text:
    John SIMMONS, et al., Appellants, v. The DIVISION OF PARI-MUTUEL WAGERING, DEPARTMENT OF BUSINESS REGULATION, State of Florida, Appellee.
    No. 81-59.
    District Court of Appeal of Florida, Third District.
    Dec. 8, 1981.
    Rehearing Denied Jan. 6, 1982.
    DuFresne & DuFresne, Miami, for appellants.
    David M. Maloney, Tallahassee, for appel-lee.
    Before SCHWARTZ, BASKIN and DANIEL S. PEARSON, JJ.
   DANIEL S. PEARSON, Judge.

We are called upon to decide whether Section 550.241, Florida Statutes (Supp. 1980), is constitutional in the face of an attack by the appellants, certain owners and trainers of horses (hereafter, horsemen) that this law constitutes (1) a taking of property without just compensation; (2) an invalid exercise of the police power because not rationally related to the purpose of regulating racing; (3) an improper delegation of legislative authority to fhe Division of Pari-Mutuel Wagering; and (4) is so vague as to invite arbitrary application. These same attacks were rejected by the trial court.

The dispute concerns that part of Section 550.241, Florida Statutes (Supp.1980), which provides:

“(1) The racing of an animal with any drug, medication, stimulant, depressant, hypnotic, narcotic, local anesthetic, drug masking agent, or any substance foreign to the natural horse or dog is prohibited.... Rules may be promulgated which identify:
“(a) Unacceptable levels of substances existing naturally in the untreated dog or horse but at abnormal physiological concentrations, or
“(b) Acceptable levels of trace elements or innocuous substances in test samples.”

I.

The horsemen’s challenges that (1) the law is a “taking” without compensation, and (2) the law is not a valid exercise of police power because not rationally related to the purpose of regulating racing are met by the Division’s assertion that even assuming a property right, all property rights are subject to the valid exercise of the Legislature’s police powers. Thus, says the Division, there is no “taking” requiring compensation if the police power is validly exercised.

The State, “in the interest of protecting both the health of thoroughbred horses and the integrity of the sport from which the state derives revenues . . . has a valid objective in seeking to prevent drugging of race horses.” Division of Pari-Mutuel Wagering v. Caple, 362 So.2d 1350, 1355 (Fla.1978). Since this objective is valid, the only remaining questions are whether (a) an absolute ban of drugs and medication and (b) an absolute ban on any substance foreign to the natural horse or dog are reasonable means of attaining that objective. In determining the reasonableness of legislation aimed at the regulation of pari-mutuel wagering, the Florida Supreme Court has held that:

“The state has become peculiarly interested in racing because of the revenues from the pari-mutuel betting. Authorized gambling is a matter over which the state may exercise greater control and exercise its police power in a more arbitrary manner because of the noxious qualities of the enterprise as distinguished from the enterprises not affected with the public interest and those enterprises over which the exercise of the police power is not so essential for the public welfare.” (emphasis supplied).

Hialeah Racing Course, Inc. v. Gulfstream Park Racing Association, Inc., 37 So.2d 692 (Fla.1948), appeal dismissed, 336 U.S. 948, 69 S.Ct. 885, 93 L.Ed. 104 (1949). Therefore, while it is conceivable that the objective of preventing drugging could be attained by less stringent means, given the Legislature’s great power to regulate racing and its determination that the practice of drugging animals corrupts the sport, we certainly cannot say that to prohibit the racing of an animal with drugs is not rationally related to the regulation of racing or is an unreasonable means to accomphsh that regulation. However, we must find otherwise in respect to the prohibition of “any substance foreign to the natural horse or dog.” While the Legislature’s exercise of power will be declared invalid only when shown to be arbitrary and unreasonable, McInerney v. Ervin, 46 So.2d 458 (Fla.1950), a law is unreasonable where it is not rationally related to the purpose of the act. Reed v. Reed, 404 U.S. 71, 92 S.Ct. 251, 30 L.Ed.2d 225 (1971); Southern Railway Co. v. Greene, 216 U.S. 400, 30 S.Ct. 287, 54 L.Ed. 536 (1910).

In Horsemen’s Benevolent and Protective Association, Florida Division v. Division of Pari-Mutuel Wagering, Department of Business Regulation, 397 So.2d 692 (Fla.1981), the court invalidated Section 550.-2615, Florida Statutes (Supp.1978). The statute provided that each racing licensee pay one per cent of any purse won to a horsemen’s association. The funds were then to be used “in accordance with the stated goals” of the association. The Division argued that the statute would encourage the year-round stalling of horses in Florida, which would further development of a year-round racing program in the state. The court acknowledged that was a valid objective, but held the act was not a reasonable means of accomplishing that goal, since there was no requirement that the funds be spent consistent with enhancing state revenues.

Applying this same test to Section 550.-241, it is indisputable that the objectives of this statute are valid. The avowed purposes of the act are to preserve the integrity of the sport of racing from corruption, to keep the wagering public from being misled, to reduce the risk of injury, and to protect the animals from cruel and inhumane treatment. To prohibit “any substance foreign to the horse” is to prohibit everything, the helpful and the harmful, the beneficial and the detrimental, the benign and the deleterious. When measured against the articulated reasons for the enactment of the statute, that part of the statute banning any foreign substance cannot be said to bear a fair and substantial relationship to the objectives sought. Department of Business Regulation v. National Manufactured Housing Federation, Inc., 370 So.2d 1132 (Fla.1979); Shevin v. International Inventors, Inc., 353 So.2d 89 (Fla.1977); State ex rel. Parker v. Frick, 150 Fla. 148, 7 So.2d 152 (1942). See Kuster Enterprises, Inc. v. State of Florida, Department of Transportation, 357 So.2d 794 (Fla. 1st DCA 1978).

We decide, however, that the inclusion of this irrational ban on any foreign substance does not require us to declare all of Section 550.241, Florida Statutes (Supp.1980), invalid. Applying the severability test of Cramp v. Board of Public Instruction of Orange County, 137 So.2d 828 (Fla.1962), see also State v. Champe, 373 So.2d 874 (Fla.1979); State v. Lee, 356 So.2d 276 (Fla.1978), we find that the invalid clause, that is, “or any substance foreign to the natural horse or dog,” can be separated from the remaining valid provisions; the legislative purpose expressed in the valid provisions can be accomplished independently of the. invalid clause; the invalid clause is separable in substance from the valid clause so as to permit the conclusion that the Legislature would have passed one without the other; and Section 550.241 will be complete in itself after the invalid clause is stricken.

II.

The horsemen next challenge Section 550.241 as being an unlawful delegation of rulemaking authority, because, they contend, it does not contain “adequate standards to guide the agency in [its] execution of the powers delegated.” But this general rule requiring that express guidelines and standards be enunciated by the Legislature is inapplicable to the present case. As this court so recently said in upholding the constitutionality of Section 550.02(3), Florida Statutes (1977), in the face of an identical attack:

“Legalized gambling operates only by permission of the state. An agency may . .. exercise police powers in furtherance of the statutory purpose despite the absence of specific guidelines. We hold that Section 550.02(3) constitutes a valid delegation of authority to the agency.”

Solimena v. State of Florida, Department of Business Regulation, Division of PariMutuel Wagering, 402 So.2d 1240, 1247 (Fla. 3d DCA 1981). Our approval in Solimena of the broad delegation to the Division of Pari-Mutuel Wagering to

“... make rules and regulations for the control, supervision and direction of all applicants, permittees and licensees, and for the holding, conducting and operating of all racetracks, race meets, races held in this state . ... ”

requires, a fortiori, our holding here that the more restrictive delegation found in Section 550.241, Florida Statutes, is not unlawful.

Our holding that an attack on a statute grounded on the doctrine of non-delegation does not lie would not, of course, preclude the horsemen from making the quite different attack that some rule promulgated by the Division pursuant to its grant of authority is not “reasonably appropriate to the accomplishment of the purposes of the act.” State ex rel. Mason v. Rose, 122 Fla. 413, 165 So. 347 (1936); see Division of Pari-Mutuel Wagering v. Caple, supra; Solimena v. State of Florida, Department of Business Regulation, Division of Pari-Mutuel Wagering, supra. But, as we have noted, see n. 2, supra, this appeal presents no such issue, the horsemen’s challenges being to the statute.

Accordingly, we declare unconstitutional that clause of Section 550.241, Florida Statutes (Supp.1980), which prohibits the racing of any animal with “any substance foreign to the natural horse or dog.” In all other respects, we hold the statute to be constitutional and affirm the judgment of the trial court.

Affirmed in part; reversed in part.

      . The horsemen also attack the constitutional!ty of Section 550.24, Florida Statutes (Supp. 1980), which, inter alia, makes criminal the administration of “any medication or drugs prohibited by law” for the purpose of affecting the outcome of a race. No separate analysis of the attack on this statute is required.

      . The parties disagree whether a rule, Rule 7E-1.09(9), was actually promulgated or merely proposed by the Division. The trial court did not address the substance of the rule, which, whether proposed or promulgated, has since been changed, and the validity of the rule itself is not an issue on this appeal. We do note in passing that to the extent Rule 7E-1.09(9) permitted a horse to run in a race with two micrograms or less of phenylbutazone or oxyphenbu-tazone per milliliter of plasma in the body, it allowed that which the statute prohibits and was at least to that extent invalid.

      . The Division also asserts that since the Legislature may prohibit racing altogether, the right to race horses is a privilege. Since racing is a privilege, the owners and trainers have no property right which is being taken. The privilege versus right argument was rejected in Barry v. Barchi, 443 U.S. 55, 99 S.Ct. 2642, 61 L.Ed.2d 365 (1979). As Justice Brennan, joined by three other members of the court, noted in a concurring opinion:
      “[The New York State Racing and Wagering Board] seek[s] to avoid [the licensee’s right to due process] by characterizing the appel-lee’s license as a ‘privilege’ and arguing that one who has accepted the benefits of a license is precluded from challenging the conditions attached to it, including the procedures for suspension and revocation, (citations omitted). The Court properly rejects this contention — indeed, does not even mention it. Board of Regents v. Roth, 408 U.S. 564, 92 S.Ct. 2701, 33 L.Ed.2d 548 (1972), emphasized that ‘the Court has fully and finally rejected the wooden distinction between “rights” and “privileges” that once seemed to govern the applicability of procedural due process rights.’ ” 443 U.S. at 70-71, 99 S.Ct. at 2652.
      Although the context of Barry was procedural due process, not “taking without compensation,” it is no less persuasive for the proposition that the privilege versus right analysis is outdated.

      .In Caple, supra, the court held that administrative rules of the Division of Pari-Mutuel Wagering making thoroughbred horse trainers absolute insurers when certain rule violations occur “constitute a reasonable means of eliminating or minimizing the possibility of illegal drugging by placing total responsibility on the person most capable of controlling the problem.” 362 So.2d at 1356.

      . The Legislature’s findings, a preamble to the creation of Section 550.241, Florida Statutes (Supp.1980), are:
      “(1) The practice of drugging or medicating a racing animal prior to a race:
      “(a) Corrupts the integrity of the sport of racing and promotes criminal fraud in such sport,
      “00 Misleads the wagering public and those desiring to purchase such animal as to the condition and ability of such animal,
      “(c) Poses an unreasonable risk of serious injury or death to the rider of such animal if a horse and to the riders of other horses competing in the same race, and
      “(d) Is cruel and inhumane to the animal so drugged or medicated;
      “(2) The practice of drugging or medicating a racing animal prior to a race adversely affects the interests of the State; and
      “(3) Criminal penalties and other sanctions are necessary in order to prevent and eliminate such practices.”
      Ch. 80-270, § 1, Laws of Fla.

      . The horsemen challenge Section 550.241 on vagueness grounds as well. A prior rule which prohibited the racing of a horse with any “narcotic, stimulant, depressant or local anesthetic” survived a similar challenge in Calfin v. State, Department of Business Regulation, 391 So.2d 739 (Fla. 4th DCA 1980). The clause prohibiting “any substance foreign to the natural horse or dog” can be said to be vague only in the sense that its open-endedness makes it impossible to determine whether the ban is rationally related to the purpose of the act. Because we hold the clause invalid based on the vice of no rational relationship, see infra, we need not separately address the vagueness attack.

      . The Division says that this challenge was not made in the court below and cannot be raised for the first time here. We find such a challenge in the horsemen’s complaint, as well as in their memorandum in support of their motion for summary judgment. Indeed, the Division directly responded to this challenge in its motion for summary judgment. The trial court, in its final judgment, upholding the constitutionalify of the statute, specifically held the delegation lawful.

      . Indeed, prior to Solimena, in every case in which a rule of the Division of Pari-Mutuel Wagering was challenged, the inquiry has been whether the rule in question was reasonably appropriate to the accomplishment of the purposes of the act, not whether the statute offended the doctrine of non-delegation. See Di

        vision of Pari-Mutuel Wagering v. Caple, supra; Department of Business Regulation v. Vandervoort, 273 So.2d 66 (Fla.1973); Hialeah Racing Course, Inc. v. Gulfstream Park Racing Association, Inc., supra; State ex rel. Palm Beach Jockey Club, Inc. v. Florida State Racing Commission, 158 Fla. 335, 28 So.2d 330 (1946); State ex rel Hollywood Jockey Club, Inc. v. Stein, 133 Fla. 530,182 So. 836 (1938); State ex rel. Allen v. Rose, 123 Fla. 544, 167 So. 21 (1936); State ex rel Mason v. Rose, supra; Calfin v. State, Department of Business Regulation, supra. Implicit in these cases was that specific guidelines in the statute were unnecessary. In Soiimena, that was made clear.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    The STATE of Florida, Appellant, v. Hector CASTELLANO, Appellee.
    No. 81-60.
    District Court of Appeal of Florida, Third District.
    Dec. 8, 1981.
    Jim Smith, Atty. Gen. and Joel D. Rosen-blatt, Asst. Atty. Gen., for appellant.
    Bennett H. Brummer, Public Defender and Andrew M. Kassier, Asst. Public Defender, for appellee.
    Before HUBBART, C. J., and SCHWARTZ and JORGENSON, JJ.
   PER CURIAM.

Reversed. U. S. v. Agurs, 427 U.S. 97, 96 S.Ct. 2392, 49 L.Ed.2d 342 (1976); State v. Sobel, 363 So.2d 324 (Fla.1978); State v. Brown, 393 So.2d 1195 (Fla. 3d DCA 1981); State v. Cooper, 391 So.2d 332 (Fla. 3d DCA 1980).


text:
    Kevin SCOTT, Appellant, v. The STATE of Florida, Appellee.
    No. 81-141.
    District Court of Appeal of Florida, Third District.
    Dec. 8, 1981.

      Bennett H. Brummer, Public Defender, Harold Mendelow and Harold Solomon, Sp. Asst. Public Defenders, for appellant.
    Jim Smith, Atty. Gen. and Alan T. Lip-son, Asst. Atty. Gen., for appellee.
    Before HUBBART, C. J., and SCHWARTZ and JORGENSON, JJ.
   PER CURIAM.

The appellant Kevin Scott appeals a judgment of conviction and sentence for attempted burglary entered in the Circuit Court for the Eleventh Judicial Circuit of Florida. Scott raised four points for reversal of his conviction, none of which we find persuasive. In the Interest of M. E., 370 So.2d 795 (Fla.1979); Henderson v. State, 304 So.2d 537 (Fla.3d DCA 1974); Stunson v. State, 228 So.2d 294 (Fla.3d DCA 1969), cert. denied, 237 So.2d 179 (Fla.1970); Crum v. State, 172 So.2d 24, 25 (Fla.3d DCA), cert. denied, 179 So.2d 218 (Fla.1965).

In addition, Scott’s attack on his sentence based on Villery v. The Florida Probation & Parole Commission, 396 So.2d 1107 (Fla.1981), will not be entertained upon this appeal, although on its face it appears to be well-founded, in view of the representations of his counsel that Scott himself did not specifically authorize this attack after being fully advised of the more severe sentence which could be imposed upon resentencing by the trial court should the original sentence be vacated. We, therefore, treat the Villery point as not having been made here without prejudice to Scott to file a motion to vacate his sentence under Fla.R.Crim.P. 3.850 based on Villery after being fully advised in the premises.

Affirmed.


text:
    Max Rivero RODRIGUEZ, Appellant, v. The STATE of Florida, Appellee.
    No. 81-281.
    District Court of Appeal of Florida, Third District.
    Dec. 8, 1981.
    Louis Casuso and John Lipinski, Miami, for appellant.
    Jim Smith, Atty. Gen. and Alan T. Lip-son, Asst. Atty. Gen., for appellee.
    Before HUBBART, C. J., and BARK-DULL and SCHWARTZ, JJ.
   PER CURIAM.

Affirmed. Carter v. State, 370 So.2d 1181 (Fla. 4th DCA 1979); Ingraham v. State, 364 So.2d 821 (Fla. 4th DCA 1978); Phillips v. State, 360 So.2d 1310 (Fla. 1st DCA 1978); State v. Francois, 355 So.2d 127 (Fla.3d DCA 1978); State v. Williams, 303 So.2d 74 (Fla.3d DCA 1974); Williams v. State, 294 So.2d 37 (Fla.3d DCA 1974).


author: FERGUSON, Judge.

text:
    Martine LACORE, Appellant, v. GIRALDA BAKE SHOP, INC., Appellee.
    No. 81-772.
    District Court of Appeal of Florida, Third District.
    Dec. 8, 1981.
    Rehearing Denied Jan. 6, 1982.
    Paul & Thomson and Henry N. Adorno and Raul A. Arencibia, Miami, for appellant.

      Martin Levinson and Stephen R. Schneider, Miami, for appellee.
    Before DANIEL S. PEARSON, FERGUSON and JORGENSON, JJ.
   FERGUSON, Judge.

Martine Lacore appeals from an order of the trial court denying her motion for relief from a final judgment of default entered in favor of appellee Giralda Bakeshop, Inc.

In August, 1979, Theodore Alder as president of the appellee corporation sold Giral-da Bakeshop, Inc. (the bakery business, its name, equipment, tangible assets and goodwill) to Giralda French Bakery and Pastry, Inc., Robert Lacore and Martine Lacore. At the closing, the Lacores executed a promissory note for $82,000.00 as the balance of the purchase price and a security agreement listing as collateral all the equipment and tangible assets of the bakery. The parties also executed a lease with the Lacores and Giralda French Bakery and Pastry, Inc. as lessees and Theodore Alder and Addy Alder as lessors.

When the new owners failed to make the first payment on the note, the appellee sued for default and an order of default was entered on May 8, 1980. On May 14, 1980 the appellee was awarded a final judgment of default for the sum of $82,000.00 together with interest up to the date of this judgment in the amount of $5,466.66 and costs in the amount of $84.50, and attorney’s fees of $2,500.00. In January of 1981, the appellant filed an answer and counterclaim and moved for relief from the final default judgment under Florida Rules of Civil Procedure 1.540(b). Appellant attached an affidavit to the motion for relief.

A party seeking to set aside a default judgment under Florida Rules of Civil Procedure 1.540(b)(1) must demonstrate that the neglect to respond to the order of default was excusable and that there exists a meritorious defense. The court will also consider whether the movant subsequently demonstrated due diligence in seeking relief. B.C. Builders Supply Co., Inc. v. Maldonado, 405 So.2d 1345 (Fla.3d DCA 1981). Here appellant states a meritorious- defense in her answer by claiming that appellees’ failure to notify her before sale or disposition of collateral listed in the security agreement precludes an action for any deficiency against her. Thomas v. Sutherland, 370 So.2d 12 (Fla. 1st DCA 1978); Washington v. First National Bank of Miami, 332 So.2d 644 (Fla.3d DCA 1976); § 679.504(3), Fla.Stat. (1979). Appellant’s statement in her affidavit that she did not respond to the order of default on the advice of her attorney is, however, not a basis for finding excusable neglect under Florida Rules of Civil Procedure 1.540(b)(1). Westinghouse Credit Corp. v. Steven Lake Masonry, Inc., 356 So.2d 1329 (Fla. 4th DCA 1978); Bailey v. Deebold, 351 So.2d 355 (Fla.2d DCA 1977); Sun Finance Corp. v. Friend, 139 So.2d 484 (Fla.3d DCA 1962).

The lack of excusable neglect is not fatal to appellant’s quest for relief. Appellant also claims relief from the judgment of default under Florida Rules of Civil Procedure 1.540(b)(3). By affidavit, appellant claims appellee had taken possession of the bakery and repossessed and sold the equipment before initiating its complaint for damages and that by failing to inform the court of these actions, appellee misrepresented to the court the amount and nature of the monetary obligation of appellant and other named defendants.

Rule 1.540(b)(3) is a rule providing for equitable relief and is to be liberally construed. See, e.g., Pearlman v. Mount Sinai Hospital of Greater Miami, Inc., 405 So.2d 764 (Fla.3d DCA 1981). The nature of a default judgment is such that a misleading statement by affidavit as to the amount of damages constitutes a misrepresentation by an adverse party for purposes of Rule 1.540(b)(3). See, e.g, Kimbrough v. McCranie, 325 So.2d 70 (Fla. 1st DCA 1976); Alexander v. First National Bank of Titus- ville, 275 So.2d 272 (Fla. 4th DCA 1973). We do not suggest that anytime a defendant fails to assert a meritorious affirmative defense of set-off, he may subsequently move for vacation of an adverse judgment under Rule 1.540(b)(3). In this case, the existence of a security agreement appears on, and is made part of, the promissory note. Under these circumstances, appellee’s affidavit of proof and cost stating only that Adler elected to accelerate the payment of the balance when the first installment was not paid and that “to this date, I have not received any payments of any type on this note,” without indicating that he had in fact repossessed the collateral and sold it in partial satisfaction of the indebtedness is a misrepresentation to the court of the amount of damages.

Appellant moved to vacate the default judgment within one year as required by the rule. Accordingly, we reverse the final judgment of default entered by the trial court and remand so that damages may be determined in accordance with Florida Rules of Civil Procedure 1.500(e).

Reversed and remanded for proceedings consistent with this opinion.

      . Fla.R.Civ.P. 1.540(b)(3) provides that a court may set aside a final judgment for fraud ...., misrepresentation or other misconduct of an adverse party.


text:
    Jose REITOR, Appellant, v. The STATE of Florida, Appellee.
    No. 81-789.
    District Court of Appeal of Florida, Third District.
    Dec. 8, 1981.
    Bennett H. Brummer, Public Defender and Lawrence Besser, Asst. Public Defender, for appellant.
    Jim Smith, Atty. Gen. and Steven R. Jacob, Asst. Atty. Gen., for appellee.
    Before HENDRY, NESBITT and BAS-KIN, JJ.
   PER CURIAM.

Affirmed. Goodman v. State, 399 So.2d 1120 (Fla. 4th DCA 1981).


author: NESBITT, Judge.

text:
    Charles NUZUM, John Harris, and Sergio Abreu, Petitioners, v. Rene VALDES and Florida Beverage License, Inc., a Florida corporation, Respondents.
    No. 81-861.
    District Court of Appeal of Florida, Third District.
    Dec. 8, 1981.

      Harold F. X. Purnell, Tallahassee, for petitioners.
    Donsky & Diner and Manuel Diner, Miami, for respondents.
    Before HENDRY, NESBITT and JOR-GENSON, JJ.
   NESBITT, Judge.

The petitioners are, respectively, the Director of the Division of Alcoholic Beverages and executive employees of the Division. The respondents, Valdes and Florida Beverage License, Inc., commenced a civil action against the petitioners personally alleging an interference with advantageous business relationships as well as the intentional tort of conspiracy. The complaint alleges that they acted in bad faith and with a malicious purpose. On motion of the plaintiffs, the trial court entered an order prohibiting staff counsel from the Department of Business Regulation from the further representation of the petitioners in their individual capacities. We have entertained the petitioners’ application for common law certiorari and review this order because we have determined it constitutes a material injury not remediable after final JUDGEMENT.

Section 111.07, Florida Statutes (1979) provides, in pertinent part:

Any agency of the state, or any county, municipality, or political subdivision of the state is authorized to provide an attorney to defend any civil actions brought against any of its officers, employees, or agents for acts or omissions arising out of and in the scope of their employment or function, unless, in the case of a tort action, such officer, employee, or agent acted in bad faith, with malicious purpose, or in a manner exhibiting wanton and willful disregard of human rights, safety, or property.

This statute recognizes the common law principle that a public officer is entitled to representation at the public expense in a lawsuit arising from performance of official duties while serving a public purpose. Markham v. State, Department of Revenue, 298 So.2d 210 (Fla. 1st DCA 1974); Duplig v. City of South Daytona, 195 So.2d 581 (Fla. 1st DCA 1967). To deny a public official representation for acts purportedly arising from the performance of his official duties would have a chilling effect upon the proper performance of his duties and the diligent representation of the public interest.

Our study of the statute leads us to conclude that it was the intention of the Legislature that the primary determination as to the allowance of counsel be placed in the respective governmental unit rather than with the judiciary upon challenge by a private litigant. Our view is buttressed by the fact that a court is not in a position to determine whether an officer, agent, servant, or employee has acted in bad faith or with a malicious purpose until the case has been terminated upon the merits. At such a point, legal services then being provided by the agency have been substantially concluded. Consequently we find that the activation of the statute is primarily an executive function.

For the foregoing reasons, the order prohibiting staff counsel of the Florida Department of Business Regulation from representing the director and employees of one of its divisions personally constitutes a departure from the essential requirements of law for which we award them certiorari and quash the order.

      . This of course does not preclude other properly authorized public officials like the attorney general from challenging expenditures made thereunder. See Ellison v. Reid, 397 So.2d 352 (Fla. 1st DCA 1981).


text:
    Bienvenido RODRIGUEZ, Appellant, v. The STATE of Florida, Appellee.
    No. 81-935.
    District Court of Appeal of Florida, Third District.
    Dec. 8, 1981.

      Mishkin & Buri, Miami, for appellant.
    Jim Smith, Atty. Gen., and Steven R. Jacob, Asst. Atty. Gen., for appellee.
    Before HUBBART, C. J., and SCHWARTZ and FERGUSON, JJ.
   FERGUSON, Judge.

This appeal is from an adjudication and sentence for trafficking in narcotics following a jury verdict of guilty. The pertinent facts are as follows.

Officer Hewes of the Dade County Public Safety Department, while on routine patrol in the area of S.W. 280th Street and Biscayne Bay, came upon two trucks, a dump truck and a pick-up truck, both of which appeared to be abandoned. He looked into the dump truck and saw a number of bales of what he knew, based on experience, to be marijuana. He summoned a police helicopter. Hewes and Officer Woods, the helicopter pilot, while flying around the area observed a twenty-five foot boat about three-fourths of a mile from where the marijuana had been discovered. The boat was the only one in the area and was “low in the water leaving a big wake.” Two men were on the boat one being appellant who was the operator. The boat was loaded with what appeared to be marijuana bales. Appellant was sitting atop one of the bales when he was observed by the officers. Officer Woods was familiar with marijuana and the customary packaging of the substance in burlap bales, which bales were visible from the air. As the. helicopter drew closer appellant accelerated in an attempt to flee the police aircraft. The officers could smell a strong odor of marijuana while they were more than twenty feet away from the boat. A walkie-talkie found in the boat was keyed to the same frequency as a walkie-talkie found in the truck.

In response to the points on appeal, we hold (1) there was probable cause for the seizure, Albo v. State, 379 So.2d 648 (Fla.1980), (2) lawful custodial arrest justifies the infringement of any privacy interest the arrestee may have as to containers within his reach, New York v. Belton, - U.S. -, 101 S.Ct. 2860, 69 L.Ed.2d 768 (1981), and (3) the facts presented by the state were sufficient circumstantial evidence of appellant’s knowledge and ability to control the contraband to sustain a conviction for joint possession. Winchell v. State, 362 So.2d 992 (Fla. 3d DCA 1978), cert. denied, 370 So.2d 462 (Fla.1979); Frank v. State, 199 So.2d 117 (Fla. 1st DCA 1967).

Affirmed.


author: BARKDULL, Judge.

text:
    Harold Elwood ALDRIDGE, Appellant, v. The STATE of Florida, Appellee.
    No. 81-1033.
    District Court of Appeal of Florida, Third District.
    Dec. 8, 1981.

      William Kuypers, Key West, for appellant.
    Jim Smith, Atty. Gen., and Paul Mendel-son, Asst. Atty. Gen., for appellee.
    Before BARKDULL, SCHWARTZ and DANIEL S. PEARSON, JJ.
   BARKDULL, Judge.

This is an appeal from an order denying the appellant’s petition for habeas corpus and remanding him to the custody of the Sheriff of Monroe County for extradition to the State of North Carolina. On October 30, 1980, a Florida Highway Patrol officer was on patrol in Monroe County when he observed a motor vehicle which was the subject of a teletype request from the State of North Carolina. The request sought arrest of the appellant on drug charges. The officer stopped the vehicle and spoke to the driver (the appellant’s wife), who agreed to take the officer to her husband. Upon arriving at the appellant’s residence, the officer arrested the appellant and took him to Key West. An executive warrant for rendition of the appellant to North Carolina was issued by the Governor of Florida. Subsequent thereto, the appellant filed a petition for writ of habeas corpus, challenging the Governor’s warrant and supporting documents. He also alleged he was not present in the demanding State when the offense alleged was committed and that he was not the same person named in the warrants. In support thereof the appellant filed a sworn affidavit that he was not present in the demanding State on the date of the alleged offense and that he was not the person named in the warrant.

At hearing on the petition for writ of habeas corpus, the appellant requested an evidentiary hearing on the question of whether or not the appellant was present in the demanding State at the time of the offense. The trial court refused such a hearing, being of the opinion that the bare allegation of absence from the demanding State at the time of the alleged offense was insufficient to refute the prima facie case that the appellant was present in the demanding State, which arises out of the issuance of the executive warrant. See: Kohler v. Sandstrom, 305 So.2d 76 (Fla.3d DCA 1975); Bonazzo v. Michell, 221 So.2d 186 (Fla. 4th DCA 1969). Based thereon, the trial court entered the order appealed.

We find the trial court erred in denying the appellant an evidentiary hearing at which he could attempt to refute the prima facie case made by the executive warrant. Before a person may lawfully be taken from the State in which he is residing to another State to stand trial on a criminal charge in the demanding State, the fact that he was or was not present in the demanding State must be established when he challenges that charge in a habeas , corpus proceeding. His sworn denial thereof, in response to the averments in the executive warrant, presents an issue upon which he has a right to offer testimony in support thereof. See: Trice v. Blackburn, 153 So.2d 32 (Fla.2d DCA 1963); State v. McGreary, 123 Fla. 9, 165 So. 904 (1936); Chase v. State, 93 Fla. 963, 113 So. 103 (1927); Kuney v. State, 88 Fla. 354, 102 So.2d 547 (1924). It may be that upon another hearing further legal evidence may be available and may be introduced into evidence by either or both sides on this question, thereby raising a conflict which would result in an order of remand for extradition [see: Bonazzo v. Michell, supra; Buchanan v. State, 185 So.2d 509 (Fla.3d DCA 1966); State v. Starr, 65 So.2d 67 (Fla.1953)], but that determination can be made only after the appellant has been afforded his right to an evidentiary hearing.

It is not necessary for us to determine the other point raised by the appellant, in light of the foregoing. Therefore, the order appealed is reversed and remanded to the trial court for further proceedings not inconsistent herewith.

Reversed and remanded.


author: PER CURIAM. FERGUSON, Judge

text:
    RHITA B. BEHRMAN INTERIORS, INC., and Rhita B. Behrman, individually, Appellants, v. BRAMAN CADILLAC, INC., Appellee.
    No. 81-1066.
    District Court of Appeal of Florida, Third District.
    Dec. 8, 1981.
    Thomas H. Connors, Miami, for appellants.
    Greenberg, Traurig, Askew, Hoffman, Li-poff, Quentel & Wolff and Ronald B. Ravi-koff, Miami, for appellee.
    Before BARKDULL, HENDRY and FERGUSON, JJ.
   PER CURIAM.

This appeal questions the correctness of a judgment on the pleadings rendered in favor of the appellee in an action for an alleged breach of contract to give a free 1980 Toyota with each purchase of a new 1979 Cadillac or a demonstrator pursuant to an advertisement placed in a newspaper by appellee which read as follows:

SATURDAY ONLY
CHRISTMAS SPECIAL
Buy any new 1979 Cadillac
or 1979 Cadillac Demo...
Get a Brand New 1980
TOYOTA
TERCEL
FREE!

A careful examination of the pleadings conclusively establishes that there is no genuine triable issue as to any material facts, and that appellee is entitled to a judgment on the pleadings as a matter of law. Accordingly, the judgment appealed is affirmed. Williams v. Howard, 329 So.2d 277 (Fla.1976); American Housing Systems Corp. v. Country Club of Miami Corp., 342 So.2d 1026 (Fla. 3d DCA 1977); Barentine v. Clements, 328 So.2d 878 (Fla. 2d DCA 1976); Bradham v. Hayes Enterprises, Inc., 306 So.2d 568 (Fla. 1st DCA 1975).

Affirmed.

FERGUSON, Judge

(specially concurring).

While agreeing with the majority that plaintiff has no cause of action on a contract theory, I believe appellee’s advertisement, for failure to set forth the conditions in connection with the “free” automobile, is misleading and therefore violates state law. § 817.415, Fla.Stat. (1979).


text:
    Jeffrey J. SCHWARTZ, Appellant, v. The BABCOCK COMPANY and Department of Labor and Employment Security, State of Florida, Unemployment Appeals Commission, Appellees.
    No. 81-1222.
    District Court of Appeal of Florida, Third District.
    Dec. 8, 1981.
    Mark Alan Levine, Pompano Beach, for appellant.
    James R. Parks and Norman A. Blessing, Tallahassee, for appellees.
    Before HUBBART, C.J., and FERGUSON and JORGENSON, JJ.
   PER CURIAM.

Affirmed. Florida State University v. Jenkins, 323 So.2d 597 (Fla. 1st DCA 1975); Luzier v. Florida Department of Commerce, Industrial Relations Commission, 307 So.2d 503 (Fla.2d DCA 1975); §§ 443.07(4)(b) and (4)(c), Fla.Stat. (1979).


author: SCHWARTZ, Judge.

text:
    Leonard FRANTZ, D.D.S., Petitioner, v. Carol Jean GOLEBIEWSKI, Respondent.
    No. 81-1643.
    District Court of Appeal of Florida, Third District.
    Dec. 8, 1981.

      Carey, Dwyer, Cole, Selwood & Bernard and Michael C. Spring, Miami, for petitioner.
    Bartel & Shuford and Mark Kamilar, Miami, for respondent.
    Before BARKDULL, SCHWARTZ and NESBITT, JJ.
   SCHWARTZ, Judge.

This petition for common law certiorari presents the question of whether discovery of the testimony of a personal injury-plaintiffs treating physician is controlled by Fla. R.Civ.P. 1.280(b)(3), the so-called expert witness-discovery rule. We hold that it is not and therefore quash the orders under review which reflect the trial judge’s contrary determination.

The respondent, Carol Golebiewski, was allegedly negligently treated by an orthodontist, Dr. Frantz. Subsequently, she selected and was treated for those injuries by another dentist, Dr. Peter Rubelman. After she brought a dental malpractice action against Dr. Frantz, the defendant’s attorneys — without notice to the plaintiff — took a sworn court reporter’s statement from Dr. Rubelman. When this was discovered, the plaintiff moved, and the trial court ordered that the statement be provided to Ms. Gole-biewski’s attorney. Frantz’s lawyer refused, whereupon the trial judge fined the defendant $150.00; ordered that the statement not be used for any purpose, including impeachment, during the litigation; and required notice to the opposition prior to taking any recorded statement of other treating physicians. In our view, these discovery orders represent a departure from the essential requirements of the law and are effectively unreviewable on appeal from a future final judgment. Hence, certiorari is granted. E.g., Allstate Ins. Co. v. Gibbs, 340 So.2d 1202 (Fla. 4th DCA 1976), cert. dismissed, 354 So.2d 980 (Fla.1977); Allstate Ins. Co. v. Shupack, 335 So.2d 620 (Fla.3d DCA 1976).

It is conceded that the actions of the defendant, both past and proposed, were entirely proper if Dr. Rubelman is correctly treated as a run-of-the-mill eye, ear, or other witness to the events which are the subject of the pending litigation. Counsel are free to speak to and record the statements of any such witness who is willing to make them. The plaintiff successfully contended below, however, that a physician is not an ordinary but an expert witness to whom different rules apply. In support of that proposition she relies upon Fla.R.Civ.P. 1.280(b)(3), the introductory paragraph of which states:

Trial Preparation: Experts. Discovery of facts known and opinions held by experts, otherwise discoverable under the provisions of subdivision (b)(1) of this rule and acquired or developed in anticipation of litigation or for trial, may be obtained only as follows [e.s.]

This rule does not apply to this situation. As it specifically says, it concerns not all “information and opinions held by experts,” but only those “acquired and developed in anticipation of litigation or for trial,” as in the case of an expert retained by counsel. Zuberbuhler v. Division of Administration, State Department of Transportation, 344 So.2d 1304 (Fla.2d DCA 1977), cert. denied, 358 So.2d 135 (Fla.1978); see generally, Binger v. King Pest Control, 401 So.2d 1310 (Fla.1981). In contrast to an “examining physician,” who falls within this latter category, a treating doctor like Rubelman, while unquestionably an expert, does not acquire his expert knowledge for the purpose of litigation but rather simply in the course of attempting to make his patient well. See generally, Marine Exploration Co. v. McCoy, 308 So.2d 43 (Fla.3d DCA 1975); Marshall v. Papineau, 132 So.2d 786 (Fla. 1st DCA 1961). Just this distinction was drawn in the Advisory Committee’s explanatory statement concerning Federal Rule 26(b)(4), which is identical to Fla.R. Civ.P. 1.280(b)(3).

It should be noted that the subdivision does not address itself to the expert whose information was not acquired in preparation for trial but rather because he was an actor or viewer with respect to transactions or occurrences that are part of the subject matter of the lawsuit. Such an expert should be treated as an ordinary witness.

48 F.R.D. 487, 503 (1970). It seems clear that Dr. Rubelman and any other practitioner who has treated the plaintiff is just such an “actor” in the case and “viewer” of her condition who is to be “treated as an ordinary witness.” See, Leviathan, Inc. v. M/S Alaska Maru, 86 F.R.D. 8 (W.D.Wash. 1979); Barkwell v. Sturm Ruger Co., 79 F.R.D. 444 (D.Alaska 1978); Harasimowicz v. McAllister, 78 F.R.D. 319 (E.D.Pa.1978); Congrove v. St. Louis-San Francisco R. R., 77 F.R.D. 503 (W.D.Mo.1978); Norfin, Inc. v. International Business Machines Corp., 74 F.R.D. 529 (D.Colo.1977); 8 C. Wright & A. Miller, Federal Practice and Procedure § 2033 (1970); 4 Moore’s Federal Practice § 26.66[2] (2d ed. 1981); see and compare, Tahoe Ins. Co. v. Morrison-Knudsen Co., 84 F.R.D. 362 (D. Idaho 1979) (discovery from members of expert panels retained to investigate dam collapse subject to Rule 26(b)(4) as to expert opinions formulated from expertise acquired from panel service, but not as to firsthand observations and knowledge of “nature of the art” preceding incident.)

As has been noted, it follows from this conclusion that the defendant was and is not required to give notice of the taking of written statements of the witnesses in question, could not properly have been restricted in the use of Dr. Rubelman’s, and was not required to produce it to the plaintiff. As a simple “ordinary” witness statement, it was a part of the defendant’s work product protected from discovery in the absence of a showing — obviously not made here — that the plaintiff is unable to secure its equivalent without undue hardship. Fla.R.Civ.P. 1.280(b)(2); Atlantic Coast Line R. R. v. Allen, 40 So.2d 115 (Fla.1949); Transamerica Ins. Co. v. Maze, 318 So.2d 200 (Fla.2d DCA 1975); see generally, Surf Drugs, Inc. v. Vermette, 236 So.2d 108 (Fla.1970).

For these reasons, the petition is granted and the orders of June 29 and July 17,1981 are quashed.

Certiorari granted.

      . Avowedly pursuant to Fla.R.Civ.P. 1.280 and 1.380.

      . Nor is there any Florida physician-patient (or dentist-patient) privilege which would preclude such contact because of the witness’ professional relationship with the plaintiff. Morrison v. Malmquist, 62 So.2d 415 (Fla.1953); Florida Power & Light Co. v. Bridgeman, 133 Fla. 195, 182 So. 911 (1938); Fidelity and Casualty Co. of New York v. Lopez, 375 So.2d 59 (Fla. 4th DCA 1979); compare Sec. 90.503, Fla.Stat. (1979) (psychotherapist-patient privilege).
      On the other hand, no witness is obliged voluntarily to speak to counsel. As a practical matter, medical professionals almost invariably insist — as every witness has the right to do— upon a formal deposition and the payment of an appropriate witness fee before giving a statement to the party adverse to his patient. It is very likely that the present issue arose in this case either because Dr. Rubelman is a dentist presumably unfamiliar with the norms of conduct in these matters or because of the nature of the underlying litigation. Were this an automobile accident case and the doctor an orthopod or a neurologist, the parties would almost certainly not be here.

      . The remainder of Rule 1.280(b)(3) is as follows:
      (A) By interrogatories a party may require any other party to identify each person whom the other party expects to call as an expert witness at trial and to state the subject matter on which the expert is expected to testify, and to state the substance of the facts and opinions to which the expert is expected to testify and a summary of the grounds for each opinion. Upon motion, the court may order further discovery by other means, subject to such restrictions as to scope and such provisions pursuant to subdivision (b)(3)(C) of this rule concerning fees and expenses as the court may deem appropriate.
      (B) A party may discover facts known or opinions held by an expert who has been retained or specially employed by another party in anticipation of litigation or preparation for trial and who is not expected to be called as a witness at trial, only as provided in Rule 1.360(b) or upon a showing of exceptional circumstances under which it is impracticable for the party seeking discovery to obtain facts or opinions on the same subject by other means.
      (C)Unless manifest injustice would result, the court shall require that the party seeking discovery pay the expert a reasonable fee for time spent in responding to discovery under subdivisions (b)(3)(A) and (b)(3)(B) of this rule; and concerning discovery from an expert obtained under subdivision (b)(3)(A) of this rule the court may require, and concerning discovery obtained under subdivision (b)(3)(B) of this rule shall require, the party seeking discovery to pay the other party a fair part of the fees and expenses reasonably incurred by the latter party in obtaining facts and opinions from the expert.

      . Interpretations of the federal rule are persuasive in considering its Florida equivalent. Zuberbuhler v. Division of Administration, State Department of Transportation, supra (citing federal authority, including Advisory Committee notes, concerning Federal Rule 26(b)(4) in analysis of Fla.R.Civ.P. 1.280(b)(3)). See also, e.g., Pearlman v. Pearlman, 405 So.2d 764 (Fla.3d DCA 1981), and cases cited.


text:
    DEPARTMENT OF PROFESSIONAL REGULATION, an agency of the State of Florida, Appellant, v. Rene Ernesto FERNANDEZ-LOPEZ, M.D. and Division of Administrative Hearings, an agency of the State of Florida, Appellees.
    No. 81-1706.
    District Court of Appeal of Florida, Third District.
    Dec. 8, 1981.

      Colodny & Fass and Howard Talenfeld, North Miami, for appellant.
    Albury, Morgan & Hendrick, Key West, for appellees.
    Before NESBITT, FERGUSON and JOR-GENSON, JJ.
   NESBITT, Judge.

This is an appeal from a preliminary injunction entered after notice and hearing as required by Florida Rule of Civil Procedure 1.610(a) whereby the State Board of Medical Examiners was enjoined from conducting a disciplinary hearing involving one of its licensed physicians. We have jurisdiction to review the non-final order granting an injunction pursuant to Florida Rule of Appellate Procedure 9.130(a)(3)(B).

Through a verified complaint for declaratory judgment, the physician raised several issues as to the constitutionality of the manner in which he was proceeded against by the board. A temporary restraining order was issued on the basis of the board’s alleged failure to provide notice prior to the institution of agency proceedings as required by Section 120.60(6), Florida Statutes (1979).

In order for the circuit court to obtain jurisdiction to issue an injunction, it must first be shown that there is no adequate remedy at law. Gulf Pines Memorial Park, Inc. v. Oaklawn Memorial Park, Inc., 361 So.2d 695 (Fla.1978). Our review of the complaint as amended, together with the record of the proceedings before the circuit court, fails to demonstrate that an adequate remedy is not provided by Section 120.68(2), Florida Statutes (1979). However, an exception exists which allows the circuit court to obtain jurisdiction to enjoin enforcement of facially unconstitutional rules. Junco v. State Board of Accountancy, 390 So.2d 329 (Fla.1980); Gulf Pines, supra. “This is not to say that a party is free to circumvent the administrative act by conjuring up constitutional claims.” Junco, supra, at 331.

The alleged violation relied upon by the physician is not one which we deem to be of a constitutional dimension. The allegation that he was denied a good cause hearing as required by statute is not an attack on the facial constitutionality of Section 120.60(6), supra, but rather objects to the way in which the statute was applied. Since it is not a constitutional argument as contemplated by the exception, the circuit court did not have jurisdiction to enter the temporary restraining order. Moreover, the record demonstrates that the disciplinary proceeding which was allegedly commenced without a good cause hearing had been pending for sixteen months before the physician raised the issue of the failure to afford, a hearing. Under our decision in Palacios v. Florida Department of Insurance, 395 So.2d 243 (Fla.3d DCA 1981), the failure to timely raise the denial of a good cause hearing constitutes a waiver of the benefit of the statute.

The physician nonetheless attempts to support the preliminary injunction appealed from by contending that his amended complaint raised other questions demonstrating an abridgment of his constitutional rights. Our review of the record indicates that the physician failed to satisfy the requirement for an injunction that there be a real and substantial likelihood of prevailing on the merits. Under our decision in Department of Business Regulation, Division of Alcoholic Beverages and Tobacco v. Provende, Inc., 399 So.2d 1038 (Fla.3d DCA 1981), the judicially created prerequisites to obtain an injunction were not satisfied as to these vague constitutional questions.

Accordingly, the preliminary injunction appealed from is reversed with directions to dismiss the amended complaint for declaratory judgment.

      . By this opinion, we expressly refrain from resolving any constitutional questions which may have been raised by the administrative proceeding. We note that, pursuant to Section 120.68(2), Florida Statutes (1979), the physician will be free to develop and present to the district court of appeal any constitutional claims if he is ultimately aggrieved by agency action. Rice v. Department of Health and Rehabilitative Services, 386 So.2d 844 (Fla. 1st DCA 1980).


text:
    Harvey WEINER, M.D., Appellant, v. Richard T. SAVAGE, Appellee.
    No. 80-1556.
    District Court of Appeal of Florida, Fourth District.
    Dec. 9, 1981.
    Rehearing Denied Jan. 11, 1982.
    Deborah C. Poore of Fleming, O’Bryan & Fleming, Fort Lauderdale; for appellant.
    Neil Chonin, P.A., and Joseph C. Segor, Miami, for appellee.
   PER CURIAM.

Defendant appeals a final judgment in favor of plaintiff in a medical malpractice action. Plaintiff was injured in an accident involving a policeman who worked for the City of Hallandale. A suit was filed against the City of Hallandale, and a recovery secured. In a separate suit plaintiff sued his doctor, appellant herein, alleging negligence in his medical treatment of the same injury involved in the initial suit. Plaintiff obtained a verdict of $100,000 in the second suit, upon which judgment was entered. The second suit is the basis for the instant appeal.

Appellant asserts the trial court erred in failing to direct a verdict on the basis of estoppel by judgment or res judicata arising from the first suit. Appellant further contends that the court should have directed a verdict against the plaintiffs claim based upon the statute of limitations and that error occurred in the denial of a motion for mistrial based upon the conduct and argument of opposing counsel. We conclude that reversible error has not been demonstrated and affirm.

As to the issue of collateral estoppel or res judicata, we conclude that appellant failed to raise this issue by adequate pleading or proof before the trial court. Res judicata or estoppel should have been established in the answer. See Fischbein v. David Jenkins Associates, Inc., 256 So.2d 85 (Fla.3d DCA 1971), and Rule of Civil Procedure 1.110(d). Appellant’s answer denied negligence and causation and raised the affirmative defense of the statute of limitations but failed to mention res judicata or collateral estoppel. Although there was a brief comment regarding these issues in a pretrial statement they were not appropriately and properly presented at trial.

Even if we were to conclude that the issue was properly raised by the pleadings we would still have to reject appellant’s contentions on appeal because the proof was totally lacking at trial. Although available, the record of the prior case was not admitted into evidence. There was a total absence of evidence as to what injuries or damages were recovered in the first suit. As such, appellant has failed to demonstrate error as to the denial of his motion for a directed verdict on this ground.

Under his second point appellant asserts the court erred in failing to direct a verdict on the issue of the statute of limitations. There is some question as to precisely which period of limitation was applicable to this case. For the purpose of this opinion, we assume the applicable limitation period to be two years. From our review of the record, we are convinced that the time at which plaintiff was on notice so as to begin the running of the limitation period was a question of fact for the jury to decide. In accordance with Nardone v. Reynolds, 333 So.2d 25 (Fla.1976), the statute of limitations in a medical malpractice action commences when the plaintiff is on notice of the possible invasion of his legal rights. There was a definite issue of fact on this question and the court acted correctly in denying a motion for directed verdict on the issue. Pinkerton v. West, 353 So.2d 102 (Fla.4th DCA 1977).

The only other issue relates to the argument of counsel and conduct during the examination of a particular witness. Although this conduct was not to be complemented, we conclude the trial court did not commit reversible error in denying the motion for mistrial.

Reversible error has not been demonstrated and the final judgment is affirmed.

AFFIRMED.

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


text:
    Otis BROWN, Appellant, v. STATE of Florida, Appellee.
    No. 81-231.
    District Court of Appeal of Florida, Second District.
    Dec. 9, 1981.
    Jerry Hill, Public Defender, Bartow, and Robert F. Moeller, Asst. Public Defender, Tampa, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Michael J. Kotler, Asst. Atty. Gen., Tampa, for appellee.
   PER CURIAM.

The judgment and sentence is affirmed. However, in view of the fact that appellant was insolvent, the trial court erred in assessing him costs in the amount of $2.00 and requiring him to pay $10.00 to the crime compensation fund. See Brown v. State, 400 So.2d 510 (Fla. 2nd DCA 1981). The issue of whether appellant’s sentence is illegal under Villery v. Florida Parole & Probation Commission, 396 So.2d 1107 (Fla.1981) is raised for the first time on appeal. Because Villery suggests that our supreme court contemplated that this issue be brought to the attention of the trial court in the first instance, we do not consider it on appeal.

Accordingly, the judgment and sentence is affirmed. That portion of the order assessing court costs and requiring appellant to pay into the crime compensation fund is stricken. This affirmance is without prejudice to appellant’s raising the Villery issue in the trial court by filing a motion pursuant to Florida Rule of Criminal Procedure 3.850.

BOARDMAN, A.C.J., and CAMPBELL and SCHOONOVER, JJ., concur.


author: OTT, Judge.

text:
    Otis BROWN, Appellant, v. STATE of Florida, Appellee.
    No. 81-230.
    District Court of Appeal of Florida, Second District.
    Dec. 11, 1981.
    Jerry Hill, Public Defender, Bartow, and Robert F. Moeller, Asst. Public Defender, Tampa, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Michael J. Kotler, Asst. Atty. Gen., Tampa, for appellee.
   OTT, Judge.

In view of the fact that appellant was declared insolvent, the trial court erred in assessing him court costs in the amount of $2 and requiring him to pay $10 to the crime compensation fund.

The issue of whether appellant’s sentence is illegal under Villery v. Florida Parole and Probation Commission, 396 So.2d 1107 (Fla.1981), is raised for the first time on this appeal. We therefore decline to address the question. See Gemmell v. State, 403 So.2d 629 (Fla.2d DCA 1981). But also see Lewis v. State, 402 So.2d 482 (Fla.2d DCA 1981), for sentencing alternatives.

That portion of the order assessing court costs and requiring appellant to pay into the crime compensation fund is stricken. As thereby amended, the judgment and sentence are AFFIRMED without prejudice to appellant’s raising the Villery issue in the trial court by filing a motion pursuant to Florida Rule of Criminal Procedure 3.850.

GRIMES, A. C. J., and SCHOONOVER, J., concur.


author: RYDER, Judge.

text:
    STATE of Florida, Appellant, v. Debra ANDERS and Gretchen Ranek, Appellees.
    No. 81-428.
    District Court of Appeal of Florida, Second District.
    Dec. 11, 1981.

      Jim Smith, Atty. Gen., Tallahassee and Peggy A. Quince, Asst. Atty. Gen., Tampa, for appellant.
    Jerry Hill, Public Defender, and Paul C. Helm, Asst. Public Defender, Bartow, for appellee Anders.
    R. John Cole, II, Sarasota, for appellee Ranek.
   RYDER, Judge.

The state appeals an order suppressing physical evidence seized from appellees, alleging that the search of a motor vehicle which produced the contraband was constitutionally permissible. We agree and reverse the order of suppression.

The state charged appellees with trafficking in cocaine and possession of methaqua-lone. At the hearing on appellees’ motion to suppress, testimony indicated that police officers responded to a disturbance call at an apartment where appellees were located. The officers testified that both appellees appeared sleepy, and that their speech was slurred. The officers left the apartment but waited nearby to ascertain if the disturbance would begin anew. Appellees, however, exited the apartment and departed from the area in a vehicle.

The officers followed the car and soon it was operated at an excessive speed and began weaving across the highway. The officers stopped the vehicle at which point they noticed the heads of the two occupants go together in the front seat. The driver, appellee Ranek, finally stepped from the car after being requested to do so four or five times. Ranek approached the officers in an unsteady walk, and had no driver’s license or other identification. Ranek failed three field sobriety tests, and police arrested her for driving while intoxicated.

Officer Worthington noticed a bulge in Ranek’s right front pocket with a black strap protruding out of the pocket. Further investigation revealed the bulge was a black gun holster with a knife in it. The officer testified that the presence of the holster produced a concern that there was possibly a weapon in the vehicle which matched the holster. Worthington and Cpl. Blosser proceeded to the car where Worth-ington searched the driver’s side for weapons. Blosser went to the passenger side, removed appellee Anders and found a large handbag under the floormat on the passenger’s side and handed it to Worthington. The purse was opened, searched and contraband was found therein. The officers did not frisk Anders when they removed her from the vehicle, which was registered to Ranek. The bag containing narcotic substances belonged to Anders.

The lower court, on February 24, 1981, entered an order suppressing the physical evidence seized. But the trial judge did not have before him the benefit of the holding in the more recent United States Supreme Court decision of New York v. Belton, - U.S. -, 101 S.Ct. 2860, 69 L.Ed.2d 768 (1981). In Belton, the Supreme Court held that the scope of a search incident to arrest includes the interi- or of an automobile where the arrestee is the recent occupant thereof. Belton also adopted as a rule the permissibility of such a search without regard to the particular facts of any arrest. See Chapas v. State, 404 So.2d 1102 (Fla.2d DCA 1981). As the court noted in Belton :

When a person cannot know how a court will apply a settled principle to a recurring factual situation, that person cannot know the scope of his constitutional protection, nor can a policeman know the scope of his authority. While [Chimel v. California, 395 U.S. 752, 89 S.Ct. 2034, 23 L.Ed.2d 685 (1969)] established that a search incident to an arrest may not stray beyond the area within the immediate control of the arrestee, courts have found no workable definition of “the area within the immediate control of the arrestee” when that area arguably includes the interior of an automobile and the arrestee is its recent occupant. Our reading of the cases suggests the generalization that articles inside the relatively narrow compass of the passenger compartment of an automobile are in fact generally, even if not inevitably, within “the area into which an arrestee might reach in order to grab a weapon or evidentiary item.” Chimel, supra, at 763 [89 S.Ct. at 2040]. In order to establish the workable rule this category of cases requires, we read Chimel’s definition of the limits of the area that may be searched in light of that generalization. Accordingly, we hold that when a policeman had made a lawful custodial arrest of the occupant of an automobile, he may, as a contemporaneous incident of that arrest, search the passenger compartment of that automobile.

101 S.Ct. at 2864.

Applying Belton and Chapas to the case below, we hold that the police officers were permitted to search the interior of the vehicle incident to arresting Ranek. Additionally, the presence of a pistol holster on Ranek made it reasonable for the officers to fear that a gun matching that holster was in the vehicle. The possibility of danger to the police was thus increased by the possession of the holster on Ranek and the presence of Anders in the car, and it was permissible for the officers to conduct a weapons search to insure their own safety.

The order of suppression below is REVERSED and the case REMANDED for further proceedings.

GRIMES, A. C. J., and SCHOONOVER, J., concur.


text:
    TRI STAR INVESTMENTS, INC., a Florida corporation, Appellant, v. Victoria E. MIELE and Regency Property Management, Inc., a Florida corporation, Appellees.
    No. 81-631.
    District Court of Appeal of Florida, Second District.
    Dec. 11, 1981.

      R. Timothy Peters and Michael A. Smith of Goza, Hall, Peacock, Peters & Smith, P. A., Clearwater, for appellant.
    No appearance for appellees.
   OTT, Judge.

The court below entered a final order dismissing with prejudice this action for breach of fiduciary duty. The dismissal was based on a determination that the plaintiff, through its counsel, had falsely and fraudulently represented to the court that its corporate officers would be unable to appear at trial because of an airline strike. However, counsel stated that he was ready for trial and, in fact, was not going to ask for a continuance.

The record reveals that the trial judge then had his secretary call the airline in question. From information thus obtained, the court concluded that the statement made to the court concerning the availability of plaintiff’s officers was false. No attempt was made to have an evidentiary hearing on the alleged “false representation,” and thus provide the plaintiff with an opportunity to rebut the judge’s hearsay information.

The law is clear that a trial court has the inherent authority to dismiss an action when fraud has been perpetrated on the court. Such power is indispensable to the proper administration of justice, because no litigant has a right to trifle with the courts. It is a power, however, which should be exercised cautiously and sparingly, and only upon a clear showing of fraud, pretense, collusion, or similar wrongdoing. Young v. Curgil, 358 So.2d 58 (Fla. 3d DCA 1978). The court, however, should carefully adhere to established due process, adversarial practice, and evidentiary rules in conducting an inquiry into such charges.

Here, we believe the facts presented do not clearly imply or establish fraud and constitute an abuse of discretion. Indeed, this may be a case of poor communication between plaintiff’s counsel and the trial judge, hardly warranting the harsh sanction of dismissal with prejudice.

The order of dismissal is REVERSED and the case REMANDED to the trial court for further proceedings.

GRIMES, A. C. J., and DANAHY, J., concur.


author: SCHOONOVER, Judge.

text:
    Keith TAYLOR, Ronald Mixon, and Donald Sutherland, d/b/a Victoria Partnership, a Florida corporation, Appellants, v. FLORIDA POWER & LIGHT COMPANY, a Florida corporation, and Gilmer Heitman, Jr., and Dorothy M. Turner, Co-Trustees, in the Last Will and Testament of Gilmer M. Heitman, Sr., Deceased and Gilmer M. Heitman, Jr., Individually, Appellees.
    No. 81-759.
    District Court of Appeal of Florida, Second District.
    Dec. 11, 1981.

      Harry A. Blair, P. A., Port Myers, for appellants.
    James H. Sweeny, III, and Jeffrey Ber-cow of Steel, Hector & Davis, Miami, for appellee, Florida Power & Light.
    L. David Sims of Allen, Knudsen, Swartz, Deboest, Rhoads & Edwards, P. A., Fort Myers, for appellees, Gilmer Heitman, Jr. and Dorothy M. Turner.
   SCHOONOVER, Judge.

This is an appeal from a partial summary judgment against Keith Taylor, Ronald Mixon, and Donald Sutherland, d/b/a Victoria Partnership, hereinafter referred to as Victoria.

We affirm as to all matters ruled on by the lower court except that portion of the judgment finding Victoria responsible for payments under a parking lot lease with plaintiff below, Florida Power & Light Company, a Florida corporation, hereinafter referred to as FP&L.

On April 1, 1967, FP&L entered into a lease with the co-trustees of the last will and testament of Gilmer M. Heitman, Sr. The lease covered lots one to eleven, block D, of First and Main Street addition, Lee County, Florida. On April 19, 1967, FP&L entered into a lease with Gilmer M. Heit-man, Jr. for a portion of block 8, James Evans homestead, Lee County, Florida. This lease was for a parking lot, approximately one block away from the property described in the first lease. Both leases were for fifteen years beginning December 1, 1967, and contained provisions establishing a set amount of rent for the first ten years, but leaving open the amount of rent for the final five years of the term.

On January 2, 1974, FP&L entered into another lease for new offices with Victoria. Paragraph 12 of that lease provided as follows:

12. The Landlord shall assume all financial responsibilities for the five (5) year period commencing 1 December 1977 and ending 30 November 1982 for the facility presently occupied at 1601 Lee Street, Fort Myers, Florida, by the Tenant, under the Tenant’s lease arrangement with the Exchange National Bank of Tampa, Gilmer M. Heitman, Jr. and Dorothy H. Turner. The rental rate shall be that agreed upon under the terms as specified in paragraph # 1 (c)(ii) page 4 of the Tenant’s present lease made and entered into April 1, 1967.

When FP&L and the other parties could not agree on their rights and responsibilities under the respective leases, FP&L filed an action for declaratory judgment. The lower court entered a partial summary judgment for FP&L which held Victoria responsible for the payments due under the parking lot lease.

FP&L contends that the parties intended Victoria to be responsible for payments due under both leases, and Victoria contends that paragraph 12 of their lease with FP&L only spoke to the lease of the office building.

We agree with Victoria’s contention. They correctly assert that the words in an agreement are presumed to have been used with their ordinary and customary meaning. Pottsburg Utilities, Inc. v. Daugharty, 309 So.2d 199 (Fla. 1st DCA 1975). It is clear the agreement requires Victoria to assume certain financial responsibilities under the lease entered into on April 1, 1967, and not under the lease entered into on April 19, 1967.

The omission of any reference to the parking lot lease in paragraph 12 must be taken as evidence that the parties did not intend to have it included.

We accordingly reverse that portion of the partial summary judgment holding Victoria financially responsible for the April 19,1967, lease, but affirm the lower court in all other respects.

Reversed and remanded for further proceedings consistent with this opinion.

SCHEB, C. J., and CAMPBELL, J., concur.


text:
    Ronnie Rene BROWN, a/k/a Michael L. Brown, Appellant, v. STATE of Florida, Appellee.
    No. 81-764.
    District Court of Appeal of Florida, Second District.
    Dec. 11, 1981.
    Jerry Hill, Public Defender, and William H. Pasch, Asst. Public Defender, Bartow, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Peggy A. Quince, Asst. Atty. Gen., Tampa, for appellee.
   PER CURIAM.

Affirmed. The sole issue raised on appeal concerns the propriety of appellant’s sentence under Villery v. Florida Parole & Probation Commission, 396 So.2d 1107 (Fla.1981). This point appears to have been raised for the first time on appeal, and because Villery suggests that our supreme court contemplated that this issue be brought to the attention of the trial court in the first instance, we do not consider it on this appeal. However, this affirmance is without prejudice to appellant’s raising this issue in the trial court by filing a motion pursuant to Florida Rule of Criminal Procedure 3.850.

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


text:
    Ulysses MURPHY, Jr., Appellant, v. STATE of Florida, Appellee.
    No. AC-477.
    District Court of Appeal of Florida, First District.
    Dec. 11, 1981.
    P. Douglas Brinkmeyer, Asst. Public Defender, for appellant.
    Jim Smith, Atty. Gen., Wallace E. All-britton, Asst. Atty. Gen., for appellee.
   PER CURIAM.

Appellant seeks review of his conviction and sentence for the offense of burglary, contending that the absence of a venue allegation in this charge requires reversal. Appellant was adjudged guilty on each count of a six-count information, and each count, with the exception of the contested burglary charge, alleged venue. Appellant did not at any time prior to this appeal object to the absence of a venue allegation, and does not now allege that he was hampered in the preparation of his defense or otherwise prejudiced by this omission. One count of the information alleges the theft of property from the owners of the burglarized dwelling, and includes a venue allegation. In the circumstances of this case we find no reversible error and affirm the order appealed.

In State v. Black, 385 So.2d 1372 (Fla.1980), the court held that venue is an essential element of an indictment, and that the absence of a venue allegation is a fundamental defect. The court expressly noted that in view of the secrecy which pervades grand jury proceedings and indictments, it is essential that the charging document facially indicate jurisdiction by alleging venue. Unlike Black, the present case involves a multiple-count information (with all but the contested charge alleging venue), rather than a single-count indictment. In Black the defendant objected at trial and sought to dismiss the indictment whereas in the present case appellant did not complain below and seeks now to raise the issue for the first time on appeal. In Ray v. State, 403 So.2d 956 (Fla.1981), the court indicated that “for errors to be so fundamental that it may be urged on appeal, though not properly presented below, the error must amount to a denial of due process.” In the present case the court below possessed jurisdiction and appellant has not alleged any prejudice from the omission of a venue allegation in the contested charge; we conclude that in the circumstances of this case the absence of a venue allegation was not a “denial of due process” and cannot be raised for the first time on appeal.

Accordingly, the order appealed is affirmed.

McCORD, LARRY G. SMITH and WENTWORTH, JJ., concur.


author: MOORE, Judge. LETTS, Chief Judge,

text:
    In the Interest of K. L. H., a child.
    Nos. 79-1884, 80-193.
    District Court of Appeal of Florida, Fourth District.
    Dec. 14, 1981.
    Richard L. Jorandby, Public Defender, and Cherry Grant, Asst. Public Defender, West Palm Beach, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Max Rudmann, Asst. Atty. Gen., West Palm Beach, for appellee. ’ 11
   MOORE, Judge.

These consolidated appeals are from two orders adjudicating the appellant, K. L. H., a minor, delinquent and placing her in a community control program. The appellant’s arrest on March 18,1979 for aggravated battery resulted from her alleged firing of a rifle, the shot from which ricocheted and struck the victim.

The appellant was originally found guilty of culpable negligence. This finding was vacated and in lieu thereof the court found her guilty of reckless display of a firearm. On appeal, she argues that her right to a speedy trial was violated; that the adjudication of culpable negligence was error because that offense is not a lesser included offense of aggravated battery for which she was charged; and finally, that the court did not have jurisdiction to adjudicate her guilty of reckless display of a firearm. She also argued that reckless display of a firearm is not a lesser included offense of aggravated battery. We find that appellant’s speedy trial rights were violated and reverse. Therefore, we need not reach the other alleged errors.

The appellant was taken into custody on March 18, 1979. Absent a proper extension of the speedy trial time pursuant to Rule 8.180, Florida Rules of Juvenile Procedure, the appellant was entitled to be tried on or before June 16,1979. Alleging the unavailability of the victim, the State received continuances of the case on April 3 and April 30, 1979. On May 9, 1979, the State moved for an order “tolling” the speedy trial requirements' of the rule. Although this was a written motion, it was not served upon the appellant or her attorney, nor was it properly noticed for hearing. On June 14, 1979 the court granted the motion and “tolled” the running of the speedy trial time. A motion to vacate the order tolling the speedy trial time and a motion to discharge were denied by the court.

Appellant was found guilty of culpable negligence and adjudicated delinquent on July 16, 1979. She was then placed on a community control program. The appellant then filed a motion to vacate her adjudication but before a ruling was obtained on this motion she filed her notice of appeal on August 15, 1979. Thereafter the court granted appellant’s motion to vacate the culpable negligence adjudication and entered a finding that appellant was guilty of reckless display of a firearm. The court failed, however, to reinstate the community control program after vacating the original adjudication.

In January, 1980, the State filed a petition alleging appellant’s violation of the community control program. This petition was dismissed because of the court’s previous failure to reinstate the program. Nevertheless, at the hearing on the petition the court, over objection, again placed appellant on community control. After another motion to vacate was denied the second notice of appeal was filed. We consolidated both appeals.

Contrary to the State’s contention we find that the motion to “toll” the time for speedy trial (more correctly denominated as a motion for extension of time) was improperly granted. It is clear that in this case no hearing, as required by the rule, was ever conducted. At most, there was an ex parte dialogue between the State and the trial court. “The essence of procedural due process is the right to a hearing upon reasonable notice.” Times Publishing Company v. Burke, 375 So.2d 297 (Fla. 2d DCA 1979). Rule 8.180 unambiguously requires that the time for trial be extended only after hearing. There having been no hearing, it follows that there could be no proper extension of the time. Moreover, appellant was never made aware that a court ruling was imminent. The State’s written motion, filed on May 9, 1979, did not contain a certificate of service, nor does the State contend that appellant ever received service of its motion. Without such service, or its equivalent, the motion cannot give rise to a court order adversely affecting the appellant. We therefore hold that the time for speedy trial was improperly extended and the appellant was entitled to discharge at the expiration of ninety (90) days. Rule 8.180(b) Fla.R.Juv.P.

The State contends that appellant received notice of its motion to extend the speedy trial time during one of the two prior hearings on the State’s motion for continuance. We disagree. Initially, we note that the written motion for extension was filed after both of the hearings for continuance. At these hearings the only motions granted were those for continuance. Although the State orally moved to extend the speedy trial period the court specifically stated that it would not rule on the motion for extension. Thereafter no hearing was held on the motion for extension. The hearings held on the motions for continuance cannot substitute for the hearing required on a motion to extend the time for trial. To hold otherwise would contravene the clear intent of the rule.

Finally, we wish to express our concern over the use of form motions and orders. In this ease a single form contained the motion and order of extension. Both incorrectly asserted that the respondent (appellant) was unavailable for trial when actually she was available at all times. Although it was made clear through a typewritten insertion that the State was referring to the unavailability of a witness, the form order extended the time for trial until such time as appellant became available. Neither the administration of justice, nor public confidence and respect in our courts, are enhanced when official documents are so carelessly prepared.

In view of our holding that the appellant was entitled to discharge upon expiration of the speedy trial time, it is unnecessary for us to address the other issues raised by the appellant. Accordingly, these consolidated appeals are reversed and this cause is remanded to the trial court for entry of an order discharging the appellant from further prosecution.

BERANEK, J., concurs.

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

LETTS, Chief Judge,

concurring specialty-

I concur, with the observation that the combination of the speedy trial rule (which in my view should be amended to only apply to a defendant who asks for a speedy trial or is languishing in jail) and sheer carelessness have combined to free what looks to me to be a very ugly customer. I am sorry we are helpless to prevent it.

      . Rule 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 timé 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.

      . Case No. 79-1884.

      . Case No. 80-193.


text:
    Jeffrey C. WAITES, Appellant, v. STATE of Florida, Appellee.
    No. 79-2447.
    District Court of Appeal of Florida, Fourth District.
    Dec. 14, 1981.
    Richard L. Jorandby, Public Defender, Tatjana Ostapoff, Asst. Public Defender, and Peter Birch, Legal Intern, West Palm Beach, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Stewart J. Bellus, Asst. Atty. Gen., West Palm Beach, for appellee.
   PER CURIAM.

Defendant was convicted of attempted burglary and sentenced to fifteen years in prison. We conclude that defendant’s conviction should be affirmed. The sentence, however, is illegal for two reasons: (1) it exceeds the maximum period provided by law and (2) it contravenes defendant’s entitlement to youthful offender treatment. Accordingly, we affirm the conviction but reverse the sentence and remand for resen-tencing.

Section 777.04(4)(c), Florida Statutes (1979), indicates that an attempt to commit “any burglary” is a felony of the third degree. Williams v. State, 386 So.2d 631 (Fla.2d DCA 1980); Crook v. State, 385 So.2d 1136 (Fla. 1st DCA 1980); McQuay v. State, 368 So.2d 908 (Fla. 1st DCA 1979); State v. Drumwright, 367 So.2d 256 (Fla. 4th DCA 1979). Therefore, since Section 775.082(3)(d), Florida Statutes (1979), states that a term of imprisonment for a third degree felony shall not exceed five years, we hold that the fifteen year sentence imposed in the case at bar is illegally excessive.

Moreover, there is a second impediment to the sentence. At the sentencing hearing defendant sought to be treated as a youthful offender under the Florida Youthful Offender Act, Sections 958.011-.15, Florida Statutes (1979). The trial court, however, not having the benefit of the Supreme Court’s recent decision in State v. Goodson, 403 So.2d 1337 (Fla.1981), concluded that Section 958.04(2) was discretionary and, therefore, declined to sentence defendant as a youthful offender. However, inasmuch as Goodson holds that Section 958.-04(2) is mandatory, we are compelled to reverse the sentence. Accordingly, defendant’s conviction is affirmed. The sentence, however, is reversed and the cause is remanded for resentencing.

DOWNEY, MOORE and HURLEY, JJ, concur.


author: LETTS, Chief Judge.

text:
    Herbert ESPEY, Appellant, v. STATE of Florida, Appellee.
    No. 80-254.
    District Court of Appeal of Florida, Fourth District.
    Dec. 14, 1981.
    Richard L. Jorandby, Public Defender, and Tatjana Ostapoff, Asst. Public Defender, West Palm Beach, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Joy B. Shearer, Asst. Atty. Gen., West Palm Beach, for appellee.
   LETTS, Chief Judge.

This appeal results from a conviction for sexual battery upon a seven year old granddaughter, the accused claiming that the admission of evidence as to his proclivity for coerced oral, anal and vaginal intercourse, use of pornographic materials, bestiality and lesbianism either with, or among, his five other children and housepet, was erroneous. We affirm.

The sole issue is whether evidence of these collateral crimes was admissible under the so called “Williams Rule,” see Williams v. State, 110 So.2d 654 (Fla. 1959), cert. den. 361 U.S. 847, 80 S.Ct. 102, 4 L.Ed.2d 86 (1959). The law laid down in Williams predicates the admission of the evidence on whether it has legal relevance, i.e. whether it tends to prove any of the issues properly before the trial court. “The test of admissibility is relevancy. The test of inadmissibility is a lack of relevancy.” Id. at 660.

We begin by recapitulating some of the facts of the controlling Williams case in which the victim parked her car during the evening at a shopping plaza and returned to discover a man hiding in the back seat who later claimed he thought it was his brother’s car in which he wanted to take a nap. Also admitted in evidence was the testimony of another crime victim who testified that she also had parked her car in the same parking lot at the same hour some six weeks earlier and had returned to find the same defendant hiding in the back seat, resulting in the same explanation of napping in an automobile which he thought belonged to his brother. Based on this similarity of events, our Supreme Court held in part:

[Generally it is harmful to admit evidence of collateral crimes “independent of an unconnected with” the crime charged. The decision then announces that “to this general rule” there are several distinct exceptions, among which are evidence which is a part of the res gestae or tends to establish identity, or when necessary to an intelligent account of the crime.... These exceptions include any evidence that will tend to prove criminal intent, guilty knowledge, purpose, plan or design or such as would tend to show that the act charged was not the result of accident, mistake or inadvertence or was aimed to prevent the defense otherwise opened to the accused. Id. at 661.

Although it is the law of this State, we will be the first to concede that the Williams rule has often been stretched too far and that even Williams itself is somewhat amorphous. After all, it is a standard police warning that people should look on the floor of the back seat of their cars before entering and it is a frequent explanation by an intruder that he mistook the vehicle for another. Nonetheless we find several aspects of this case which make the disputed testimony relevant to intent and a common scheme or plan, as laid down in Williams.

These collateral crimes mostly began with beguiling affection, fondling, viewing of pornographic materials and home nude photography followed by the actual sexual batteries, all committed under the same roof exclusively with his own children and grandchildren, both male and female. These ghastly sessions were always concluded with threats of knifings and beatings if ever the children revealed the goings-on. The attacks on each child were also timed to coincide with their most tender years, between the ages of seven, when most of the attacks would begin, through the end of puberty whom most of them would cease. To us, all this certainly is relevant to demonstrate a unique common scheme or plan to systematically ravage and deflower the helpless young members of his own household.

This brings us to a discussion of the recent case of Cotita v. State, 381 So.2d 1146 (Fla. 1st DCA 1980) cert. denied 392 So.2d 1373 (Fla. 1981) in which the court held, in a split decision, that evidence of prior illicit sex crimes with other neighborhood children was relevant to establish whether the accused had committed a lewd or lascivious act upon his own five year old daughter. If the Cotita decision is correct, and we believe it may be under Williams, then a fortiori our conclusion here must be likewise, for in Cotita there were other eyewitnesses and the crimes were not in such great profusion or all committed in the same house against the accused’s own children.

Examining next the pungent and forceful dissent by Judge Smith in Cotita, we are impressed with the obvious truth that the admission of other-crimes evidence, carried with it an inescapable demonstration of “... bad character and criminal sexual propensities which for 150 years have been the cause for restricting its use.” Id. at 1152. However, most of Judge Smith’s most cogent arguments would appear to us to apply to Williams itself and certainly we need not disobey the message of Williams, so long as it continues to be the law laid down by our Supreme Court. Where the issue is whether a grandfather has committed a sexual battery on his grandchild, evidence that he committed at least a score more on five other young members of his family, in the same location, in the same manner continuously over an eighteen year period, suggests something much more than bad character or propensity to commit similar criminal acts. In fact it fits the most recent update of Williams by the Supreme Court rendered in Drake v. State, 400 So.2d 1217 (Fla. 1981), where it was said that in order for the evidence to be legally relevant, the identifiable points of similarity “must have some special character or be so unusual as to point to the defendant.” Id. at 1219. We find many identifiable points of similarity here and a level of uniqueness pointing towards the defendant which is thankfully beyond our prior knowledge or experience. See also Jones v. State, 398 So.2d 987 (Fla. 4th DCA 1981).

We conclude with a reference to State v. Rush, 399 So.2d 527 (Fla. 2d DCA 1981), in which the Second District empathized with Circuit Judge Harry C. Parham and called for a change in the law in child molestation cases so that similar fact evidence will be more readily admissible. It goes without saying that we find such a change unnecessary to support our conclusion here; however, we also join with our brothers in the Second District in expressing concern about the difficulty in otherwise proving deviant sex acts perpetrated upon children. Where a seven year old is the only eyewitness the jury might well find the testimony incredible, as if coming from a deranged fanciful child unable to perceive the true gravity and dire consequences of her accusations.

AFFIRMED.

MOORE and BERANEK, JJ., concur.


author: BERANEK, Judge.

text:
    Thomas MILLS and Dorothe Krayer, public officers, acting in their official capacities, Appellant, v. Rohalier PHILLIPS, In the interest of Debra Phillips, a minor, Appellee.
    No. 80-967.
    District Court of Appeal of Florida, Fourth District.
    Dec. 14, 1981.

      Michael E. Jackson, West Palm Beach, for appellant, The School Bd. of Palm Beach County.
    Rendell Brown of Brown & Weaver, West Palm Beach, for appellee.
   BERANEK, Judge.

This is an appeal by the School Board of Palm Beach County from a temporary order which enjoined the School Board from suspending a student. The School’s suspension order in question is not clearly moot, but we entertain this appeal and decide the issues because they involve the authority and duties of public officials in the administration of public responsibilities and are of general interest. See Walker v. Pendarvis, 132 So.2d 186 (Fla.1961). We find no error and reverse.

Debra Phillips is a student whose parents are divorced. Under the final judgment of dissolution of marriage, which was entered by the Circuit Court in Palm Beach County, the mother was given custody of the parties’ minor child. The appellee/father became embroiled in School Board suspension proceedings regarding his minor daughter. Appellee filed suit for a mandatory injunction and for mandamus against the principal of his daughter’s high school and the superintendent of the School Board of Palm Beach County. The suit sought to redress alleged deprivations of appellee’s daughter’s right to due process, representation of counsel, and other matters relating to a suspension hearing.

Although there was evidence of some limited cooperation between the School Board and the father, it is clear that the School Board took the official position that the custodial parent, the mother, was the party responsible for making the educational decisions regarding the child. The School Board sent notice of proposed suspension to the mother and gave her the opportunity to request a hearing. Initially the mother chose not to request a hearing but at a later point, the mother attended one hearing relating to her daughter’s proposed discipline.

We reverse the order which granted the temporary injunction because we conclude that the father, as the non-custodial parent, did not have standing to bring the action on behalf of his daughter. The issue of appellee’s standing was specifically raised by the School Board and the initial complaint filed by appellee himself demonstrated that he was the non-custodial parent and that both parents were, in fact, at odds regarding the educational decisions to be made concerning their daughter. Under these circumstances the court erred in not granting the School Board’s motion to dismiss based on lack of standing.

Section 744.301, Florida Statutes (1979), provides in part:

If the marriage between the parents is dissolved, the natural guardianship shall belong to the parent to whom the custody of the child is awarded.

Section 744.361, Florida Statutes (1979), provides in part:

(1) It is the duty of the guardian of the person to take care of the person of the ward, to treat him humanely, and, if he is a minor, to see that he is properly educated and that he has the opportunity to learn a trade, occupation, or profession.

There appear to be no decisions in Florida directly ruling upon the right of a non-custodial parent to make educational decisions for children in custody of the other parent. Certainly, under the above statutes the noncustodial parent is not legally empowered to make such decisions and he or she should not have standing to sue the School Board to enforce such decisions against the wishes of the custodial parent. In Bennett v. Bennett, 73 So.2d 274 (Fla.1954), the Florida Supreme Court indicated that the custodial parent had the prerogative of making educational decisions.

Although Bennett did not discuss the issue in the context of a custodial versus non-custodial parent, the general law throughout the country is clearly to the effect that the grant of custody of a child of divorced parents carries with it, in the absence of some extraordinary and highly unusual circumstances, the right of the custodial parent to make decisions as to the child’s education. Fanning v. Warfield, 252 Md. 18, 248 A.2d 890 (1969). In Montandon v. Montandon, 242 Cal.App.2d 886, 52 Cal.Rptr. 43 (1966), the California court held the party to whom custody of children is granted in a divorce decree has the prerogative of selecting the religious, cultural, and educational institutions which the child should attend. Also see Lerner v. Superior Court, 38 Cal.2d 676, 242 P.2d 321 (1952). In Jenks v. Jenks, 385 S.W.2d 370 (Mo.App.1964), the court held that the award of custody in a divorce decree carries with it the right to direct the education and place of education of the child. New York follows the same reasoning as exemplified by Mester v. Mester, 58 Misc.2d 790, 296 N.Y.S.2d 193 (1969), wherein the court held that the nature and extent of education, lay or secular, of a child is a value judgment committed to the parent having custody. The court held that such decisions should only be interfered with by the courts upon a positive demonstration of harm to the child.

We conclude that the above precedents require a ruling that a non-custodial parent, absent some extraordinary circumstance, has no standing to sue the School Board on behalf of his or her children to enforce decisions regarding their education which are at odds with the desires or actions of the custodial parent. The trial court thus erred in granting the temporary injunction when it was shown, without contest, that the non-custodial parent was proceeding on behalf of the child and where no extraordinary circumstances such as illness or unavailability of the custodial parent was involved. We do not imply by this decision that the non-custodial parent is without remedy. He or she certainly has standing to petition the court with jurisdiction over the dissolution of marriage for relief when necessary for the best interests of the child. Section 61.13, Florida Statutes (1979).

This ruling does not directly relate to the administrative procedures regarding suspension of children nor does it constitute any ruling on the function of the courts in reviewing suspension decisions by the School Board. The question addressed is simply the right or standing of the non-custodial parent to sue the School Board on behalf of the child who remains in the legal custody of the custodial parent. The order granting the temporary injunction below is hereby vacated.

ORDER VACATED.

DOWNEY and MOORE, JJ., concur.


text:
    Susan Engel PARKS, Appellant, v. Bruce Marshall PARKS, Appellee.
    No. 80-1160.
    District Court of Appeal of Florida, Fourth District.
    Dec. 14, 1981.

      Edna L. Caruso, West Palm Beach, and Osborne Walker O’Quinn, Fort Pierce, for appellant.
    Charles A. Sullivan, Jr., Vero Beach, for appellee.
   LETTS, Chief Judge.

This appeal is predicated on the wife’s claims that the alimony and child support awarded by the trial court were inadequate. We agree as to the periodic alimony and reverse in part.

At the time of the hearing, the wife was unemployed and the husband was making approximately $3,000 per month. Notwithstanding the above, the rehabilitative alimony award was only $100.00 a month for ten (10) months. We think this was inadequate and direct the trial court to increase the periodic award retroactive to the date of the final judgment, to $200.00 per month.

We can have no objection to the award being only rehabilitative, in the light of the wife’s relative youth, good health, qualifications as a teacher and the dictates of Canakaris v. Canakaris, 382 So.2d 1197 (Fla.1980). However, we note that the judge orally pronounced that the award would be for eighteen (18) months and we find this period more appropriate than the ten (10) month limitation in the written final judgment.

Accordingly, this cause is reversed with instructions to the trial judge to increase the monthly alimony award to $200.00 per month for eighteen (18) months.

Furthermore, we note the judge’s oral pronouncement that the husband was to carry medical insurance for the children, a requirement not referred to in the final judgment. Accordingly, as to this latter item, the trial judge is directed to consider this aspect afresh.

In all other respects the final judgment and all other provisions are affirmed.

REVERSED IN PART AND REMANDED.

DOWNEY and MOORE, JJ., concur.