The informant and the deputy went to Eddie’s residence and purchased the cocaine. At that time, Eddie told him he could get ounces of cocaine for cash. On another occasion, the deputy called Eddie to purchase Vz ounce of cocaine for $750, and Eddie told the deputy he could purchase cocaine weekly in those amounts or more. The deputy purchased Vz ounce of cocaine from Eddie for $750. At another time, over the telephone, Eddie told the deputy he had just gotten back in town with a load of cocaine, that he was on his way north to sell it and had stopped in town only long enough to sell to his regular customers. Finally, during a surveillance of Eddie’s residence, several persons were seen entering and leaving it. The affiant concluded that Eddie was dealing in very large quantities of cocaine and that a wiretap order was necessary to determine the “identity of persons violating Chapter 893 ... and ... engaged in conspiracies to violate said Chapter ...” with the white' male known as Eddie. The affiant stated that other methods of investigation had been tried or were not useful in discovering the unknown individuals Eddie was dealing with and the ultimate source of the cocaine.

The judge found probable cause to believe that the white male known as Eddie and other unknown persons “are committing, have committed and are about to commit one of the offenses enumerated in Florida Statute 934.07, to wit: the possession, delivery and sale of controlled substances in violation of Chapter 893, ... and that the said offenses are being carried on as a conspiracy .... ” The trial judge issuing the order found that the affidavit established probable cause to believe that Eddie’s telephone had been and was about to be used in the offense of dealing in narcotic drugs.

Appellant argues that the trial court erred in denying the motion to suppress because the affidavit did not establish probable cause to believe the telephone was being used in furtherance of a conspiracy to commit a violation of Florida law in that the affidavit failed to state any person other than Eddie had been involved in the sale of cocaine to the officers. Clearly a conspiracy involves an agreement between two or more persons to commit an illegal act. Section 777.04(3), Florida Statutes (1977); King v. State, 104 So.2d 730, 732 (Fla.1957); Betancourt v. State, 228 So.2d 124 (Fla. 3d DCA 1969). Still, the sufficiency of an affidavit to establish the necessary elements supporting the issuance of a wiretap order must be determined from reading all of the affidavit, Rodriguez v. State, 297 So.2d 15, 17 (Fla.1974), and it should be tested “in a common sense and realistic fashion.” United States v. Ventresca, 380 U.S. 102, 108, 85 S.Ct. 741, 746, 13 L.Ed.2d 684 (1965).

It was not necessary for the affidavit to allege specifically that Eddie and another person were using the telephone for the purpose of conspiring to deliver a controlled substance to a third person, such as the informant or the officer. If the affidavit alleges facts from which it can be reasonably believed that the party whose communications are sought to be intercepted is committing or is about to commit a proscribed offense and that the interception will reveal a communication relating to that offense, probable cause is established which will justify the issuance of an order authorizing the interceptions. See Rodriguez v. State, supra. The sufficiency of the affi-ant’s direct observations and the reasonable inferences derived from those observations-while not adequate to justify a conviction of conspiracy-nevertheless furnished probable cause to believe that Eddie and other unknown persons had conspired to violate the narcotics laws. It was reasonable for the affiant, due to Eddie’s representations that he could supply him weekly with large amounts of cocaine, to believe that Eddie in turn was being provided cocaine from another source. Therefore the wiretap order was valid in order to discover the source from whom Eddie Mangun was reasonably believed purchasing and later distributing.

United States v. Baynes, 400 F.Supp. 285 (E.D.Pa.1975) is instructive. There an informant was bugged by the government and sent into the home of three individuals to discuss buying heroin from them. After several talks, by phone and in person, with each of them separately, resulting in at least one purchase from each, the government applied for a wiretap order to discover other individuals, possibly the source, who were trafficking in heroin with the three named individuals. As to probable cause to believe the three known and the “other unknown persons” were “committing offenses involving the distribution, possession and possession with intent to distribute heroin,” the district court stated:

[T]he conversations and other evidence set forth ... amply demonstrate that there was probable cause to believe that ... [the named individuals] ... and “others as yet unknown” were participants in the scheme of distribution .... 400 F.Supp. at 295.

AFFIRMED.

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

      . The affidavit specifically stated:
      Further, based upon the large quantities of cocaine Eddie has sold to me, and the larger quantities he has offered to sell me on a weekly basis, it is my opinion that Eddie is selling cocaine to other persons who are in turn selling the cocaine to other persons for consumption.


text:
    Ida E. HOLLIE, Appellant, v. Clarence J. HOLLIE, Appellee.
    No. TT-69.
    District Court of Appeal of Florida, First District.
    Oct. 22, 1980.

      Michael C. Overstreet and Robert B. Staats, Panama City, for appellant.
    Thomas D. Beasley, DeFuniak Springs, for appellee.
   PER CURIAM.

The appellant-wife appeals from a final judgment of dissolution of marriage, contending that it was error for the trial court to deny her motion for continuance of the final hearing, and it was further error to permit the appellee-husband to amend his answer at the hearing by asserting a counterclaim for dissolution. We find error and reverse.

The action was initiated by the wife’s complaint for dissolution of marriage, which included a claim for alimony. The husband’s attorney scheduled the matter for final hearing on November 19, 1979. On November 16, 1979, the wife’s attorney filed a motion for continuance and a motion to withdraw as attorney. The motion for continuance set forth that the wife was scheduled to be admitted to the hospital on November 19, and that it was impossible for her to attend the hearing. The motion to withdraw prepared by the wife’s Pensacola attorney was grounded in part upon the fact that venue of the case had been transferred to Walton County upon the husband’s motion; that he had attempted to locate another attorney for the wife but was unable to do so; that the wife had requested the attorney not to proceed with the divorce, and that she would be in touch with him later. The attorney’s motion also related that on October 9 he had advised the wife of the final hearing, but that the wife failed to contact him until November 14, at which time she told him that she could not attend the final hearing because she was scheduled to be admitted to the hospital.

Neither the wife nor the attorney appeared at the final hearing. At the hearing, the trial judge allowed the husband to amend his pleadings by counterclaiming for dissolution, and a final judgment of dissolution was granted, containing no provision concerning the alimony claims of the wife.

Although we do not condone the late filing of the motion for continuance, and the failure of the wife or her attorney to appear at the final hearing, the trial judge’s denial of the motion for continuance furnished no basis upon which the husband could be permitted to assert a claim for affirmative relief without notice, service of the amended pleading upon the wife, or affording her an opportunity to respond. Kitchens v. Kitchens, 162 So.2d 539 (Fla. 3rd DCA 1964); Rule 1.080, Florida Rules of Civil Procedure. Rule 1.190(b), Florida Rules of Civil Procedure, relating to issues “tried by express or implied consent of the parties,”, and authorizing amendment of the pleadings “to conform to the evidence” cannot be applied to justify the procedure followed here.

REVERSED.

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


text:
    VOYAGER LIFE INSURANCE COMPANY, Appellant, v. G. Hanson AVERY, Appellee.
    No. UU-168.
    District Court of Appeal of Florida, First District.
    Oct. 22, 1980.

      William D. Brinton of Freeman, Richardson, Watson, Slade, Kelly & Livermore, Jacksonville, for appellant.
    J. Robert Hughes and John D. O’Brien, Panama City, for appellee.
   ERVIN, Judge.

Appellant-credit life insurer appeals a final judgment finding it liable to appellee, the wife of the insured, for the face amount of its policy in the amount of $10,000. Among other things it argues that because the terms of the note and the policy were clear and unambiguous, its coverage had expired before the insured died. We agree and reverse.

The note, secured by the credit life insurance, was dated March 7, 1976, with a due date of September 7, 1976. The provision in the note authorizing credit life insurance stated: “If the undersigned elects credit life insurance coverage, said insurance will be for the term of the credit initially extended by this loan beginning on the date of this loan and ending ... 180 days from this date.” The insurance was issued as of March 7, 1976 for a term of six months. The note remained unpaid as of October 3, 1976-the date of the husband’s death, at a time more than 180 days from the note and the policy’s issuance. When the insurer refused to pay the proceeds of the policy, appellee brought this action seeking their recovery. Prior to trial, the court granted summary judgment on the issue of whether the date of March 7, 1976 was the effective date of the policy and found, even though the note and policy by their terms were to extend 180 days from that date, because the appellee’s husband did not execute the note or the credit life request until April 6, 1976, the credit life policy was still in effect when he died on October 3, 1976.

In State Farm Mutual Automobile Insurance Company v. Veenschoten, 272 So.2d 201, 202 (Fla. 2d DCA 1973), the rule applicable to this problem was stated:

The law seems universal throughout the country that duration of an insurance policy, when fixed by clear and unambiguous language, will not be altered because some incident bearing upon the effectiveness of the policy, such as countersigning or a premium payment, occurs on a non-conforming date.

We do not agree with the appellee that the provision for credit life insurance on the face of the note was ambiguous in its statement that the term of insurance would begin “on the date of this loan and [end] 180 days from this date.” (e.s.) The latter three words could only mean the date of the note. No dates other than March 7, 1976 and the due date, September 7,1976, appear on the note. It is irrelevant to a consideration of the problem that the parties at the time of execution backdated the note to March 7, 1976, a date which coincided with the expiration of the prior note. The parties must be considered bound by the plain and unambiguous language of their contracts. Compare John Deere Industria] Equipment Company v. Roberts, 362 So.2d 65 (Fla. 1st DCA 1978).

Other issues raised by the parties are moot in light of this holding.

Reversed with directions that judgment be entered for appellant.

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

      . This was a renewal note of a prior note beginning March 7, 1975, and expiring March 7, 1976.

      . The only remaining issue to be tried by jury was whether the insurer was estopped from asserting the disability of its insured.

      .Although the final renewal note does not reflect a date of execution, the defendant, in response to a motion to admit, conceded the note was in fact executed on April 6, 1976.


text:
    Ruby Ann BROWN, Appellant, v. The STATE of Florida, Appellee.
    No. 77-2247.
    District Court of Appeal of Florida, Third District.
    July 1, 1980.
    Ruby Ann Brown, in pro. per.
    Jim Smith, Atty. Gen., for appellee.
    Before NESBITT, BASKIN and DANIEL S. PEARSON, JJ.
   PER CURIAM.

This court, proceeding in the manner outlined and recommended by the Supreme Court of the United States in Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), having deferred ruling on a motion of the public defender to withdraw as counsel for the indigent defendant-appellant, and having furnished appellant with a copy of the public defender’s memorandum brief, and having allowed the appellant a reasonable specified time within which to raise any points that he chose in support of this appeal, and the appellant having failed to respond thereto, on consideration thereof upon full examination of the proceedings we conclude that the appeal is wholly frivolous. Whereupon, the public defender’s said motion to withdraw is granted, and the order or judgment appealed is hereby affirmed.


text:
    Rafael SOTO, Appellant, v. The STATE of Florida, Appellee.
    80-536.
    District Court of Appeal of Florida, Third District.
    July 1, 1980.
    Rafael Soto, in pro. per.
    Jim Smith, Atty. Gen., for appellee.
    Before NESBITT, BASKIN and DANIEL S. PEARSON, JJ.
   PER CURIAM.

CCCCCCCCCcourt, proceeding in the manner outlined and recommended by the Supreme Court of the United States in Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), having deferred ruling on a motion of the public defender to withdraw as counsel for the indigent defendant-appellant, and having furnished appellant with a copy of the public defender’s memorandum brief, and having allowed the appellant a reasonable specified time within which to raise any points that he chose in support of this appeal, and the appellant having failed to respond thereto, on consideration thereof upon full examination of the proceedings we conclude that the appeal is wholly frivolous. Whereupon, the public defender’s said motion to withdraw is granted, and the order or judgment appealed is hereby affirmed.


text:
    J. E. P, a juvenile, Appellant, v. The STATE of Florida, Appellee.
    No. 80-100.
    District Court of Appeal of Florida, Third District.
    July 15, 1980.
    J.E.P., in pro. per.
    Jim Smith, Atty. Gen., for appellee.
    Before HUBBART, SCHWARTZ and NESBITT, JJ.
   PER CURIAM.

This court, proceeding in the manner outlined and recommended by the Supreme Court of the United States in Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), having deferred ruling on a motion of the public defender to withdraw as counsel for the indigent defendant-appellant, and having furnished appellant with a copy of the public defender’s memorandum brief, and having allowed the appellant a reasonable specified time within which to raise any points that he chose in support of this appeal, and the appellant having failed to respond thereto, on consideration thereof upon full examination of the proceedings we conclude that the appeal is wholly frivolous. Whereupon, the public defender’s said motion to withdraw is granted, and the order or judgment appealed is hereby affirmed.


text:
    The TRUSTEES OF CENTRAL STATES SOUTHEAST AND SOUTHWEST AREAS PENSION FUND, Frank Fitzsimmons, Roy L. Williams, Hubert L. Payne, Loran W. Robbins, Robert Schlieve, John F. Spickerman, Andrew G. Massa, Robert Baker, Howard McDougall and Leroy Wade, Appellants, v. ALSA LAND DEVELOPMENT, a partnership whose partners are Samuel J. Fountas, Samuel E. Cohen, Alan J. Cohen, Joel Cohen, Jerry A. Wittels and A.I.M. Investment Corp., a Florida Corporation, a partnership; and Samuel J. Fountas, Shirley Fountas, his wife, Samuel E. Cohen, Ethel Cohen, his wife, Alan J. Cohen, Dorothy Cohen, his wife, Jerry A. Wittels, Elaine Wittels, his wife, Joel Cohen, Alvin I. Malnik and Deborah C. Malnick, his wife, Abraham Morgenstern, Harry Tofell, Murray Bellow, Bernard Zimmerman and Joseph S. Wohl d/b/a Lauderdale River Park Associates, a New York partnership, Appellees.
    No. 79-2503.
    District Court of Appeal of Florida, Fourth District.
    Aug. 6, 1980.
    Rehearing Denied Sept. 10, 1980.
    Eric B. Meyers and Gregory P. Borgogno-ni, of Shutts & Bowen, Miami, and Laurence Feingold, of Fuller, Feingold, Weil & Seheer, Miami Beach, for appellants.
    Jack M. Coe and Thomas E. Lee, Jr., of Lee, Schulte, Murphy & Coe, P. A., Miami, and Allsworth, Doumar, Schuler, Padula & Laystrom, Fort Lauderdale, for appellees.
   PER CURIAM.

Affirmed.

MOORE and BERANEK, JJ., and LEWIS KAPNER, Associate Judge, concur.


author: PER CURIAM. MOORE, Judge,

text:
    Donald V. REID, Appellant, v. Beatrice H. GARDNER, also recorded as Beatrice H. McLaren, Estate Representative, Appellee.
    No. 80-246.
    District Court of Appeal of Florida, Fourth District.
    Aug. 27, 1980.
    Rehearing Denied Oct. 15, 1980.
    Donald V. Reid, pro se.
    Douglas C. Fulton of Weber & Fulton, West Palm Beach, for appellee.
   PER CURIAM.

Affirmed.

HERSEY and GLICKSTEIN, JJ., concur.

MOORE, J., dissents with opinion.

MOORE, Judge,

dissenting:

I respectfully dissent; not because I disagree with the majority that appellant has not demonstrated reversible error, but rather because I feel this appeal should be dismissed. Granted, appellant appears pro se. Nevertheless, we should not, and cannot, tolerate such an egregious abuse of the appellate system as demonstrated by the record (or lack thereof) in this case. Appellant seeks a trial de novo in this Court which obviously is not available to him. He fails to follow the Florida Rules of Appellate Procedure, fails to provide us with a transcript of the proceedings in the trial court, and fails to support his appeal with any authority, logic or reason. I feel certain that if this were not a pro se proceeding we would be entertaining motions of another nature. Counsel for appellee is to be commended for the patience he has manifested throughout this matter.


text:
    EDWARD L. NEZELEK, INC., a Florida Corporation, and The Travelers Indemnity Company, Appellants, v. DADE COUNTY FLORIDA f/u/b/o Fred McGilvray, Inc., a Florida Corporation, Appellee.
    No. 79-1850.
    District Court of Appeal of Florida, Third District.
    Sept. 16, 1980.
    Rehearing Denied Oct. 27, 1980.
    John Downing, Richard L. Polin, Ft. Lauderdale, for appellants.
    Stephens, Schwartz, Lynn & Chernay and Robert M. Klein, Coon & Robey, Miami, for appellee.
    Before BARKDULL, HUBBART and DANIEL S. PEARSON, JJ.
   PER CURIAM.

Affirmed. Travelers Indemnity Company v. Housing Authority of the City of Miami, 256 So.2d 230 (Fla.3d DCA 1972); Southwest Florida Water Management District v. Miller Construction Co., Inc. of Leesburg, 355 So.2d 1258 (Fla.2d DCA 1978); Home Insurance Company v. Mendelson, 367 So.2d 1071 (Fla.3d DCA 1979); Snead Construction Corp. v. Langerman, 369 So.2d 591 (Fla.1st DCA 1978).


text:
    The STATE of Florida, Appellant, v. Damasco Vicente RODRIGUEZ, Appellee.
    No. 79-1138.
    District Court of Appeal of Florida, Third District.
    Sept. 23, 1980.
    Rehearing Denied Oct. 27, 1980.
    Janet Reno, State’s Atty., and Ira N. Loewy, Asst. State Atty., for appellant.
    Jack R. Blumenfeld, Spain & O’Donnell, Miami, for appellee.
    Before BARKDULL, HENDRY and SCHWARTZ, JJ.
   PER CURIAM.

Affirmed on the authority of State v. Battleman, 374 So.2d 636 (Fla. 3d DCA 1979).


text:
    Burr W. STUART, Appellant, v. The STATE of Florida, Appellee.
    No. 79-100.
    District Court of Appeal of Florida, Third District.
    Sept. 30, 1980.
    Rehearing Denied Nov. 5, 1980.
    Engel, Aronson, Fried & Cohn and Don S. Cohn, Miami, for appellant.
    Jim Smith, Atty. Gen., and Calvin L. Fox, Asst. Atty. Gen., for appellee.
    Before BARKDULL, HENDRY and NESBITT, JJ.

       Charles Carroll, (Ret.), Associate Judge, participated in the oral argument but not in the decision.

   PER CURIAM.

The appellant’s judgment of conviction is reversed with directions to discharge him from custody. Because of the reasons and authorities stated in Royer v. State, 389 So.2d 1007 (Fla. 3d DCA 1980( (en banc) and State v. Frost, 374 So.2d 593 (Fla. 3d DCA 1979), we find the trial court erroneously denied appellant’s motion to suppress the physical evidence.

Reversed with directions.


text:
    Donald C. WILLIAMS, as incompetent by Paula K. Williams, guardian of his person and property, and Paula K. Williams, his wife, Individually, Appellants, v. STATE of Florida, DEPARTMENT OF TRANSPORTATION, Appellee.
    No. 80-741.
    District Court of Appeal of Florida, Second District.
    Oct. 10, 1980.
    Joel D. Eaton of Podhurst, Orseck & Parks, Miami; Wagner, Cunningham, Vaughan, Genders & McLaughlin, Tampa; and H. Guy Smith, Lakeland, for appellants.
    Michael A. Estes of Woolf oik & Estes, Orlando, for appellee.
   PER CURIAM.

Reversed and remanded for entry of a judgment in accordance with State of Florida Department of Transportation v. Knowles, 388 So.2d 1045 (Fla.2d DCA 1980).

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


text:
    Norman FULLER a/k/a Northern Fullard, Appellant, v. The STATE of Florida, Appellee.
    No. 80-1845.
    District Court of Appeal of Florida, Third District.
    Oct. 14, 1980.
    Norman Fuller, in pro. per.
    Jim Smith, Atty. Gen., for appellee.
    Before NESBITT, BASKIN and DANIEL S. PEARSON, JJ.
   PER CURIAM.

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


text:
    Johnnie Earnest NEEL, Appellant, v. STATE of Florida, Appellee.
    No. 80-129.
    District Court of Appeal of Florida, Fifth District.
    Oct. 15, 1980.
    Steadman S. Stahl, Jr., of Varón & Stahl, P.A., Hollywood, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Richard W. Prospect, Asst. Atty. Gen., Day-tona Beach, for appellee.
   PER CURIAM.

AFFIRMED.

Williams v. State, 316 So.2d 267 (Fla.1975).

DAUKSCH, C. J., and COBB and OR-FINGER, JJ., concur.


text:
    Karen Christine FLANAGAN, Appellant, v. STATE of Florida, Appellee.
    No. 79-2298.
    District Court of Appeal of Florida, Fourth District.
    Oct. 15, 1980.
    B. K. Roberts, of Roberts, Miller, Bag-gett, LaFace, Richard & Wiser, Tallahassee, and Carol M. Crosswell, of Winkel, Sims, Kenney & Crosswell, Palm Beach, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Russell S. Bohn, Asst. Atty. Gen., West Palm Beach, for appellee.
   PER CURIAM.

Appellant’s conviction for uttering a forgery is reversed because the State failed to prove that she knew the check which she cashed was forged. In accordance with Heath v. State, 382 So.2d 391 (Fla. 1st DCA 1980), this cause is remanded with directions to discharge the appellant.

REVERSED and REMANDED.

MOORE, HERSEY and GLICKSTEIN, JJ., concur.


text:
    John Eaton CUTTER, Appellant, v. STATE of Florida, Appellee.
    No. SS-103.
    District Court of Appeal of Florida, First District.
    Oct. 17, 1980.
    John Eaton Cutter, in pro. per., for appellant.
    No appearance for appellee.
   PER CURIAM.

On appellant’s appeal from the trial court’s order denying without evidentiary hearing appellant’s motion for post-conviction relief, we filed our opinion on August 14, 1980, 386 So.2d 866, reversing and remanding with instructions for the trial court to either attach that portion of the record which was found to refute appellant’s allegation or to conduct an evidentia-ry hearing. We found that the only ground which might entitle appellant to relief would be his claim of ineffective assistance of counsel. In response to our opinion, the trial court has subsequently entered an order denying an evidentiary hearing but attaching a complete transcript of the record. Upon reviewing the transcript, we find that appellant’s allegations of ineffective assistance of counsel are not substantiated.

AFFIRMED.

MILLS, C. J., and McCORD and WENT-WORTH, JJ., concur.


text:
    Vivian W. CLARY, Appellant, v. Randolph E. CLARY, Appellee.
    No. TT-41.
    District Court of Appeal of Florida, First District.
    Oct. 17, 1980.
    Felix A. Johnston, Jr., of Woods, Johnston & Erwin, Tallahassee, for appellant.
    Angus G. Andrews, De Funiak Springs, for appellee.
   PER CURIAM.

Upon consideration of the briefs and record we find no error in the trial judge’s award of alimony and division of property in this dissolution proceeding. However, as to the restraining order entered against appellant, we think it would be appropriate, as suggested and agreed to by appellee in his brief, for the order to be modified so as to permit Mrs. Clary’s attendance of funeral services for friends or members of her family held at the Clary Funeral Home. Our affirmance is therefore without prejudice to appellant’s right to obtain such a modification.

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


text:
    Donald Henry RIPLEY, James Robert Ripley, Lawrence Fitzgerald Ripley, Suzanne Ripley Kranc and John Noel Ripley, as personal representatives, etc., Appellants, v. Charles F. SIMPSON, Appellee.
    No. UU-54.
    District Court of Appeal of Florida, First District.
    Oct. 17, 1980.
    William E. Bond, Jr., of Wells, Brown & Brady, P. A., Pensacola, for appellants.
    Earl L. Lewis and Roy V. Andrews, of Lindsay & Andrews, Milton, for appellee.
   PER CURIAM.

The judgment of the trial court concerning this land dispute is based on substantial competent evidence and inferences which may justifiably be drawn from that evidence. There are conflicts in the evidence, and inferences which may have sustained a judgment for appellants, but we will not substitute our view of the evidence for that of the trial judge.

AFFIRMED.

ROBERT P. SMITH, Jr., BOOTH and SHAW, JJ., concur.


text:
    ALIMENTA (U.S.A.), INC., Appellant, v. PENDER PEANUT CO., Appellee.
    No. UU-145.
    District Court of Appeal of Florida, First District.
    Oct. 17, 1980.
    Raymond L. Syfrett, of Fitzpatrick, Sy-frett & Hutto, Panama City, for appellant.
    Richard Wayne Grant, Marianna, for ap-pellee.
   PER CURIAM.

Sua sponte, this Court dismisses the appeal on the ground that it was untimely filed. The order appealed from is an order denying Appellant’s motion to dismiss for improper venue. Such an order is interlocutory, and a motion to reconsider its entry is not authorized by Florida Rules of Civil Procedure 1.530(a). Thus, the filing and pendency of a motion for reconsideration does not toll the time for taking an appeal. “M Enterprises, Inc. v. Baumgartner, 362 So.2d 282 (Fla. 1st DCA 1978).

WENTWORTH and JOANOS, JJ., and LILES, WOODIE A., Associate Judge (Retired), concur.