text:
    TRW, INC. and Travelers Insurance Company, Appellants, v. Judy R. BETTS, Appellee.
    No. AB-186.
    District Court of Appeal of Florida, First District.
    Dec. 18, 1981.
    Robert G. Brightman, Orlando, for appellants.
    Donna L. Bergh of Walker, Buckmaster, Miller & Ketcham, Orlando, for appellee.
   PER CURIAM.

The issue on appeal in this case is whether the deputy commissioner erred in assuming jurisdiction to resolve a dispute over a provision in a group insurance contract. We agree with appellants’ argument that the deputy was without jurisdiction and reverse.

While employed by TRW on June 14, 1978, some shelving fell on Betts while she was on the job. In July 1978 she developed a stiff neck and headaches. She reported these symptoms to her doctor, but initially she did not associate the June 14 accident with her symptoms. She was hospitalized from July 14 to July 20, 1978, and she did not return to work until January 3, 1979. Initially while claimant was absent from her job she received group insurance disability benefits. A total of $4,865.93 in group benefits was paid to the claimant. The group plan, to which claimant had made direct contributions from her salary, was provided by Traveler’s, which was also the employer’s worker’s compensation carrier.

Sometime around Christmas 1978 claimant, in discussing her symptoms with a friend, linked the injury with the accident in which the shelving fell on her at work. She notified the employer of this relationship in April of 1979. A claim for worker’s compensation benefits was submitted on July 10, 1979. A hearing was held on March 31, 1980, at which the employer/carrier took the position that there had been no compensable injury. The deputy ruled, however, that the injury was compensable, and the parties eventually entered into a lump sum agreement which the deputy commissioner approved by an order dated July 9,1980.

In a letter to claimant dated June 24, 1980, a Mr. Lynch of Traveler’s group insurance department requested repayment of the $4,865.93 which had been paid under the group insurance policy covering non-work related injuries, inasmuch as it had been determined that the injury was work related. Claimant’s attorney requested a hearing before the deputy commissioner on the issue of whether the carrier was entitled to the $4,865.93 as an offset against worker’s compensation benefits. At the hearing appellants’ position was that neither the employer nor Traveler’s as the worker’s compensation carrier had requested an offset and the issue involved the interpretation of the group insurance policy provision as to non-work related injuries, therefore the deputy commissioner was without jurisdiction to resolve that issue. Nevertheless, in an order dated January 22,1981, the deputy found that the carrier was not entitled to an offset because Mrs. Betts had personally paid for the group insurance disability benefits. The deputy noted that Mrs. Betts had been paid weekly and that certain medical deductions had been made from the disability benefits she had received.

We agree with appellant that the deputy commissioner was without jurisdiction to resolve the issue and that Jewel Tea Co. v. Florida Industrial Commission, 235 So.2d 289 (Fla.1969), is distinguishable from the instant case. In Jewel Tea the claimant was injured on October 6,1961. Three days later the employer informed claimant that the injury was not compensable. For thirty-nine weeks the claimant received $60.00 a week under a group insurance plan. On October 15, 1962, claimant filed a worker’s compensation claim, and on November 10, 1962, the employer began paying benefits. The employer paid $747.00 to cover the period from July 6,1962, to November 10,1962, and continued to pay $42.00 a week for subsequent weeks. The jurisdictional issue arose because the employer contended it was entitled to credit for the group benefits which had been paid for thirty-nine weeks, i.e., from the date of the accident until July 1962. The Judge of Industrial Claims (JIC) found that claimant was temporarily totally disabled beginning on October 6, 1961, yet the JIC ordered that claimant was entitled to compensation after July 6, 1962, and no penalties were awarded. The JIC determined he lacked jurisdiction to rule on the question whether the employer was entitled to the credit it had taken for the group plan benefits. The Commission agreed, but the Florida Supreme Court disagreed and held that the JIC did have jurisdiction. The benefits claimant had received were from a group plan to which employees contributed weekly from their salaries. The court said that as a result of the JIC’s holding that he lacked jurisdiction, the employer obtained credit against its worker’s compensation liability for payments made under the group plan, such a result being contrary to Section 440.21 which makes invalid any contribution by an employee to a worker’s compensation fund. Whether the object was to reduce the group insurance benefits by the worker’s compensation benefits or vice versa, said the court, the result violates the statute, and a claimant is entitled to worker’s compensation benefits in addition to any benefits under an insurance plan to which he contributed.

The instant case differs significantly from Jewel Tea in that neither the employer nor Traveler’s as a worker’s compensation carrier requested the reimbursement as an offset against worker’s compensation benefits. Traveler’s requested reimbursement as the group insurance carrier pursuant to the terms of a separate group insurance policy. It was the claimant who applied for a hearing before the deputy commissioner on the matter after the lump sum settlement of the worker’s compensation claim had been approved.

Although there are some similarities between the instant ease and Jewel Tea, the fact remains that neither the employer nor the worker’s compensation carrier requested credit against worker’s compensation benefits and the resolution of the issue involved interpretation of a provision in the group insurance contract providing that the insurance was to cover non-work related injuries. The deputy was without statutory authority to construe this contract. Cf. U.S. Home Corp. v. Parker, 404 So.2d 170 (Fla. 1st DCA 1981), and Total Appliance Repairs v. Nelson, 382 So.2d 1333 (Fla. 1st DCA 1980). Therefore, we reverse the order of the deputy commissioner for lack of jurisdiction, without prejudice to the claimant to continue to assert her entitlement to full benefits in the appropriate forum.

Reversed.

ROBERT P. SMITH, Jr., C. J., and MILLS and SHIVERS, JJ., concur.


source: Caselaw Access Project

author: ROBERT P. SMITH, Jr., Chief Judge.

license: Public Domain

text:
    Paul J. ACKEL, Appellant, v. MID-VALLEY, INC. and United States Fidelity and Guaranty Co., Appellees.
    No. AB-194.
    District Court of Appeal of Florida, First District.
    Dec. 18, 1981.
    Harry C. Goodheart, III, of Goodheart & Logan, Bradenton, for appellant.

      W. Robert Mann, of Mann & Fay, Chartered, Bradenton, for appellees.
   ROBERT P. SMITH, Jr., Chief Judge.

We have considered at some length Ack-el’s appeal from the deputy commissioner’s 1981 order denying Ackel’s petition to modify the May 1978 compensation order based on an asserted detrimental change in Ack-el’s condition. Section 440.28, Florida Statutes (1979). By the order now appealed the deputy declined to increase Ackel’s earlier 70 percent permanent partial disability rating, due to lost wage earning capacity, declined to reclassify Ackel as temporarily and totally disabled, and declined to order remedial psychiatric treatment.

Ackel’s present psychiatric disability, attested by a psychiatrist who examined Ack-el but once before the modification hearing, and at the instance of Ackel’s attorney rather than for an attending physician, is shown by this record as a deepening exacerbation of emotional problems which attended Ackel’s physical disabilities at the time of the original May 1978 compensation order. Whether the deputy properly regarded the new psychiatric testimony as cumulative of evidence that was or should have been adduced at the earlier compensation hearing, thus as not requiring modification, is somewhat problematic. See Sonny Boy’s Fruit Co. v. Compton, 46 So.2d 17 (Fla.1950); Sauder v. Coast Cities Coaches, Inc., 156 So.2d 162 (Fla.1963). Yet given Ackel’s noncompensable heart and neck disabilities, which in light of the whole record must be regarded as inextricably related to his present psychiatric difficulties, the deputy was not bound in all events to find a discrete relationship between the compensa-ble injury and Ackel’s present emotional condition. Nor is new countervailing psychiatric testimony required to support the denial of the modification petition. No sufficient showing having been made that Ackel is entitled to modification as a matter of law, the deputy’s order is

AFFIRMED.

MILLS and SHIVERS, JJ., concur.


author: PER CURIAM.

text:
    BECKER METALS CORPORATION, Petitioner, v. WEST FLORIDA SCRAP METALS, Respondent.
    No. AB-387.
    District Court of Appeal of Florida, First District.
    Dec. 18, 1981.

      Eric C. Eggen, Pensacola, for petitioner.
    James E. Moore of Moore & Anchors, Niceville, for respondent.
   PER CURIAM.

By petition for writ of common law cer-tiorari we are asked to quash an order compelling production of certain business records which are alleged to be trade secrets. We have jurisdiction. Art. V, § 4(b)(3), Fla.Const.; Rule 9.030(bX2XA), Fla.R.App.P.

Becker Metals Corp. (Becker Metals) contracted on February 6,1979 with West Florida Scrap Metals Company, Inc. (West Florida) to purchase 35,000 pounds of No. 1 scrap copper to be delivered to Halstead Metal Products (Halstead), which was not made a party to this action.

Becker Metals sent a copy of a letter it received from Halstead to West Florida, advising that Halstead would accept only No. 1 scrap copper in a certain condition and packaged for shipping in a particular manner. All other shipments would be rejected. Apparently, West Florida executives feared rejection of a large copper shipment and refused to deliver. To fulfill its agreement with Halstead, Becker Metals covered by purchasing No. 1 scrap copper at a higher price from another company.

Becker Metals brought suit against West Florida for damages, seeking the difference between the cover price and the contract price. West Florida affirmatively defended by alleging that Becker Metals had fraudulently misrepresented that it would act as an agent or broker on West Florida’s behalf; that as a result they were induced to execute the contract for delivery of copper to Halstead by their agent, Becker Metals; and that Becker Metals, as an agent, had no reason to cover without direction from West Florida. West Florida apparently determined to prove this, at least in part, by showing that Becker Metals acts as an agent or middleman in its regular course of business.

When Becker Metals resisted discovery, West Florida moved for production of business records and contracts. The lower court ordered production of contracts and records directly related to this transaction, inventory records, and all of Becker Metals’ contracts for the purchase of No. 1 copper from any source for the period of January 23 to March 8, 1979.

Becker Metals argues that production of all contracts from January 23 to March 8 pursuant to paragraph 2 of the order would not only identify its clients, but that production would make public the terms of dealing with its clients. As a general rule, information sought to be discovered must relate to the issues involved in the litigation in which an attempt to compel is made. Everglades Protective Syndicate v. Makinney, 391 So.2d 262, 263-264 (Fla. 4th DCA 1980). While the contracts may provide information relevant to West Florida’s affirmative defense, the petitioners have argued that the information is privileged as a trade secret under Section 90.506, Florida Statutes.

The lower court did not indicate why it granted the motion to compel production, but we found no competent, substantial evidence in the record to support paragraph 2 of the order. If the contracts were found not to be trade secrets, it appears that this determination was made without a review of the contracts because they are not a part of the record. Without examination of the items claimed to be a trade secret, how can a determination be reached?

On the other hand, if the lower court assumed that the items were trade secrets, it appears that production was permitted to confirm or deny West Florida’s allegations of fraud. The trade secrets statute does not bar complete disclosure if a fraud will be concealed or an injustice will be worked. Having plead the affirmative defense of fraud, West Florida argues that it has a right to examine the Becker Metals contracts. However, if disclosure is necessary, the statute requires that a court take protective measures to: (1) protect the interests of the holder of the privilege; (2) protect the interests of the parties; and (3) further the interests of justice.

We find that there has been a departure from the essential requirements of law that will result in a material injury that is irreparable on appeal. Therefore, the lower court is hereby required to determine whether the Becker Metals contracts for the purchase of No. 1 scrap copper for the period of January 23 through March 8,1979, constitute a trade secret. If so, the court is directed to permit discovery with safeguards to protect the secret nature of the information. Paragraph 2 of the lower court order is therefore quashed.

Certiorari granted.

SHAW, WENTWORTH and THOMPSON, JJ., concur.

      . 90.506 Privilege with respect to trade secrets. — A person has a privilege to refuse to disclose, and to prevent other persons from disclosing, a trade secret owned by him if the allowance of the privilege will not conceal fraud or otherwise work injustice. When the court directs disclosure, it shall take the protective measures that the interests of the holder of the privilege, the interests of the parties, and the furtherance of justice require. The privilege may be claimed by the person or his agent or employee.


text:
    Larry HARLEY, Appellant, v. STATE of Florida, Appellee.
    No. AC-385.
    District Court of Appeal of Florida, First District.
    Dec. 18, 1981.

      Charles Friend, Tallahassee, for appellant.
    Jim Smith, Atty. Gen., and David P. Gauldin, Asst. Atty. Gen., for appellee.
   PER CURIAM.

Harley appeals from the final judgment imposed on 116 counts of uttering forged instruments. He raises three points for our consideration. First, whether the court abused its discretion in granting a motion for continuance made by the state. Second, whether the court erred in requiring him to go to trial on 109 new counts of uttering with only seven working days notice of the additional charges. Third, whether the court erred in failing to exclude from evidence the defendant’s recorded statement.

Harley was arrested on September 6, 1980 on 116 charges of uttering a forged instrument. At that time he waived his Miranda rights and voluntarily spoke with the authorities. During his interrogation the investigating officer indicated that he would charge Harley with only seven counts, however it would be up to the state attorney’s office whether additional charges would be filed. Harley then gave a recorded statement that he had passed the 116 checks at the locations indicated.

Harley was charged by information with seven counts of uttering. The public defender’s office was appointed, but later withdrew from representing him. Private counsel was appointed as a special public defender and a trial was set for February 19, 1981. At a pretrial conference on February 18th, appellant noted that at trial he would object to any reference to checks other than the seven checks charged on the ground that the state had not filed a notice of similar fact evidence as required by statute. On February 19th, the state orally moved for a continuance. That motion was granted.

On February 20, 1981 a hearing was held to set a new trial date. At that hearing the state indicated that it intended to file 109 additional counts against Harley. The state requested the trial be set prior to the expiration of the speedy trial period which would occur on March 5, 1981. Defense objected going to trial so quickly on the new charges arguing there was not sufficient time to prepare a defense. Trial was set within the speedy trial period, however, the court noted that there may not be sufficient time for defense counsel to prepare against the additional counts.

An amended information was filed on February 27,1981 charging Harley with 116 counts of uttering. Trial was held on March 3, 1981 on all 116 counts, over the defendant’s protest that he had not had sufficient time to prepare. The defendant’s recorded statement was introduced as evidence over his objection that the statement was induced by the promise of the investigating officer that Harley would only be charged with passing seven checks. The jury returned a verdict of guilty on each count. Under the facts of this case we find it was error for the trial court to require Harley to go to trial on the amended information on March 3, 1981.

The Supreme Court has repeatedly held that not only does due process require that a defendant is entitled to the benefit of counsel but that it is a denial of the defendant’s constitutional right to a fair trial to force him to trial with such expedition as to deprive him of the effective aid and assistance of counsel. White v. Ragen, 324 U.S. 760, 764, 65 S.Ct. 978, 980, 89 L.Ed. 1348, 1352 (1945). This court has long recognized and protected defendant’s right to adequate representation. In Brooks v. State, 176 So.2d 116 (Fla. 1st DCA 1965), we held the right to be represented by counsel necessarily carries with it the right to have a reasonable time in which to prepare for trial. In Hawkins v. State, 184 So.2d 486 (Fla. 1st DCA 1966), we stated that it is elemental that an indigent’s right to counsel necessarily incorporates the right to effective assistance of counsel. And in Kimbrough v. State, 352 So.2d 925 (Fla. 1st DCA 1977), we noted that timely appointment and opportunity for adequate preparation are absolute prerequisites for counsel to fulfill his constitutionally designed role of seeing to it that available defenses are raised and the prosecution put to its proof.

In the present case, we find that the defendant was denied his right to the aid and assistance of prepared counsel at trial. Through no fault of the defendant, the attorney originally appointed to represent him was required to withdraw from that representation due to a conflict. New counsel was appointed and assisted the defendant in the preparation of his defenses to the seven counts charged. The filing of 109 additional charges on the 174th day of the 180 day speedy trial period did not allow sufficient time for counsel to investigate and prepare defenses to these independent additional charges. Under the circumstances of this case, it was error for the trial court to force the defendant to choose between his right to a speedy trial and his right to have a fair opportunity to prepare his defenses. See Sumbry v. State, 310 So.2d 445 (Fla. 2nd DCA 1975). Accordingly, we reverse the convictions.

In light of our reversal of the convictions, we find it unnecessary to address the issue of whether the trial court erred in granting the state’s motion for a continuance. However, we will address the voluntariness of the recorded statement introduced at trial. A confession of guilt freely and voluntarily made is not rendered inadmissible because it appears to be induced by deception. Paramore v. State, 229 So.2d 855 (Fla.1969). Even if a statement is induced by comments of the interrogating officer, if those comments do not constitute misrepresentation and the accused is adequately warned of his constitutional rights, the statement may be freely and voluntarily made. State v. Presley, 389 So.2d 216 (Fla. 5th DCA 1980).

In the present case, Harley was twice read his Miranda warnings prior to the giving of the statement, he signed a written waiver of his constitutional rights, and at the close of his recorded statement he stated that his statement was not a product of any promises, threats or coercion. The interrogating officer’s statement that he would only charge Harley with seven counts at that time, and that it would be up to the state attorney’s office if any additional checks would be charged on him, was not a misrepresentation. The trial court heard the evidence, observed the witnesses, adjudged their credibility and concluded that the statement was freely and voluntarily given. We would not disturb that finding as the record discloses that a preponderance of the evidence supports that conclusion. McDole v. State, 283 So.2d 553 (Fla.1973); Finley v. State, 378 So.2d 842 (Fla. 1st DCA 1979).

Reversed and remanded for proceedings consistent with this opinion.

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


text:
    William R. DEWITT, III, and Bertha L. Dewitt, his wife, Appellants, v. U. S. TITLE COMPANY OF JACKSONVILLE, etc. et al., Appellees.
    No. AD-301.
    District Court of Appeal of Florida, First District.
    Dec. 18, 1981.
    Peter J. Kellogg and Jonathan S. Grout, of Grissett, Humphries & Kellogg, Jacksonville, for appellants.
    Nick V. Pulignano, Jr., and Delbridge L. Gibbs, of Marks, Gray, Conroy & Gibbs, Jacksonville, for appellees.
   ROBERT P. SMITH, Jr., Chief Judge.

There is no error in the trial court’s dismissal with prejudice of Counts I and II of plaintiffs’ second amended complaint. Count III, however, marginally states a cause of action by alleging that continuing the transaction described by other incorporated allegations, plaintiffs’ attorney on February 28, 1978, requested defendant U. S. Title to determine and report the existence of record covenants or restrictions governing construction on the property, and that defendant, undertaking to do so, negligently performed the duty undertaken, to plaintiffs’ subsequent damage. Whatever may be defendant’s affirmative defenses, and however difficult may be plaintiffs’ proof concerning the extent of defendant’s February 28, 1978 undertaking and plaintiffs’ damage sustained in reliance, those allegations withstand a motion to dismiss and require an answer. See Kovaleski v. Tallahassee Title Co., 363 So.2d 1156 (Fla. 1st DCA 1978).

REVERSED.

SHAW and JOANOS, JJ., concur.


text:
    Richard Allen ZACCARDO, Appellant, v. The STATE of Florida, Appellee.
    No. 80-1081.
    District Court of Appeal of Florida, Third District.
    Dec. 22, 1981.
    Bennett H. Brummer, Public Defender and Robert Schrank, Asst. Public Defender, for appellant.
    Jim Smith, Atty. Gen. and Calvin L. Fox, Asst. Atty. Gen., for appellee.
    Before BARKDULL, HENDRY and JORGENSON, JJ.
   PER CURIAM.

The conviction, adjudication and sentence rendered in this cause is reversed because of the refusal of the trial court to charge on the minimum penalties for trafficking in cocaine, upon the authority of Tascano v. State, 393 So.2d 540 (Fla.1981). See also: Williams v. State, 399 So.2d 999 (Fla. 3d DCA 1981); Cunningham v. State, 404 So.2d 759 (Fla. 3d DCA 1981).

No merit is found as to the other point on appeal relating to the sufficiency of the evidence. Winchell v. State, 362 So.2d 992 (Fla. 3d DCA 1978); Frank v. State, 199 So.2d 117 (Fla. 1st DCA 1967); Spataro v. State, 179 So.2d 873 (Fla. 2d DCA 1965).

Therefore, the appellant and the cause is remanded to the trial court for a new trial.

Reversed and remanded with directions.


text:
    In re ESTATE OF William A. RITTER, Deceased. Hattie Clydell Ritter MARTIN, Appellant, v. Judith KRATOCHVIL a/k/a Judith Ann Ritter, Appellee.
    No. 80-1573.
    District Court of Appeal of Florida, Third District.
    Dec. 22, 1981.
    Hendricks & Hendricks and Ben E. Hendricks, Coral Gables, for appellant.
    No appearance for appellee.
    Before HUBBART, C. J., and HENDRY and BASKIN, JJ.
   PER CURIAM.

We have for review a final judgment entered in a probate proceeding below wherein it was determined that two separate but adjoining plats of land in Dade County, Florida, [herein referred to as Lots 17 & 18], constituted homestead property for purposes of alienation, and descent and distribution, under Florida Constitution, Article X, Section 1 (1885), so as to nullify the head of the household’s efforts to alienate by deed and devise by will the said plats of land to his surviving spouse, the appellant Hattie Martin. After a thorough review of the record, the appellant’s brief and the applicable law, we are convinced that the final judgment entered herein must be reversed.

First, we entertain no doubt that the plat of land on which the subject residence was located, Lot 18, was not homestead property for descent and distribution purposes under the aforementioned constitutional provision. The record reflects that Lot 18 was held by the head of the household and the appellant as a tenancy by the entireties at the time of the head of the household’s death on August 21, 1966, and, accordingly, upon said death, the property ceased being homestead and passed by operation of law to the surviving spouse, the appellant herein. Passmore v. Morrison, 63 So.2d 297 (Fla.1953); Denham v. Sexton, 48 So.2d 416, 418 (Fla.1953); Wilson v. Fla. National Bank & Trust Co. at Miami, 64 So.2d 309, 311 (Fla.1953); Menendez v. Rodriguez, 106 Fla. 214, 143 So. 223 (1932).

Second, although not totally free from doubt, we have concluded that the adjoining empty lot, Lot 17, was not homestead property for alienation purposes under the aforementioned constitutional provision. This lot was never used as an integral part of the residence located on Lot 18 [which lot was homestead property during the lifetime of the head of the household.] Lot 17 at no time had any structures or improvements built upon it which served the residence on Lot 18 and was never jointly fenced in with Lot 18. It was merely a separate, empty lot which served, at best, as an excess side yard to the aforementioned residence. As such, it was never homestead property under the above-stated constitutional provision, Brandies v. Perry, 39 Fla. 172, 22 So. 268, 270 (1897), and, accordingly, passed by deed dated April 15, 1948, from the head of the household to the appellant. Clark v. Cox, 80 Fla. 63, 85 So. 173 (1920); see Smith v. Guckenheimer, 42 Fla. 1, 27 So. 900 (1900).

The final judgment under review is reversed and the cause is remanded to the trial court with directions to enter a final judgment declaring that Lots 17 and 18 herein are owned in fee simple by the appellant, Hattie Martin, in accord with the views expressed in this opinion.

Reversed and remanded.

      .“A homestead to the extent of one hundred and sixty acres of land, or the half of one acre within the limits of any incorporated city or town, owned by the head of a family residing in this State, together with one thousand dollars worth of personal property, and the improvements on the real estate, shall be exempt from forced sale under process of any court, and the real estate shall not be alienable without the joint consent of husband and wife, when that relation exists. But no property shall be exempt from sales for taxes or assessments, or for the payment of obligations contracted for the purchase of said property, or for the erection or repair of improvements on the real estate exempted, or for house, field, or other labor performed on the same. The exemption herein provided for in a city or town shall not extend to more improvements or buildings than the residence and business house of the owner; and no judgment or decree or execution shall be a lien upon exempted property except as provided in this Article.” Fla.Const. Art. 10, § 1 (1885).
      This provision of the constitution has since been changed. See Fla.Const. Art. X, § 4 (1968) (amended 1972).

      . The appellee Judith Kratochvil, a lineal descendant granddaughter of the deceased head of the household, did not file a brief or memorandum of law in this cause.

      . It appears that the head of the household’s attempted conveyance of Lot 18 on April 15, 1848, to his wife [the appellant] had no force and effect. Church v. Lee, 102 Fla. 478, 136 So. 242 (1931); 16 Fla.Jur. “Homestead” § 50 (1957).

      . Since this property was not homestead for descent and distribution purposes, § 731.27, Fla.Stat. (1965), which provided:
      “The homestead shall descend as other property; provided, however, that if the decedent is survived by a widow and lineal descendants, the widow shall take a life estate in the homestead, with vested remainder to the lineal descendants in being at the time of the death of the decedent.”
      was totally inapplicable to this case.


text:
    Johnny ANDERS, Appellant, v. The STATE of Florida, Appellee.
    No. 80-1939.
    District Court of Appeal of Florida, Third District.
    Dec. 22, 1981.
    Bennett H. Brummer, Public Defender and Herbert Smith, Sp. Asst. Public Defender, for appellant.
    Jim Smith, Atty. Gen. and Calvin L. Fox, Asst. Atty. Gen., for appellee.
    Before BARKDULL, DANIEL S. PEARSON and FERGUSON, JJ.
   PER CURIAM.

Affirmed. See and compare: State v. Cumbie, 380 So.2d 1031 (Fla.1980); Lewis v. State, 377 So.2d 640 (Fla.1980); Peterson v. State, 376 So.2d 1230 (Fla. 4th DCA 1979); Castor v. State, 365 So.2d 701 (Fla.1978); Comer v. State, 318 So.2d 419 (Fla. 3d DCA 1975); Rembert v. State, 311 So.2d 199 (Fla. 3d DCA 1975); Sullivan v. State, 303 So.2d 632 (Fla.1974); Reis v. State, 248 So.2d 666 (Fla. 3d DCA 1971).


text:
    James A. LEE, Appellant, v. The STATE of Florida, Appellee.
    No. 81-344.
    District Court of Appeal of Florida, Third District.
    Dec. 22, 1981.
    Bennett H. Brummer, Public Defender and Beth C. Weitzner, Asst. Public Defender, for appellant.
    Jim Smith, Atty. Gen. and Steven Jacob, Asst. Atty. Gen., for appellee.
    Before HENDRY, SCHWARTZ and FERGUSON, JJ.
   PER CURIAM.

Affirmed. Williams v. State, 400 So.2d 542 (Fla.3d DCA 1981).


text:
    Edward BAILEY, Appellant, v. The STATE of Florida, Appellee.
    No. 81-468.
    District Court of Appeal of Florida, Third District.
    Dec. 22, 1981.
    Bennett H. Brummer, Public Defender and Deborah Whisnant, Asst. Public Defender, for appellant.
    Jim Smith, Atty. Gen. and Theda R. James, Asst. Atty. Gen., for appellee.

      Before SCHWARTZ, NESBITT and DANIEL S. PEARSON, JJ.
   PER CURIAM.

Affirmed. Husted v. State, 370 So.2d 853 (Fla. 3d DCA 1979).


author: DANIEL S. PEARSON, Judge.

text:
    Luerain FRISON, Appellant, v. WINN-DIXIE STORES, INC., Appellee.
    No. 81-584.
    District Court of Appeal of Florida, Third District.
    Dec. 22, 1981.
    Kosdan & Pariser and Brian W. Pariser, Miami, for appellant.
    Vemis, Bowling, West, Montalto & Goodman and Stephen N. Montalto, Coconut Grove, for appellee.
    Before SCHWARTZ and DANIEL S. PEARSON, JJ, and OWEN, WILLIAM C., Jr., (Ret.), Associate Judge.
   DANIEL S. PEARSON, Judge.

Directing a verdict for the defendant, Winn-Dixie Stores, Inc., the trial judge declared that a dangerous condition would be created only if the glass bottles of Pine-Sol (a slippery liquid cleanser) were displayed on the defendant’s grocery store shelves so that more than fifty per cent of the three-to-four-inch base of the bottles overlapped the edges of the shelves. Under this restrictive view of “dangerous condition,” only store customers caught in an avalanche of Pine-Sol bottles falling to the floor as a result of imbalance and gravity could possibly recover for injuries. Since Mrs. Frison was admittedly not the victim of freely falling bottles, but instead, while reaching for a less accessible, smaller bottle of Pine-Sol, she apparently dislodged the larger bottles which were stacked so as to protrude an inch beyond the edges of the shelves, she was denied recovery by the trial court.

Winn-Dixie’s argument, here and below, that the bottles could not fall down by themselves is hardly a basis for a finding that, as a matter of law, the store was not negligent, even if the plaintiff herself was negligent. See Pittman v. Volusia County, 380 So.2d 1192 (Fla. 5th DCA 1980). Whether Winn-Dixie was negligent in shelving the glass bottles so that they precariously protruded an inch beyond the edges of the shelves is most assuredly a jury question. Accordingly, we reverse the final judgment entered upon the directed verdict in favor of Winn-Dixie Stores, Inc. and remand the cause for a new trial.

Reversed and remanded.


author: SCHWARTZ, Judge.

text:
    Peter Ernest ZUCCARO, Appellant, v. Gail Patricia ZUCCARO, Appellee.
    No. 81-1338.
    District Court of Appeal of Florida, Third District.
    Dec. 22, 1981.

      James V. Johnstone, North Miami, for appellant.
    Barbara Green, Legal Services of Greater Miami, Inc., Miami, for appellee.
    Before HUBBART, C. J., and SCHWARTZ and JORGENSON, JJ.
   SCHWARTZ, Judge.

Zuccaro brought an action in the Dade County Circuit Court for, among other things, the custody of the parties’ two-year-old boy, Andrew. He admitted that he had brought the child into Florida after removing him, without notice, from New York State, where the boy had been living with his mother; and that he had taken this action when Andrew had lived in New York for three days short of six months for the express purpose of preventing New York from becoming the child’s “home state” under Section 61.1306(5), Florida Statutes (1979). Largely because of this conduct, the trial court, pursuant to Section 61.-1316(1), declined to exercise the jurisdiction it concededly possessed over the custody proceeding on the ground that Florida was an “inconvenient forum” and that the issue should more appropriately be considered in New York. Zuccaro appeals but we affirm.

The implementation of a strong public policy against the pernicious and immensely damaging practice of child snatching, as occurred in this case, was one of the primary and underlying reasons for the very existence of the Uniform Child Custody Jurisdiction Act and its adoption in our state. See generally, Kutun and Fox, Closing the Custody Floodgate: Florida Adopts the Uniform Child Custody Jurisdiction Act, 6 Fla.St.U.L.Rev. 409, 410-11, 413-15 (1978); commissioners’ prefatory note to the Uniform Act, 9 U.L.A. 111-114 (1981). Section 61.1304(5), Florida Statutes (1979) expressly states that one of the act’s “general purposes” is to

[d]eter abductions and other unilateral removals of children undertaken to obtain custody awards.

That the order under review vindicates this salutary statutory purpose, is, in our judgment, alone sufficient to demonstrate its propriety. This conclusion is mandated by the terms of the act itself. Under Section 61.1316(3)(e), one of the factors which the court is specifically authorized to consider in determining if jurisdiction should be declined is whether “the exercise of jurisdiction by a court of this state would contravene any of the purposes stated in s. 61.-1304.” See, Wilkerson v. Wilkerson, 404 So.2d 120 (Fla. 4th DCA 1981); Clark v. Clark, 67 A.D.2d 388, 416 N.Y.S.2d 330, 332-33 (1979); Carson v. Carson, 29 Or.App. 861, 565 P.2d 763 (1977); see also, Section 61.1318(1), Florida Statutes (1979) (permitting declining jurisdiction if “the petitioner for an initial decree has wrongfully taken the child from another state”); Wilkerson v. Wilkerson, supra (Beranek, J., specially concurring); Brown v. Tan, 395 So.2d 1249, 1252 (Fla.3d DCA 1981), and cases cited; Costantino v. Costantino, 386 So.2d 1274 (Fla.3d DCA 1980), and cases cited; Both v. Superior Court In & For County of Mohave, 121 Ariz. 381, 590 P.2d 920 (1979); In re Marriage of Ben-Yehoshua, 91 Cal.App.3d 259, 154 Cal.Rptr. 80 (1979); cf. Winkelman v. Moses, 279 N.W.2d 897, 899 (S.D.1979); but see, Mondy v. Mondy, 395 So.2d 193 (Fla. 1st DCA 1981); see generally, Annot.—Validity, Construction, and Application of Uniform Child Custody Jurisdiction Act, 96 A.L.R.3d 968, 995-1002 (1979).

The appellant complains that the trial court did not conduct a full-scale hearing to determine whether declining jurisdiction was in the child’s best interest as provided by Section 61.1316(3). It must be emphasized, however, that the pertinent issue at this stage does not concern the ultimate question of custody itself, but rather “if it is in the interest of the child that another state assume jurisdiction” to decide that question. As the order reflects, from the statements of counsel, the sworn complaint, and the affidavit filed under Section 61.132, the trial judge had more than sufficient information concerning the criteria referred to in Section 61.1316(3) upon which to make a reasoned judgment on that issue. See Mayer v. Mayer, 91 Wis.2d 342, 283 N.W.2d 591, 597 (1979).

Under Canakaris v. Canakaris, 382 So.2d 1197 (Fla.1980), we would not be authorized to interfere with the trial judge’s discretionary resolution of the matter even if we disagreed with the result. We are not, however, in that position. Since it represents what we consider to be a laudable refusal to reward wrongdoing, and in order to deter future similar misconduct, we affirmatively approve and endorse the decision below.

Affirmed.

      . (5) “Home state” means the state in which the child, immediately preceding the time involved, lived with his parents, a parent, or a person acting as parent for at least 6 consecutive months or, in the case of a child less than 6 months old, the state in which the child lived from birth with any of the persons mentioned. Periods of temporary absence of any of the named persons are counted as part of the 6-month or other period.

      . 61.1316 Inconvenient forum.—
      (1) A court which has jurisdiction under this act to make an initial or modification decree may decline to exercise its jurisdiction any time before making a decree if it finds that it is an inconvenient forum to make a custody determination under the circumstances of the case and that a court of another state is a more appropriate forum.

      . In its entirety the order provides as follows:
      1.The minor child of the parties, ANDREW DOMINIC ZUCCARO, was born March 13, 1979 in New Hartford, New York, and resided from March 13, 1979, until August 31, 1979, at Route 12B, Deansboro, New York, with both parties.
      2. From August 31, 1979 until December 1, 1979, Andrew resided with both parties at 16901 S.W. 87th Court, Miami, Dade County, Florida.
      3. From December 1, 1979, until October 25, 1980, Andrew resided with the parties at 9781 Martinique Drive, Miami, Dade County, Florida.
      4. From October 25, 1980, until April 22, 1981, Andrew resided with his mother, the Respondent, in the state of New York.
      5. On April 22, 1981, the Petitioner removed the child Andrew from the State of New York without notice to the Respondent for the express purpose of preventing the child from acquiring six months of residence in New York with his mother, and to prevent New York from acquiring jurisdiction to determine the custody of the child under the Uniform Child Custody Jurisdiction Act.
      6. But for the Petitioner’s wrongful action in removing the child to Florida, the child would have acquired six months residence with his mother in the state of New York.
      7. New York has adopted the Uniform Child Custody Jurisdiction Act.
      8. Immediately preceding the filing of this action, Andrew lived with his mother, the Respondent, in New York for three days less than six consecutive months.
      9. Andrew and his mother, Respondent have a significant connection with the State of New York.
      10. The father, Petitioner, has a significant connection with the State of New York.
      11. An action for the custody of the child was filed by the mother, Respondent herein, in the Family Court of the State of New York one day after the date of the filing of this action.
      12. Exercise of jurisdiction by this Court would contravene one of the purposes of the Uniform Child Custody Jurisdiction Act as set forth in Section 61.1304(5), Florida Statutes, to deter abductions and other unilateral removals of children undertaken to obtain custody awards. New York would be a more appropriate forum to make a custody determination. Therefore, this Court, pursuant to Section 61.1316(3)(e), Florida Statutes, declines to exercise jurisdiction over this matter.

      .
      (3) In determining if it is an inconvenient forum, the court shall consider if it is in the interest of the child that another state assume jurisdiction. For this purpose it may take into account the following factors, among others:
      (a) If another state is or recently was the child’s home state;
      (b) If another state has a closer connection with the child and his family or with the child and one or more more of the contestants;
      (c) If substantial evidence concerning the child’s present or future care, protection, training, and personal relationships is more readily available in another state;
      (d) If the parties have agreed on another forum which is no less appropriate; and
      (e) If the exercise of jurisdiction by a court of this state would contravene any of the purposes stated in s. 61.1304.

      . See n. 3, supra.

      . Zuccaro claims that his wife was also guilty of improperly taking Andrew to New York with her in October, 1980. The two acts cannot be equated, however, because only the father’s was — admittedly—“undertaken to obtain [a] custody award,” which is the conduct condemned by Sec. 61.1304(5).

      . Because of the stay which has been in effect during the pendency of this appeal, we reduce the time within which any motion for rehearing must be filed to five days from this date.


text:
    Joseph M. LAUDA, Appellant, v. H. F. MASON EQUIPMENT CORP., a Florida corporation, and Harold A Howell, Appellees.
    No. 81-1427.
    District Court of Appeal of Florida, Third District.
    Dec. 22, 1981.

      Abrams & Abrams and Steven R. Bergei, Miami, for appellant.
    Martin & Martin and E. Snow Martin, Lakeland, for appellees.
    Before NESBITT, BASKIN and DANIEL S. PEARSON, JJ.
   ON MOTION TO DISMISS

DANIEL S. PEARSON, Judge.

Lauda brought a six-count complaint against H. F. Mason Equipment Corporation (Mason) and Harold Howell (Howell). The trial court entered a final summary judgment in favor of the defendants as to all counts except Count V. Lauda filed a timely appeal and then voluntarily dismissed Count Y in the trial court. Mason and Howell moved to dismiss Lauda’s appeal on the ground that Counts I through IV did not allege causes of action distinct and separate from Count V and therefore are not appealable under Mendez v. West Flagler Family Association, Inc., 303 So.2d 1 (Fla.1974).

We agree with the defendants that the claims stated in Counts I through V substantially involve the same transaction and are legally interrelated. Therefore, were Count V still pending in the trial court, we would unhesitatingly grant the defendant Mason’s motion to dismiss. S.L.T. Warehouse Company v. Webb, 304 So.2d 97 (Fla.1974); Fischer v. Trafalgar Towers Association # 2, Inc., 372 So.2d 528 (Fla. 4th DCA 1979); Venezia A., Inc. v. Askew, 314 So.2d 254 (Fla. 1st DCA 1975). But Count Y has been voluntarily dismissed by the plaintiff, and there would appear to be no impediment to our reviewing the propriety of the summary judgments unless, as the defendants suggest, the voluntary dismissal of Count V is ineffective to give us jurisdiction of this appeal.

It is true that when Lauda filed his notice of appeal, the summary judgments lacked the requisite finality, because an interrelated cause of action pended in the trial court. S.L.T. Warehouse Company v. Webb, supra. That fact, however, did not prevent jurisdiction from vesting when the impediment was removed. If, as is the case, a notice of appeal filed before judgment is rendered is sufficient to vest jurisdiction in the appellate court at the time of rendition, Williams v. State, 324 So.2d 74 (Fla.1975), and jurisdiction of an appeal from a non-final order becomes vested upon the later entry of a final order, Gries Investment Co. v. Chelton, 388 So.2d 1281 (Fla. 3d DCA 1980); Barnes v. Boss, 386 So.2d 812 (Fla. 3d DCA 1980), we see no reason why our initially inchoate jurisdiction did not become choate at the time the plaintiff voluntarily dismissed the interrelated count pending in the trial court.

A voluntary dismissal under Florida Rule of Civil Procedure 1.420(a)(1) is not, as the defendants suggest, an inconsequential or ephemeral act. If Lauda’s voluntary dismissal was effective, there is no interrelated claim remaining in the trial court, and Mendez is no bar to our proceeding with the appeal of these otherwise final judgments. Neither would Lauda’s institution of a new suit on the claim contained in Count V divest us of jurisdiction, see Clarke v. Knight, 84 Fla. 485, 94 So. 671 (1922), and, a fortiori, the spectre of that occurring would have no effect on the appeal.

But Lauda’s problem, as we have intimated, is not the effect of his voluntary dismissal of Count V, but its effectiveness. Florida Rule of Civil Procedure 1.420(a)(1) provides, in pertinent part:

“. .. an action may be dismissed by plaintiff without order of court (i) by serving ... a notice of dismissal at any time before a hearing on motion for summary judgment, or if none is served or if such motion is denied, before retirement of the jury in a case tried before a jury or before submission of a non-jury case to the court for decision ...” (emphasis supplied).

The rule only permits the dismissal of an action. There can be no dismissal without order of court of less than all the causes contained in the action. Deseret Ranches of Florida, Inc. v. Bowman, 340 So.2d 1232 (Fla. 4th DCA 1976). See Exx on Corporation v. Maryland Casualty Company, 599 F.2d 659 (5th Cir. 1979); Smith, Kline & French Laboratories v. A. H. Robins Company, 61 F.R.D. 24 (E.D.Pa.1973). Compare Fla.R.Civ.P. 1.420(b) (“Any party may move for a dismissal of an action or of any claim .... ”). In the present case, the voluntary dismissal of the single claim remaining in the trial court did not remove the defendants from the lawsuit, since Lau-da’s appeal is still pending. The plaintiff’s “action” is not dismissed by the dismissal of one claim in the trial court when other claims contained in the action are still alive, whether well or not, in the appellate court. Exxon Corporation v. Maryland Casualty Company, supra.

We conclude, therefore, that Lauda’s voluntary dismissal of Count V was a nullity and was ineffective to terminate the action in the trial court. Count V still pends in the trial court. Deseret Ranches of Florida, Inc. v. Bowman, supra; Exxon Corporation v. Maryland, supra. The defendant Mason’s motion to dismiss Lauda’s appeal of Counts I through IV is granted; the defendant Howell’s motion to dismiss Lauda’s appeal of Counts I through IV is denied.

      . The defendants concede that Count VI sets forth a cause of action distinct and separate from Counts I through V and that the summary judgment entered thereon is appealable. Our jurisdiction to review the judgment on Count VI does not carry with it jurisdiction to review the judgments on Counts I through IV if they are not appealable. Compare Murphy White Dairy, Inc. v. Simmons, 405 So.2d 298 (Fla. 4th DCA 1981).

      . Mendez held that a dismissed cause of action which is separate and distinct from other joined causes of action is appealable. The corollary is that an order dismissing less than all of interrelated claims involving the same transaction and same parties is not appealable. S.L.T. Warehouse Company v. Webb, 304 So.2d 97 (Fla.1974).

      . Count I alleged a breach of contract in that Lauda was not paid commissions for his efforts on Mason’s behalf. Count II alleged that Lau-da was not. paid for the services he performed under his oral employment agreement with Mason. Count III asked for punitive damages because of Mason’s wrongful refusal to pay Lauda for his efforts. Count IV alleged that more money should have been contributed to the pension fund for Lauda’s account as an emolument of the compensation due him under Counts I and II. Count V alleged that Mason owed Lauda money under the employment contract and demanded an accounting of the territory, sales and money due Lauda. In essence, all five counts involved a breach of a single employment agreement, the difference between the counts lying in the relief sought. See North Indialantic Homeowners Association, Inc. v. Bogue, 390 So.2d 74 (Fla. 5th DCA 1980); Kingsland v. National Advertising Company, 384 So.2d 701 (Fla. 5th DCA 1980); Venezia A., Inc. v. Askew, 314 So.2d 254 (Fla. 1st DCA 1975).

       Howell’s motion to dismiss must be denied in any event, since Howell was not a defendant in Count V, and the trial court’s actions completely disposed of the action against him. See Hamer v. Kahn, 404 So.2d 847 (Fla. 4th DCA 1981). This is not an instance in which Lauda attempted to voluntarily dismiss one of several defendants. Compare Cooper v. Carroll, 239 So.2d 511 (Fla. 3d DCA 1970), with Plains Growers, Inc. v. Ickes-Braun Glasshouses, Inc., 474 F.2d 250 (5th Cir. 1973).

      . The present case is not controlled by cases in which the plaintiff attempts to appeal from an order which he himself solicits and procures. See, e.g., Hawkins v. Perry, 146 Fla. 766, 1 So.2d 620 (Fla.1941), and Rubin v. Gordon, 165 So.2d 824 (Fla. 3d DCA 1964), in which it was held that the plaintiffs appeal from an order dismissing the action entered at the plaintiff’s request would not be entertained. Lauda’s appeal is not from judgments procured at his request, notwithstanding that in his effort to bring about our review of those judgments he has voluntarily dismissed another count.

      . While a voluntary dismissal is without prejudice to the bringing of a new action, it precludes the plaintiff from reviving the original action. Randle-Eastern Ambulance Service, Inc. v. Vasta, 360 So.2d 68 (Fla.1978). A plaintiff who voluntarily dismisses an action is liable for costs incurred by the defendant and cannot proceed a second time until the costs have been paid, Fla.R.Civ.P. 1.420(d); Stein v. Bayfront Medical Center, Inc., 287 So.2d 401 (Fla. 2d DCA 1974); see Randle-Eastern Ambulance Service, Inc. v. Vasta, supra; is faced with the prospect that a second voluntary dismissal will constitute an adjudication on the merits, Fla.R. Civ.P. 1.420(a)(1); Tinsley v. McDonald, 378 So.2d 816 (Fla. 3d DCA 1980); and bears the risk that the statute of limitations may bar the new action, Randle-Eastern Ambulance Service, Inc. v. Vasta, supra.

      . Under such circumstances, the trial court would presumably refrain from wasting precious judicial time on a claim which, in light of its interrelation with claims pending before us, would likely be controlled by our decision on appeal. See Clarke v. Knight, 84 Fla. 485, 94 So. 671 (1922). And see Gulf Theatres, Inc. v. State ex rel. Ferguson, 133 Fla. 634, 182 So. 842 (1938); State Farm Mutual Automobile Insurance Company v. Barczak, 296 So.2d 493 (Fla. 3d DCA 1974); United States v. Thorp, 655 F.2d 997 (9th Cir.1981).

      . In Fears v. Lunsford, 314 So.2d 578 (Fla.1975), the Florida Supreme Court held that a voluntary dismissal could be entered even after the trial court had announced its intention to grant a directed verdict. In fact, the voluntary dismissal under discussion was not as to the entire action, but rather as to one of two claims in the action. See Fears v. Lunsford, 295 So.2d 323 (Fla. 1st DCA 1974). Since no regard was paid to this fact in either the opinion of the court of appeal or the Supreme Court, we can only conclude that its importance was not made an issue by the parties and was overlooked by the courts. See Note, Voluntary Dismissal — Plaintiffs Right to Take Voluntary Dismissal is Absolute; or Plaintiff Gets a Second Chance (hereafter, Voluntary Dismissal), 4 Fla.St.L.Rev. 379 (1976), pointing out that the Fears decisions completely overlooked the Committee Notes to Florida Rule of Civil Procedure 1.420, which provided “subdivision (a) applies to the entire action and does not authorize dismissal of some, but not all, parties or claims.” 4 Fla.StL.Rev. at 383 n. 30. The opinion in Deseret Ranches of Florida, Inc. v. Bowman, supra, makes no mention of Fears, and we share the Fourth District’s apparent view that Fears is not authority for the proposition that less than the entire action can be dismissed under Florida Rule of Civil Procedure 1.420(a).

      . Florida Rule of Civil Procedure 1.420 is patterned after Federal Rule of Civil Procedure 41. We may look to Federal cases as persuasive authority on the interpretation of our rule. Neil v. South Florida Auto Painters, Inc., 397 So.2d 1160, 1163 n. 4 (Fla. 3d DCA 1981); Gross v. Franklin, 387 So.2d 1046, 1048 n. 6 (Fla. 3d DCA 1980).

      . Were we deciding the present motion to dismiss under Federal Rule of Civil Procedure 41, which, unlike our Florida Rule, provides that the right to unilaterally dismiss ends when an answer or motion for summary judgment is served, Exxon Corporation v. Maryland Casualty Company, supra, we would alternatively hold that Lauda’s voluntary dismissal came too late to be effective. This “bright-line” approach of the Federal Rule recognizes that once a defendant has been actively engaged in the defense of a suit to the point of moving for summary judgment, a plaintiff will not be permitted to unilaterally terminate the suit to the defendant’s prejudice. Under the Federal Rule, neither the scope of the motion for summary judgment nor the outcome is meaningful. The more liberal, see Fears v. Lunsford, 314 So.2d 578 (Fla.1975), but maligned Florida Rule, see Note, Voluntary Dismissal, supra; Note, Expanded Right to Voluntary Dismissal Upheld, 30 U.Miami L.Rev. 1092 (1976); M. Massey and M. Weston, Seventh Survey of Florida Law; Civil Procedure, 20 U.Miami L.Rev. 594 (1966); Fears v. Lunsford, supra (Overton, J., concurring), would likely allow Lauda to voluntarily dismiss at the late stage, had such dismissal been of the entire action.


text:
    Giles LAUREN, as General Partner of Arbor Associates, a Florida partnership, successor in interest to Giles Lauren Ventures, Inc., Appellant, v. John A. GRANT, Jr., and John A. Grant, Jr., Inc., Appellees.
    No. 81-253.
    District Court of Appeal of Florida, Fourth District.
    Dec. 23, 1981.

      Stuart R. Michelson of Baron, Michelson & Young, P. A., North Miami, for appellant.
    Nancy Schleifer of Peters, Pickle, Flynn, Niemoeller, Stieglitz & Downs, Miami, for appellees.
   PER CURIAM.

This is an appeal from a final summary judgment entered against the appellant on his claim against the appellees, professional land surveyors, for professional malpractice and breach of contract by reason of the appellees’ alleged improper preparation of a plat.

The appellees filed an affidavit executed by John A. Grant, Jr. in support of a motion for summary judgment which stated that the work performed was done in accordance with sound professional practice. However, at the time the trial court granted the summary judgment there was also evidence in the record indicating that appellees had not prepared the plat in accordance with the agreement with appellant and that the measurements on the plat supplied by the appellees were in fact incorrect. In our view this evidence was sufficient to create genuine issues of fact as to the allegations of malpractice and breach of contract precluding disposition of the case by summary judgment. Holl v. Talcott, 191 So.2d 40 (Fla.1966).

Accordingly, the judgment of the trial court is reversed and this cause is remanded for further proceedings in accordance with this opinion.

DOWNEY, ANSTEAD, and DELL, JJ, concur.


author: GLICKSTEIN, Judge.

text:
    Michael SATZ, as assigned State Attorney, Appellant, v. Gary BLANKENSHIP, Appellee.
    No. 81-1824.
    District Court of Appeal of Florida, Fourth District.
    Dec. 23, 1981.
    As Modified on Appellant’s Motion for Rehearing and/or Clarification and Amicus Curiae’s Motion for Rehearing Dec. 30, 1981.

      Michael J. Satz, State Atty., pro se, and Paul H. Zacks, Asst. State Atty., Fort Lauderdale, for appellant.
    Florence Beth Snyder, West Palm Beach, for appellee.
    Charles C. Chillingworth, Palm Beach, for amicus curiae, David L. Reid.
   GLICKSTEIN, Judge.

Appellant is the State Attorney of the Seventeenth Judicial Circuit of Florida and was appointed by the Governor’s office as special prosecutor in the case of State v. David L. Reid, now pending in the Fifteenth Judicial Circuit. In the course of the investigation of Reid, he came into possession of certain tape recorded conversations. Following demand for discovery by Reid, appellant allowed Reid’s attorney to copy the tape recordings.

Appellee is a newspaper reporter. Pursuant to section 119.07(1) Florida Statutes (1979), he requested access to the tape recordings for the purpose of making copies. When appellant refused, appellee brought a petition for alternative writ of mandamus. After issuing the writ, the trial court entered an order requiring appellant to produce the tapes in order to afford appellee the opportunity to listen to and copy them at his expense and granting appellant a stay, pending the present appeal.

Our inquiry focuses on whether tape recordings are “documents” within the meaning of section 119.011(3)(c)(5), Florida Statutes (1979). That section expressly excludes documents given to an arrestee from an overall exemption of criminal investigative and intelligence information from the open inspection requirement.

Appellant argues that tape recordings are not documents; therefore, he has no duty to release them. By definition, he contends, a document is “[a]n instrument on which is recorded, by means of letters, figures, or marks, the original, official or legal form of something, which may be evidentially used.” Black’s Law Dictionary 432 (5th ed. 1979). He asks us, when engaged in our task of interpreting this statute, to be guided by two principles of construction: the plain meaning rule, and expressio unius est exclusio alterius; that is, the expression of one thing (documents) implies the exclusion of another.

Although we recognize these canons of construction, we believe the principle enunciated in State v. Webb, 398 So.2d 820 (Fla.1981), governs here. In that case, the Supreme Court of Florida wrote:

[I]t is a fundamental rule of statutory construction that legislative intent is the polestar by which the court must be guided, and this intent must be given effect even though it may contradict the strict letter of the statute.

Id. at 824.

First, in ascertaining the intent of the Legislature in this case, we look to the general policy behind the Public Records Act. As articulated in section 119.01, Florida Statutes (1979), Florida lawmakers desired an open policy with respect to state, county, and municipal records.

Second, we consider the purpose behind the enactment of the exemptions dealing with criminal intelligence and investigative information in light of the exclusion of certain types of documents from these two exemptions. As defined in section 119.-011(3)(a), Florida Statutes (1979), criminal intelligence information refers to information relating to “an identifiable person or group of persons collected by a criminal justice agency in an effort to anticipate, prevent, or monitor possible criminal activity.” Criminal investigative information, as defined in subsection (b) of that same section, means information relating to “an identifiable person or group of persons compiled by a criminal justice agency in the course of conducting a criminal investigation of a specific act or omission.” These definitions reveal a clear intention to exclude from the public eye legitimate law enforcement secrets.

On the other hand, “[documents given or required by law or agency rule to be given to the person arrested” are open for public inspection. This provision reveals that once documents are released, the Legislature believed there is no longer a need for secrecy.

Following this analysis, it can be seen that once the tape recordings were given to Reid the information no longer carried with it the legitimacy of law enforcement secrecy. At the point of disclosure, the information became public in a sense and as public information, it lost its efficacy in deterring criminal activity. Accordingly, the trial court acted properly in releasing the tapes to appellee.

A second point was raised on appeal but only by Reid as an amicus curiae. The major portion of his brief argues that the trial judge erred by permitting disclosure of the tapes, thus failing to minimize the effects of prejudicial pretrial publicity. Gannett Co. v. DePasquale, 443 U.S. 368, 99 S.Ct. 2898, 61 L.Ed.2d 608 (1979).

Because this second point was never raised at trial, we think it inappropriate for an amicus curiae to interject a new issue on appeal. See Robertson v. Hert’s Administrators, 312 Ky. 405, 227 S.W.2d 899 (1950). We also recognize that the trial judge in Reid’s case is the one who should first consider and deal with the competing considerations involved in limiting pretrial publicity. Nebraska Press Association v. Stuart, 427 U.S. 539, 96 S.Ct. 2791, 49 L.Ed.2d 683 (1976); Sheppard v. Maxwell, 384 U.S. 333, 86 S.Ct. 1507, 16 L.Ed.2d 600 (1966); Irvin v. Dowd, 366 U.S. 717, 81 S.Ct. 1639, 6 L.Ed.2d 751 (1961); Marshall v. United States, 360 U.S. 310, 79 S.Ct. 1171, 3 L.Ed.2d 1250 (1959). Moreover, this court is unaware of the text of the tape recordings and is similarly unaware of any action taken or relief sought by Reid in the pending criminal case upon the issue he raises here. Accordingly, we affirm and because Reid’s criminal trial is scheduled for January 5, 1982, any motion for rehearing shall be filed by December 29, 1981.

AFFIRMED.

DOWNEY and HERSEY, JJ., concur.

      .Section 119.07(1), Florida Statutes (1979), provides:
      (l)(a) Every person who has custody of public records shall permit the records to be inspected and examined by any person desiring to do so, at reasonable times, under reasonable conditions, and under supervision by the custodian of the records or his designee. The custodian shall furnish copies or certified copies of the records upon payment of fees as prescribed by law or, if fees are not prescribed by law, upon payment of the actual cost of duplication of the copies. Unless otherwise provided by law, the fees to be charged for duplication of public records shall be collected, deposited, and accounted for in the manner prescribed for other operating funds of the agency.
      (b) In the case of records produced under this act, when the nature or volume of records is such as to require extensive clerical or supervisory assistance by personnel of the agency involved, the agency may charge, in addition to the actual cost of duplication, a reasonable charge, approved by the Department of Administration, for the provision of such clerical or supervisory personnel.

      . While the notice of appeal refers to a peremptory writ of mandamus rendered on October 2, 1981, the parties’ briefs agree that it is the order of October 6th which is the subject of this appeal.

      . Section 119.'07(3)(d), Florida Statutes (1979), expressly exempts active criminal intelligence and investigative information from the open inspection requirement found in section 119-07(1).

      .As first recognized in Judge Schwartz’s opinion, speaking for this court in State ex rel. Veale v. Boca Raton, 353 So.2d 1194 (Fla.4th DCA 1977), the rule that any exemption from the Public Records Act must originate in the legislature and not by judicial decision was adopted by the Supreme Court of Florida in Wait v. Florida Power & Light Co., 372 So.2d 420 (Fla.1979).

      . Section 119.01 provides that “[i]t is the policy of this state that all state, county, and municipal records shall at all times be open for a personal inspection by any person.” The definition of “Public records” in section 119.011(1) includes tapes.

      . Section 119.01 l(3)(c)(5).


author: JOANOS, Judge.

text:
    Barry Eugene SMITH, Appellant, v. STATE of Florida, Appellee.
    No. AC-479.
    District Court of Appeal of Florida, First District.
    Dec. 29, 1981.
    John F. Stroud, Jacksonville, for appellant.
    Jim Smith, Atty. Gen., and Carolyn M. Snurkowski, Asst. Atty. Gen., Tallahassee, for appellee.
   JOANOS, Judge.

Appellant raises two points on appeal: (1) Whether the trial court erred in refusing to suppress testimony by an undercover police officer who illegally taped the conversation he had with the defendant in the defendant’s home, and (2) Whether the trial court’s denial of defendant’s motion for reduction of sentence was an abuse of discretion. We affirm on both points.

Although the warrantless electronic surveillance of the defendant’s conversations was in violation of both Article I, § 12 of the Florida Constitution and § 934.06, Florida Statutes, this case does not involve the admission of either the tapes of those conversations or testimony by persons who were monitoring the conversations. The question presented to this Court involves the admissibility of testimony by the police officer who personally participated in conversations with the defendant.

The principal Florida case in the area of warrantless electronic eavesdropping is State v. Sarmiento, 397 So.2d 643 (Fla.1981). The Court in Sarmiento reversed the conviction because the testimony of the monitoring officers was improper, but the admittance of testimony by an undercover agent concerning the contents of his conversation with the defendant was expressly approved:

The defendant without question assumed the risk that this officer might betray the defendant’s trust and reveal, as he did, the contents of this conversation to the outside world. That, in our view, is a reasonable risk which any person assumes when he talks to anyone as the speaker has it within his power to gauge whether to take such a risk based upon his personal assessment of the person to whom he is talking. As such, there was no invasion of the defendant’s privacy (and thus no, “interception” in the constitutional sense) for the officer to listen to and later testify, as he did, to the content of the defendant’s conversation in the home.

See also Odom v. State, 403 So.2d 936, (Fla.1981), where the Court held that admission of the tape itself is improper but left in tact the admission of testimony by the confidential informant who participated in the taped conversation.

The second point on appeal deals with an unusual situation concerning the defendant’s sentencing. The defendant plead nolo contendere and the trial judge pronounced his sentence (nothing unusual, so far). After sentence was pronounced, however, the trial judge told the defendant that he informed both defense counsel and the State Attorney what defendant could do in order for the judge to consider modification. Defendant was further informed by the judge that defendant had 60 days to make a decision. Defendant was told that “whether you want to go back to your wife and you want your job then is going to depend upon you, not the Court.”

Defendant argues on appeal that he kept his end of the “bargain” by agreeing to cooperate with the authorities, but that the trial judge then refused to perform his part of the agreement by denying defendant’s motion for reduction of sentence. We must affirm the trial court’s denial of the motion for reduction of sentence for jurisdictional reasons. When defendant filed the motion under Rule 3.800, Fla.R.Crim.P., notice of appeal had already been filed with this Court. Since notice of appeal vested exclusive jurisdiction in the appellate court, the trial court did not have jurisdiction to correct or modify his initial sentence. Kelly v. State, 359 So.2d 493 (Fla. 1st DCA 1978). Rule 3.800 does, however, give the defendant an opportunity to re-file his motion for reduction of sentence within 60 days after receipt of this Court’s mandate. Although we do not have a sufficient record to evaluate the factual basis for defendant's claim, we do note that if the allegations are true his contention is not without arguable merit. See Williams v. State, 341 So.2d 214 (Fla.2d DCA 1977) and cases cited therein.

AFFIRMED.

SHAW, J., and VICTOR M. CAWTHON, Associate Judge, concur.