author: WENTWORTH, Judge.

text:
    In the Matter of CITY OF OCALA, Appellant, v. MARION COUNTY POLICE BENEVOLENT ASSOCIATION, International Association of Firefighters, Local No. 21, and Public Employees Relation Commission, Appellees.
    No. NN-431.
    District Court of Appeal of Florida, First District.
    Dec. 16, 1980.

      H. Victor Hansen and Robert J. Bekken, of Fisher & Phillips, Atlanta, Ga., and Seymour H. Rowland, Jr., Ocala, for appellant.
    Phillip P. Quaschnick, Staff Counsel, Tallahassee, for appellee Public Employees Relation Commission.
    Gene “Hal” Johnson, Gen. Counsel, Florida Police Benevolent Ass’n, Inc., Tallahassee, for appellee Marion County Police Be-nev. Assn.
    Rodney W. Smith, Gainesville, for appel-lee International Ass’n of Firefighters, Local No. 2135.
   WENTWORTH, Judge.

City of Ocala [City] appeals a consolidated final order issued by the Florida Public Employees Relation Commission [PERC] after separate hearings and recommended orders by two members of the Commission on claims by the two appellee unions. PERC’s order found City guilty of unfair labor practices in violation of Section 447.-501(l)(a) and (c), Florida Statutes (1977). We affirm and find no merit in City’s appeal from PERC’s determinations (1) that City’s due process rights were not violated by consolidation of the two cases at the commission level; (2) that merit wage increases for represented employees were required for maintenance of the status quo during negotiations; (3) that City violated the Public Employees Relations Act by declining to negotiate during pendency of a decertification petition before the commission; and (4) that the award of attorney’s fees was proper within commission guidelines.

Marion County Police Benevolent Association [PBA], certified bargaining agent for patrolmen, patrolmen first class, master patrolmen, evidence technicians and traffic enforcement officers of the Ocala Police Department, filed with PERC unfair labor practice charges against City alleging that City had engaged in unfair labor practices by unilaterally discontinuing wage merit increases for members of the bargaining unit and by refusing to engage in collective bargaining negotiations with PBA during the pendency of a petition seeking decertifi-cation of PBA. International Association of Firefighters, Local No. 2135 [IAFF], certified bargaining agent for company captains and battalion captains of the Ocala Fire Department and for firefighters and fire equipment operators of the Ocala Fire Department, similarly filed with PERC unfair labor practice charges complaining of City’s unilateral discontinuance of wage merit increases. PERC issued complaints against City based upon the alleged unfair labor practice charges of PBA and IAFF. The IAFF and PBA matters were heard before separate hearing officers, who filed recommended orders finding City guilty of unfair labor practices.

Commission Members as Hearing Officers.

Section 120.57(l)(b)(ll), Florida Statutes, provides:

A hearing officer who is a member of an agency head may participate in the formulation of the agency’s final order, provided he has completed all his duties as hearing officer.

Appellant asserts this language would permit only one of the three commission members to serve as hearing officer prior to participation in the agency’s final action. We are referred to no authority for that proposition and find no such intent, express or implied, in the statutory terms or context. The basic application of the quoted provision has been fully considered in Win- slow v. Department of Professional and Occupational Regulation, 348 So.2d 352 (Fla. 1st DCA 1977), and will in our opinion permit the procedure followed in the present case. Appellant relies on decisions which imply more stringent constitutional standards for multiple functions by agency members when a statute mandates their review of prior final decisions (as opposed to recommended orders). Goldberg v. Kelly, 397 U.S. 254, 90 S.Ct. 1011, 25 L.Ed.2d 287 (1970); Withrow v. Larkin, 421 U.S. 35, note 25 at page 58, 95 S.Ct. 1456, note 25 at page 1470, 43 L.Ed.2d 712 (1975). Analysis of the act governing PERC’s adjudicative process would, however, indicate that the commission’s function is not appellate in nature but involves the initial rendition of final orders or decisions based on proposed conclusions or recommendations and factual findings by hearing officers. Our consideration of the text of the order appealed, as well as all decisional guidelines, supports a conclusion that PERC fully performed its statutory duties in a manner complying with due process requirements. § 447.-503(4)(a).

Discontinuance of Wage Merit Increases.

In 1969, City initiated a merit pay system adopting Personnel Rule 6.04 which provided:

6.04 Salary Increases. Salary increases within appropriate pay grades shall be based on the merit and fitness of the employee. Employees shall become eligible for salary increases annually on their anniversary date. Department heads may recommend salary increases of more than one step and more frequently than once in a twelve-month period by preparing a special personnel evaluation specifying the employees [sic] exceptional performance. Salary increases or decreases resulting from the overall adjustment of salary grades shall not prevent within grade increases in accordance with this section.

A similar rule, § 6.04, is incorporated in City’s Police Department Rules and Regulations. By practice, employees were evaluated annually and salary increases were given based on the merit and fitness of each employee. The determination of whether a particular employee received a merit increase on his anniversary date was based upon an evaluation of the employee’s performance. An employee receiving a bad evaluation would not receive a merit increase; but, in accordance with established practice, an employee receiving an evaluation of “satisfactory” or above would receive a merit increase for that specific year. The determination of whether or not a merit increase would be given to City employees and the amount of such increase was made annually by the City Council. Since the inception of the merit pay system, the City Council had authorized merit increases of either 3% or 6% for each budget year. In the 1977-78 budget, the City Council granted a 6% merit increase for eligible City employees. Eligible non-unit employees received the 6% merit increase for 1977-78. PBA members were advised September 30, 1977, that they would not receive the merit increases. Unit-members were advised by memorandum that:

By law, the City may not make any unilateral changes in wages or other negotiable items until the union negotiations are concluded and ratified. Consequently, as long as the union situation continues, no one in the bargaining unit can receive a raise, either merit or otherwise. Everything must be maintained at “status quo.” Non-unit employees will not be affected.

Without prior consultation or negotiations, IAFF bargaining representatives were advised by the City negotiating team that IAFF members would not receive the merit increases until the contract they were negotiating was signed. Although IAFF and City had previously entered into collective bargaining agreements covering the firefighters and fire equipment operators, the merit pay system had not been incorporated into prior agreements.

PERC found that City’s program of merit increases had become an established term and condition of the employment of all employees, including bargaining unit employees. PERC further found that the merit program was a part of the status quo which these employees might have reasonably expected to continue without interruption. PERC concluded that City’s unilateral alteration of the status quo during the pend-ency of collective bargaining negotiations constituted a per se violation of Section 447.501(l)(c), Florida Statutes (1977), and a violation of Section 447.501(l)(a), Florida Statutes (1977).

It is well-settled that an employer’s unilateral change in conditions of employment during the course of collective bargaining constitutes an unlawful refusal to bargain. NLRB v. Katz, 369 U.S. 736, 82 S.Ct. 1107, 8 L.Ed.2d 230 (1962). Public employers may not unilaterally alter the status quo while collective bargaining negotiations are in progress without per se violating the statutory duty to bargain. Pinellas County Police Benevolent Association v. City of St, Petersburg, 3 FPER 205 (1977); Hernando Classroom Teachers Association v. Hernando County School Board, 3 FPER 246 (1977); Palowitch v. Orange County School Board, 3 FPER 280 (1977), aff’d, 367 So.2d 730 (Fla. 4th DCA 1979). Unilateral change constitutes a circumvention of the statutory duty to bargain. Katz, supra; Pasco County School Board v. PERC, 353 So.2d 108, 122-126 (Fla. 1st DCA 1977).

City contends its discontinuance of merit increases was in accordance with Pinellas County Police Benevolent Association, supra. PERC maintains, however, that the present case is controlled by Hernando County School Board, supra.

In Pinellas County Police Benevolent Association, supra, collective bargaining agreements between the City and the unions contained provisions for a step merit increase pay plan. Pursuant thereto, employees were eligible for evaluation on their anniversary dates, and if satisfactorily evaluated, were entitled to a step increase pursuant to a contractual salary schedule. Upon expiration of the 'agreements on September 30, 1976, the City unilaterally deleted the step merit increase pay plan, freezing wages at the September 30th levels. PERC found that the City’s action of freezing the salaries at their September 30,1976, levels did not constitute an unfair labor practice. PERC reasoned that:

[ U]pon the expiration of an agreement and until the legislative body take action pursuant to Section 447.403(2)(c)4, or a new agreement is ratified, the public employer has a duty to maintain the status quo with regard to the expired agreement. This “status quo” requires the employer to maintain the terms and conditions of the expired agreement in the same state that the terms existed on the expiration date of the agreement ....
Under this rationale, a public employer is only under a duty to maintain the salary levels that existed at the agreement’s expiration date. If the expired agreement provided for a step increase in salary for each employee on his anniversary date, the employer is not required to provide those steps which occur during the hiatus between the expired agreement and the Section 447.403 legislative action or the ratification of a new agreement. Those increases, during the hiatus, were beyond the contemplation of the public employer when it executed and ratified the agreement for a specific period of time.

In Hernando County School Board, supra, the public employer was found guilty of an unfair labor practice for its action of unilaterally adopting a salary schedule for bargaining unit employees, which schedule froze salaries at their current step. Evidence revealed that, for at least eight years previously, the employees had received an automatic step increase each year by virtue of their teaching during the prior year. PERC found that the public employer altered the status quo, thereby committing an unfair labor practice, by unilaterally eliminating the step increase during collective bargaining negotiations. PERC found Pinellas County Police Benevolent Association, supra, distinguishable noting:

Here, however, there was no collective bargaining agreement in existence. In this case, the status quo can be maintained only by continuing the prior practice of awarding step increases based upon completion of a year’s teaching.

In the present case, as in Hernando County School Board, supra, the merit pay system had not been embodied in a collective bargaining agreement. The merit pay system was not a condition of employment contemplated to be applicable for a specified period of time only, as in Pinellas County Police Benevolent Association, supra.

City asserts, however, that Hernando County School Board, supra, is inapplicable because the merit increases here were discretionary in nature rather than automatic. City maintains that granting a discretionary merit increase constitutes a unilateral alteration of the status quo prohibited by NLRB v. Katz, supra.

In Katz, the Supreme Court considered the unilateral actions of an employer during negotiations consisting of a change in sick leave policy, merit pay increases, and the institution of a new system of automatic pay increases. With reference to the merit pay increases, the court distinguished “automatic” increases from “discretionary” increases. The Court noted that the unilateral granting of merit increases:

[ M]ust be viewed as tantamount to an outright refusal to negotiate on that subject, and therefore as a violation of § 8(a)(5) [of NLRA], unless the fact that the January raises were in line with the company’s long-standing practice of granting quarterly or semi annual merit reviews — in effect, were a mere continuation of the status quo — differentiates them from the wage increases and the changes in the sick-leave- plan. We do not think it does. Whatever might be the case as to so-called “merit raises” which are in fact simply automatic increases to which the employer has already committed himself, the raises here in question were in no sense automatic, but were informed by a large measure of discretion. There simply is no way in such case for a union to know whether or not there has been a substantial departure from past practice, and therefore the union may properly insist that the company negotiate as to the procedures and criteria for determining such increases.

Katz, 369 U.S. at 746-747, 82 S.Ct. at 1113.

PERC, although acknowledging that the merit pay increases involved some measure of discretion, contends that City’s discontinuance of the merit pay increases constituted a prohibited change in an existing condition of employment. In NLRB v. Dothan Eagle, Inc., 434 F.2d 93 (5th Cir. 1970), the court noted:

At first glance it might appear that the employer is caught between the proverbial “devil and the deep blue sea.” It is an unfair labor practice to grant a wage increase during the campaign and bargaining periods, but at the same time it may be an unfair labor practice to refuse to grant an increase during this same period .... The cases make it crystal clear that the vice involved in both the unlawful increase situation and the unlawful refusal to increase situation is that the employer has changed the existing conditions of employment. It is this change which is prohibited and which forms the basis of the unfair labor practice charge ....
In other words, whenever the employer ... by a course of conduct has made a particular benefit part of the established wage or compensation system, then he is not at liberty unilaterally to change this benefit either for better or worse during the union campaign or during the period of collective bargaining.

Id. at 98. [Emphasis in original]. See also, General Motors Acceptance Corporation v. NLRB, 476 F.2d 850 (1st Cir. 1973).

PERC found that the merit raises were not, in contrast to Katz, highly discretionary in nature. The hearing officer in the PBA case found:

The facts in this case demonstrate that since 1969 the City has had a well-established and continuous policy of granting merit raises to -all employees who are evaluated as satisfactory or better. The merit raise policy has but few areas of discreation [sic], notably the determination by the City Council each year setting the maximum amount of the merit raise and the evaluation of each employee each year to determine whether he or she is satisfactory or better. Notwithstanding what they might have done, the record in this case indicates that the City Council has been remarkably consistent in exercising its discretion regarding the amount of the annual merit increase. They have usually granted six percent merit increases .... [T]he City Manager’s recommendation to the City Council at the time of the adoption of the 1977-78 budget described the six percent merit increase for that year as the “normal employee merit increases . . . . ”
With regard to the nature of the evaluations which determine whether an employee will receive a merit increase in a given year, there appears to be little room for the exercise of unbridled discretion .... While the evaluation of a particular employee’s performance is to some extent subjective, there is nothing in this record to support a conclusion that the evaluations are accomplished in an arbitrary and capricious manner .... [T]he evaluations are based upon established objective standards which are known to the employees and are applied in an evenhanded manner.

In addition, PERC asserts that the presence of some element of discretion in the granting of merit increases is not enough to bring a case within the Katz doctrine. NLRB v. Hendel Manufacturing Company, Inc., 523 F.2d 138 (2d Cir. 1975). Katz, PERC maintains, is aimed at avoiding the problem encountered with highly discretionary merit increases where there “is no way . .. for a union to know whether or not there has been a substantial departure from past practice . ... ” This problem is obviated where merit increases, although involving some discretion, are made pursuant to a well-established policy of granting increases at specific times as part of the existing wage structure.

We agree with PERC’s conclusion that the Katz doctrine is not controlling herein. There is ample evidence to support PERC’s finding that City’s merit pay system had become an established term and condition of the employment of City’s employees, including bargaining unit employees. City’s unilateral discontinuance of the merit pay increases constituted a clear change in the existing conditions of employment. Accordingly, we affirm PERC’s order finding City guilty of unfair labor practices for its unilateral alteration of the status quo during the pendency of collective bargaining negotiations.

Refusal to Bargain During Pendency of De-certification Petition.

PBA was certified by PERC as the exclusive bargaining agent on December 2, 1976. § 447.307(l)(a), Florida • Statutes (1975). A petition seeking to decertify PBA as the exclusive bargaining agent for the bargaining unit employees was initially filed November 9, 1977. On January 11, 1978, City refused to engage in collective bargaining negotiations with PBA pending resolution of the decertification petition. PERC found that City’s refusal to bargain constituted an unfair labor practice under § 447.501(l)(c) and (a), Florida Statutes (1977). PERC held that the duty to bargain with a certified employee organization continues until revocation of such certification by PERC, relying upon previous precedent. District Board of Trustees, Palm Beach Junior College, and United Faculty of Palm Beach Junior College, 4 FPER 4069 (1978); In Re: The Petition for Declaratory Statement of the District Board of Trustees of Palm Beach Junior College, 4 FPER 4081 (1978); and In Re: The Petition for Declaratory Statement of the City of Daytona Beach, 4 FPER 4082 (1978).

City argues that the filing of a decertifi-cation petition raises, substantial questions as to the union’s majority representation and that the employer, in order to maintain his required neutrality, must refrain from bargaining until the representation issue is resolved. Teleautograph Corporation, 199 N.L.R.B. 892 (1972). Felsenthal Plastics, Inc., 224 N.L.R.B. 1312 (1976); General Iron Corporation, 224 N.L.R.B. 1180 (1976); Es sex International, Inc., 223 N.L.R.B. 121 (1976).

The determination in this case was that the NLRB decisions are factually distinguishable and are unpersuasive due to the differences between the certification procedures under the National Labor Relations Act, 29 U.S.C. § 151 et seq., and Florida’s Public Employees Relations Act, Chapter 447, Part II (PERA). The further finding was that the policies manifested in the Palm Beach Junior College and City of Daytona cases best effectuated the purposes of PERA.

PERC maintains that under the Florida legislative scheme, the duty to bargain arises only after certification. This conclusion is buttressed by § 447.309(1), Florida Statutes (1977), which provides:

After an employee organization has been certified pursuant to the provisions of this part, the bargaining agent for the organization and the chief executive officer of the appropriate public employer or employers, jointly, shall bargain collectively in the determination of the wages, hours, and terms and conditions of the employment of the public employees within the bargaining unit.

[Emphasis supplied].

In Palm Beach Junior College, 4 FPER 4069, supra, PERC stated:

Under the statutory plan set forth in Section 447.307, Florida Statutes, the rights attendant to exclusive collective bargaining representative status and the corresponding duty to bargain collectively arise upon formal certification by the Commission. Certification and the duty to bargain do not arise directly from voluntary recognition by a public employer, or from a presumption of majority status based upon a long contractual relationship between the parties ....
The duty of a public employer to bargain collectively with a certified exclusive collective bargaining representative is coextensive with certification. The filing of a Decertification Petition based upon a 30% showing of interest does not itself remove certification or the duty to bargain. A proper Decertification Petition does, however, secure the rights of unit members to an election by which the desire of the majority of unit members may be conclusively demonstrated. Unless and until certification is revoked by the Commission following a secret ballot election in which the majority of unit members reject representation by [the union], [the employer’s] obligation to bargain collectively remains in effect.

PERC further noted in Palm Beach Junior College, 4 FPER 4081, supra, that:

The obligation to bargain imposed by Section 447.309(1) arises out of certification of the organization as an exclusive bargaining agent, rather than, as in the private sector, as a result of the organization’s maintenance of majority status. While an organization’s continued majority status may be tested by the filing of a representation petition at the appropriate time, the certification remains valid until it is revoked by the Commission following a secret ballot election in which a majority of the employees in the bargaining unit reject continued representation by the organization. Unless and until that occurs, a public employer has a statutory obligation to bargain collectively with the certified employee organization.

Cf., School Board of Pinellas County v. PERC, 354 So.2d 909 (Fla. 2d DCA 1978).

This court has previously recognized the expertise of PERC in the area of labor problems and has noted its special competence in defining and implementing public employees’ substantive rights under PERA. Pasco County School Board v. PERC, 353 So.2d 108, 116 (Fla. 1st DCA 1977); City of Punta Gorda v. PERC, 358 So.2d 81, 83 (Fla. 1st DCA), cert. denied, 365 So.2d 710 (Fla.1978); Board of Regents v. PERC, 368 So.2d 641, 643 (Fla. 1st DCA), cert. denied, 379 So.2d 202 (Fla.1979). We find that PERC’s interpretation of the statutory provisions of PERA enunciated in the present case, and in the Palm Beach Junior College and City of Daytona cases, is within its range of discretion and that interpretation is accordingly approved. Board of Regents v. PERC, supra. We therefore affirm PERC’s order finding that City’s refusal to bargain with PBA during the pendency of the decertification petition constituted an unfair labor practice prohibited by § 447.-501(l)(c) and (a), Florida Statutes (1977).

On the final issue raised, with respect to attorney’s fees, appellant fails to show abuse of discretion in the award under the record circumstances delineated above. American Federation of State, County and Municipal Employees v. City of Venice, 4 FPER 4107 (1978).

The order is affirmed and the request for appellate attorney’s fees is denied.

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


source: Caselaw Access Project

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

license: Public Domain

text:
    CITY OF LAUREL HILL et al., Appellants, v. Joe SANDERS and A. P. Day, Appellees.
    No. UU-436.
    District Court of Appeal of Florida, First District.
    Dec. 16, 1980.
    Rehearing Denied Jan. 22, 1981.
    Gregory M. Anchors of Moore, Anchors & Reid, Niceville, for appellants.
    D. Michael Chesser of Selby, Chesser, Wingard, Barr & Jones, Fort Walton Beach, for appellees.
   ROBERT P. SMITH, Jr., Judge.

Laurel Hill appeals from a circuit court judgment granting a writ of mandamus to require processing of appellees’ petition for municipal recall election according to Section 100.361, Florida Statutes (1979). Both here and in the circuit court the case was presented on the erroneous assumption that the City of Laurel Hill has no provision by charter or ordinance to recall municipal officers, so raising the false issue of whether the Section 100.361 recall procedures made “uniform statewide” by subsection (9) apply to Laurel Hill even though subsection (10) seems to limit application of the uniform procedures to “cities and charter counties which have adopted recall provisions.”

The need to reconcile subsections (9) and (10) is obviated by the fact that Laurel Hill’s charter, evidenced in the record, adopts in Section 7.g. “the provisions of the General Laws of the State of Florida pertaining to ... Municipal elections . . . . ” That language sufficiently references Chapter 100, Florida Statutes, entitled “General, Primary, Special, Bond, and Referendum Elections,” and Section 100.361, entitled “Municipál recall,” to incorporate the latter’s recall procedures into Laurel Hill’s municipal law. The circuit court correctly ordered compliance with Section 100.361.

AFFIRMED.

THOMPSON, J., and WOODIE A. LILES (Retired), Associate Judge, concur.


author: PER CURIAM.

text:
    COTTON BELT INSURANCE CO., and Southern Surety, Inc., Appellants, v. The STATE of Florida, Appellee.
    No. 80-343.
    District Court of Appeal of Florida, Third District.
    Dec. 16, 1980.
    Rehearing Denied Jan. 22, 1981.
    Melvyn Kessler and L. Mark Dachs, Miami, for appellants.
    Janet Reno, State Atty. and Stephen V. Rosin, Asst. State Atty. and Russell R. Kil-linger, Legal Intern, for appellee.
    Before BARKDULL, HENDRY and SCHWARTZ, JJ.
   PER CURIAM.

The unilateral filing by the state of new informations, which merely recast the offenses already alleged in an earlier indictment and informations, did not affect the viability of the first set of charging documents, which were not dismissed or quashed, and therefore did not result in a discharge of the appearance bond posted with respect to them. See, State v. Adjmi, 170 So.2d 340, 343 (Fla.3d DCA 1964); compare, All Florida Surety Co. v. State, 78 So.2d 89 (Fla.1955); Wilcox v. State, 248 So.2d 692 (Fla.4th DCA 1971). The order under review is therefore

Affirmed.


text:
    Henry D. WEBB, as Personal Representative of the Estate of Rachael Ann Webb, Appellant, v. PRESTIGE REALTY, INC., a Florida Corporation, Florida Insurance Guaranty Association, Continental Insurance Company, a Foreign Corporation, Mario Claudio, Pedro Realty, Inc., John D. Palmer, Individually and Allstate Insurance Company, Appellees.
    No. 80-564.
    District Court of Appeal of Florida, Third District.
    Dec. 16, 1980.

      Mandina & Lipsky and Philip J. Mandina, Miami, for appellant.
    Blackwell, Walker, Gray, Powers, Flick & Hoehl and James C. Blecke, Preddy, Kutner & Hardy and G. William Bissett, Louis Winter, Underwood, Gillis, Karcher, Reinert & Valle and Carlos E. Caruso, Pyszka, Kessler & Adams and Steven M. Barnard, Miami, for appellees.
    Before BARKDULL, BASKIN and DANIEL S. PEARSON, JJ.
   PER CURIAM.

Affirmed. Banks v. Mason, 132 So.2d 219 (Fla.2d DCA 1961); Adler v. Copeland, 105 So.2d 594 (Fla.3d DCA 1958); McCormick v. Williams, 194 Kan. 81, 397 P.2d 392 (1964); See also Johnson v. Bathey, 376 So.2d 848 (Fla.1979); Wood v. Camp, 284 So.2d 691 (Fla.1973); Concrete Construction, Inc., of Lake Worth v. Petterson, 216 So.2d 221 (Fla.1968).


author: ORFINGER, Judge.

text:
    James Carlton WEBB, Appellant, v. STATE of Florida, Appellee.
    No. 80-160.
    District Court of Appeal of Florida, Fifth District.
    Dec. 17, 1980.
    Rehearing Denied Jan. 9, 1981.
    James B. Gibson, Public Defender and Ronald K. Zimmet, Chief, Appellate Division, Daytona Beach, for appellant.
    Jim Smith, Atty. Gen., Tallahassee and C. Michael Barnette, Asst. Atty. Gen., Daytona Beach, for appellee.
   ORFINGER, Judge.

Appellant was placed on probation for five years after conviction of a charge of burglary of a dwelling. One of the conditions of probation was that he serve fifty one weeks in the county jail. Appellant was charged with escaping from custody, and after a revocation hearing, the trial court found that he had violated the probation order by escaping, and restored him to the original term of probation on condition that he serve three years in prison.

Appellant contends that there was insufficient evidence to sustain the finding of probation violation and that a three-year prison term is not a valid condition of probation. His first point is not well taken, but the second point has merit.

The argument that there was insufficient evidence to sustain the finding of probation violation is based solely on the fact that the only evidence presented to the trial court at the revocation hearing was that of the probation supervisor who testified to appellant’s custody, and then to his admission of escape. Appellant says that his admission is hearsay, thus insufficient by itself to sustain the finding. This court has previously decided that issue contrary to appellant’s position. In Johnson v. State, 378 So.2d 108 (Fla. 5th DCA 1980), we held that an admission against interest by a defendant is not hearsay. There was sufficient evidence, coupled with defendant’s admissions to give appellant his day in court on the question of violation of the condition of probation. McNeely v. State, 186 So.2d 520 (Fla.2d DCA 1966).

The imposition of a long prison term as a condition of probation has evoked considerable criticism and much comment, and the question now seems to be settled by the recent Supreme Court opinion in Villery v. The Florida Parole and Probation Commission, No. 57,935 (Fla. October 30, 1980). A term of imprisonment as a condition of probation while permissible, • should be rehabilitative and not punitive, and it should not have the effect of negating the parole policy of the State. The maximum period of incarceration which may be imposed as a condition of probation is up to, but not including, one year. Villery, supra.

The judgment of conviction for violation of probation is affirmed. The modification of probation which imposes the three-year prison term as a condition of continued probation is reversed and the cause is remanded to the trial court for re-sentencing. In so doing, the court may modify or continue the probation or may revoke the probation and impose any sentence which it might originally have imposed before placing the appellant on probation.

AFFIRMED in part; REVERSED in part and REMANDED.

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

      . Shead v. State, 367 So.2d 264 (Fla.3d DCA 1979); Olcott v. State, 378 So.2d 303 (Fla.2d DCA 1979); Freeman v. State, 329 So.2d 413 (Fla. 4th DCA 1976).


author: CAMPBELL, Judge.

text:
    Carmine J. MARINO, Appellant, v. STATE of Florida, Appellee.
    No. 79-1995.
    District Court of Appeal of Florida, Second District.
    Dec. 17, 1980.
    Rehearing Denied Jan. 8, 1981.
    Jack O. Johnson, Public Defender, and Paul C. Helm, Asst. Public Defender, Bar-tow, for appellant.

      Jim Smith, Atty. Gen., Tallahassee, and James S. Purdy, Asst. Atty. Gen., Tampa, for appellee.
   CAMPBELL, Judge.

The appellant appeals from a conviction of trafficking in stolen property in violation of section 812.019(1), Florida Statutes (1979). Appellant solicited the sale of property, the subject of the charge, with the belief that it was in fact stolen. Actually, the owner furnished the property to law enforcement officers in order for them to sell it to appellant.

Appellant asserts for the first time on this appeal that section 812.028(3), Florida Statutes (1979), is unconstitutionally over-broad in violation of the first amendment of the United States Constitution and article I, sections 4 and 9, of the Florida Constitution. Section 812.028(3) precludes the defendant from raising as a defense to section 812.-019(1) the fact that the property was not stolen. Appellant cites as support State v. Tomas, 370 So.2d 1142 (Fla.1979). Our supreme court did not address the application of section 812.028(3) in its consideration of that case.

Inasmuch as appellant here did not raise the constitutional issue in the trial court and as we find that it does not constitute fundamental error, the question has been waived and is not subject to being addressed by this court.

The appellant raised two other issues which we consider to be without merit. Appellant’s conviction is therefore affirmed.

BOARDMAN, Acting C. J., and DAN-AHY, J., concur.


text:
    Evelyn R. FLACK, Appellant, v. J. Michael CARTER and Wakulla County Canvassing Board, Appellees.
    No. PP-281.
    District Court of Appeal of Florida, First District.
    Dec. 23, 1980.
    Rehearing Denied Jan. 22, 1981.

      M. Howard Williams, and Timothy D. Harley, Tallahassee, for appellant.
    Benjamin H. Ervin, Monticello, and J. Michael Carter, pro se, for appellee.
    Ronald L. Baker, Crawfordville, for Wa-kulla County Canvassing Board.
    Wilson W. Wright, Tallahassee, for inter-venors.
   PER CURIAM.

In the November 7, 1978 election for the office of judge of the county court for Wakulla County, Florida, the incumbent, Evelyn R. Flack, received two more machine votes than did her challenger, J. Michael Carter. The Wakulla County Canvassing Board, however, after canvassing absentee ballots, certified Carter as the successful candidate by a margin of two absentee ballots. The Board’s action prefaced the following chronology of events.

November 15, 1978-Flack filed a protest of election with the Wakulla County Canvassing Board.
November 17, 1978-Flack filed a complaint in contest of the election alleging irregularities in the absentee ballots.
December 7,1978-A motion to quash service of process was filed.
December 13, 1978-The proper chairman of the Canvassing Board was served with process.
December 20, 1978-Flack filed a motion for temporary injunction seeking to prevent Carter from taking office.
February 8, 1979-The trial judge disposed of several pending motions and granted Flack leave to amend her complaint.
February 20, 1979-Flack filed amended complaint.
March 9, 1979-Motions to dismiss the amended complaint were filed.
July 19, 1979-The amended complaint was dismissed with prejudice.
July 30, 1979-Petition for rehearing and clarification was filed by Flack.
September 13, 1979-The trial judge entered an order clarifying his previous order, but denying the petition for rehearing.
September 24, 1979-Flack filed her notice of appeal.

Except as to the constitutional issue which was expressly not ruled upon, dismissal of the amended complaint was granted as to all points raised in the motion to dismiss. The motion urged as grounds for dismissal Flack’s failure to file timely protest; failure to amend the complaint to include an assertion that challenges to the Voter Certificates were made prior to ballots being removed from the mailing envelopes; failure to exhaust available administrative remedies; lack of jurisdiction; and estoppel.

Section 102.166, Florida Statutes (1977), provides:

(1) Any candidate for nomination or election, or any elector qualified to vote in the election related to such candidacy, shall have the right to protest the returns of the election as being erroneous by filing with the appropriate canvassing board a sworn, written protest.
(a) Such protest shall be filed with the canvassing board prior to the time the canvassing board adjourns or within 5 days of midnight of the date the election is held, whichever last occurs.

Appellant Flack urges that where it is not the clear mandate of the Legislature that time shall be calculated in a given manner and the wording of a statute leaves doubt as to the time in which an act shall be accomplished, resort to the Rules of Civil Procedure is a reasonable and proper option. Rule 1.090(a), Fla.R.Civ.P., provides that “[i]n computing any period of time prescribed or allowed by these rules, by order of court or by any applicable statute, the day of the act, event or default from which the designated period of time begins to run shall not be included.... When the period of time prescribed or allowed is less than seven days, intermediate Saturdays, Sundays and legal holidays shall be excluded in the computation.” For Flack’s protest to have been timely under this rule it is necessary to treat Friday, November 10, 1978, as a legal holiday (Veterans’ Day). We find no basis for such treatment. Section 683.01(n), Florida Statutes (1977), provides that Veterans’ Day shall be observed as a legal holiday on November 11. The fact that the office of the Clerk of the Circuit Court in and for Wakulla County was closed on the 10th does not, without more, make the 10th a legal holiday. We conclude, therefore, that Flack’s protest under § 102.166 was untimely.

Having decided that protest was untimely, we next turn our attention to the issue of whether compliance with § 102.166 is a condition precedent to an election contest under § 102.168, Florida Statutes (1977). We find no Florida cases so holding and in absence of authority to the contrary we are not inclined to read into the statute such a condition. Section 102.166, Florida Statutes (1977), appears to be geared exclusively to the protest of election returns. Election returns are defined as: “The report made to the board of canvassers of the number of votes cast for each candidate, ...” Black’s Law Dictionary, (5th ed. 1979). Flack’s complaint does not challenge the tabulation of votes, but questions whether certain paper ballots should have been counted because of the following alleged illegality:

a. Seven electors were in the county of their residence during the hours the polls were open for voting on election day despite certifications on their Voter’s Certificate that they would not be in the county of their residence on said day during the hours the polls were open for voting.
b. One elector was able, without another’s assistance, to attend the polls despite her certification to the contrary.
c. Ten electors were not entitled to vote because they had changed their permanent residency to a place other than Wakulla County, Florida.
d. Four electors’ Voter’s Certificates were not properly executed or witnessed.
e. Four electors received ballots in violation of the requirements of § 101.62, Florida Statutes.
f. Five electors received assistance from another person in violation of § 101.-051, Florida Statutes.

It is apparent that the appellant’s challenge to the absentee ballots is two-fold: (1) those that are illegal because they contained defects apparent on the Voter’s Certificate, and (2) those that aré illegal for reasons not apparent on the Voter’s Certificate. Section 101.68(2), Florida Statutes (1977), which reads as follows, appears to govern the former: Appellant Flack admittedly failed to protest the canvass of ballots prior to their removal from the envelopes and, by reason thereof, is precluded from subsequently challenging those ballots containing defective Voters’ Certificates. However, we find nothing to bar her remaining challenges. It is the appellant’s position that the majority of her challenges fall within this latter category and should have been considered by the judge of the Circuit Court pursuant to § 102.168, Florida Statutes (1977). We agree and reject the appellees’ argument that the appellant failed to exhaust administrative remedies and should be estopped from contesting the election.

If any elector or candidate present believes that any absentee ballot is illegal due to any defect apparent on the Voter’s Certificate, he may, at any time before the ballot is removed from the envelope, file with the canvassing board a protest against the canvass of such ballot, specifying the precinct, the ballot, and the reason he believes such ballot to be illegal. No challenge based upon any defect in the Voter’s Certificate shall be accepted after the ballot has been removed from the mailing envelope.

In assessing the substantiality of Flack’s election contest, the judge should bear in mind that the primary consideration in such a contest is whether the will of the people has been effected. The Supreme Court of Florida in Boardman v. Esteva, 323 So.2d 259 (Fla.1976), sets forth the following factors for measuring the effect of irregularities on the validity of absentee ballots cast:

a. the presence or absence of fraud, gross negligence, or intentional wrongdoing;
b. whether there has been substantial compliance with the essential requirements of the absentee voting law; and
c. whether the irregularities complained of adversely affect the sanctity of the ballot and the integrity of the election.

The appellant’s challenges should be measured against these criteria.

We accordingly reverse and remand for further proceedings consistent with this opinion.

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


text:
    Rosa V. ORTEGA, as Personal Representative of the Estate of Evelio Ortega (Grillo), Deceased, Appellant, v. GENERAL MOTORS CORPORATION, a Foreign Corporation doing business in the State of Florida, Appellee.
    No. 79-2267.
    District Court of Appeal of Florida, Fourth District.
    Dec. 24, 1980.
    Rehearing Denied Jan. 22, 1981.

      Richard A. Kupfer of Cone, Owen, Wagner, Nugent, Johnson, Hazouri & Roth, West Palm Beach, for appellant.
    Marjorie D. Gadarian of Jones & Foster, West Palm Beach, for appellee.
   WETHERINGTON, GERALD T., Associate Judge.

Rosa V. Ortega appeals an order granting summary judgnient against her on her claim that appellee, General Motors Corporation (GMC) was vicariously liable for the alleged negligence of appellee, South Bay Equipment Co. (South Bay) which allegedly caused the death of her husband, Evelio Ortega Grillo. Her claim of vicarious liability was based upon the theories that South Bay was either the real or apparent agent of GMC. An examination of the undisputed facts of record and the applicable legal principles on the subject requires affirmance of the summary judgment entered by the trial court.

On July 2,1973, while Evelio Ortega Gril-lo was operating his employer’s new 1973 GMC dump truck filled with a load of wet sand, a right rear tire of the truck blew out, causing the truck to go out of control and turn over. Evelio Ortega Grillo suffered fatal injuries from the accident. His wife, Rosa V. Ortega, was appointed administra-trix of his estate.

Appellant, as Administratrix of the Estate of Evelio Ortega Grillo, sued South Bay, the retail dealer who sold the truck to her husband’s employer, and GMC, the manufacturer of the truck, for wrongful death. Theories of negligence, breach of implied and express warranty, and strict liability were alleged against both defendants. In addition to alleging that GMC was itself negligent, appellant alleged that GMC was vicariously liable for negligence committed by South Bay.

Appellant’s vicarious liability theory against GMC was contained in her third amended complaint, in which she alleged that South Bay was GMC’s “dealer/agent with actual, implied or apparent authority in its business of selling trucks.” GMC did not specifically deny this allegation in its answer to the third amended complaint.

Subsequently, appellant and South Bay entered into a pre-trial settlement and the action was dismissed against South Bay. Appellant also executed a release in favor of South Bay. The case continued against GMC on appellant’s allegations that GMC was directly liable for its own tortious conduct and vicariously liable for the negligence of South Bay because South Bay was its real or apparent agent. Both parties moved for summary judgment on the agency issue. The trial court granted GMC’s motion for summary judgment, holding that South Bay was not the real or apparent agent of GMC as a matter of law. The remaining claims against GMC were tried before a jury. The jury returned a verdict in favor of GMC on all counts and the court entered final judgment in its favor. Appellant then filed this appeal.

Appellant’s first point on appeal is that she was entitled to a summary judgment on the agency issue because GMC failed to deny the allegations of the agency contained in the third amended complaint. The record shows, however, that she did not raise this contention in the trial court. Instead, she submitted the agency issue to the trial court for a determination on the merits on motion for summary judgment. Accordingly, appellant cannot raise the issue of GMC’s failure to deny her allegations of agency for the first time on appeal. Cosid v. Bay Steel Products Co., 288 So.2d 277 (Fla. 4th DCA 1974).

Appellant’s next contention is that the dealer franchise agreement between South Bay and GMC gave GMC the right to control South Bay’s methods of operation to such an extent that a jury question was presented as to whether South Bay was an agent of GMC or an independent contractor. The test for determining whether a dealer is an agent or independent contractor was stated in Cawthon v. Phillips Petroleum Company, 124 So.2d 517, 519 (Fla. 2d DCA 1960), as follows:

Where the employee is merely subject to the control or direction of the employer as to the result to be procured, he is an independent contractor; if the employee is subject to the control of the employer as to the means to be used, then he is not an independent contractor.

The thirty (30) page dealer franchise agreement, entitled “GMC Standard Truck Dealer Sales and Service Agreement,” specifically states that South Bay is an independent contractor “solely responsible for any and all expenditures, obligations and responsibilities made, incurred or assumed by Dealer in preparation or performance of Dealer’s obligations and responsibilities under this agreement.”

Appellant contends, however, that notwithstanding this provision, the franchise agreement gave GMC sufficient control over South Bay’s day-to-day operations so as to create an ambiguity in the franchise agreement on the question of control, thus requiring submission of the agency issue to the jury. In support of this contention, appellant lists provisions in the agreement which required South Bay to: 1) obtain GMC’s approval of the location and design of the dealership premises; 2) remain open for business during days and hours which are customary for such businesses in the community and display on the dealership premises advertising signs of a type recommended by GMC; 3) follow a uniform system of accounting specified by GMC and make its records available for inspection by GMC at reasonable times; 4) establish a minimum owned net working capital prescribed by GMC and meet standards set by GMC as to sales and customer service; 5) maintain a parts department and a customer service department; 6) provide service for trucks sold by GMC dealers, including warranty service paid for by GMC; 7) obtain needed service training for members of its service department provided by GMC; 8) refrain from engaging in fraudulent conduct in its dealings with the public.

Although the above provisions of the dealer franchise agreement do confer on GMC the right to control aspects of South Bay’s business, the question of control for agency purposes must be determined by examining all of the rights and duties of the parties under the agreement. Of greatest importance are those rights and duties of the parties which bear most directly and significantly on the right to control the day-to-day operation of South Bay’s business.

It should first be noted that South Bay is independently owned. GMC owns none of South Bay’s stock, nor does GMC share in South Bay’s profits and losses. The owners of South Bay are required to invest a substantial sum of money in order to obtain and keep the dealership. From the ownership standpoint, therefore, South Bay is an independent and separate enterprise from GMC. Independent ownership of a substantial enterprise is an important factor to be considered on the issue of control. An independent owner is less likely to submit to the control of others in the operation of its business than a non-owner.

In addition to being independently owned, South Bay is not regulated by the subject agreement in the hiring, firing or supervising of its employees. South Bay exclusively determines these matters, as well as the wages and other employee benefits provided to its employees. When it buys trucks, parts and accessories from GMC, South Bay obtains title to them and resells them at prices determined by negotiation with its customers. Sales, use or similar taxes on resales of trucks, parts and accessories are the sole responsibility of South Bay. The agreement also recognizes that South Bay has the ultimate responsibility for the successful operation, of the dealership.

A consideration of all of the provisions of the dealer franchise agreement between GMC and South Bay compels the conclusion that, as a matter of law, the method or mode of operation of South Bay’s business on a day-to-day basis is controlled by South Bay as an independent contractor. South Bay, therefore, is not an agent of GMC under the dealer franchise agreement of the parties. This same conclusion has been reached by other courts throughout the country which have construed similar dealer franchise agreements. See, e. g., Arnson v. General Motors Corp., 377 F.Supp. 209 (N.D.Ohio 1974); Quijado Corp. v. General Motors Corp., 253 A.2d 538 (D.C.Ct.App.1969); American Motors Sales Corp. v. The Superior Court, 16 Ariz.App. 494, 494 P.2d 394 (1972); Stansifer v. Chrysler Motors Corp., 487 F.2d 59 (9th Cir. 1973); Washington v. Courtesy Motor Sales, Inc., 48 Ill.App.2d 380, 199 N.E.2d 263 (1964); Smith v. Ford Motor Co., 327 S.W.2d 535 (Mo.App.1959); Westerdale v. Kaiser-Frazer Corp., 6 N.J. 571, 80 A.2d 91 (1951). See also, Paige-Detroit Motor Car Co. v. Pintado, 82 Fla. 210, 89 So. 549 (1921); Drum v. Pure Oil Co., 184 So.2d 196 (Fla. 4th DCA 1966); Cawthon v. Phillips Petroleum Co., supra.

The case of Drexel v. Union Prescription Center, Inc., 582 F.2d 781 (3rd Cir. 1978), cited by .appellant, is distinguishable from the present case. In Drexel, the franchise agreement was subject to the reasonable construction that the supplier reserved the right to control the specific way in which the dealer Conducted its day-to-day business.

Appellant’s final contention is that even if the trial court was correct on the issue of actual agency, the trial court nonetheless erred in granting GMC’s motion for summary judgment on her claim that South Bay was the apparent agent of GMC, and that GMC was consequently estopped to deny the agency. The doctrine of apparent agency is well stated in the case of Sapp v. City of Tallahassee, 348 So.2d 363, 367 (Fla. 1st DCA 1977), in the following words:

[ I]f the principal has held the agent out to the public as being possessed of the requisite authority, and a third person is aware of his authority and has relied on it to his detriment, then the principal is estopped from denying the agent relationship.

Appellant cites four facts which, she asserts, create a question of fact for the jury on the issue of apparent agency:

1. GMC signs were displayed by South Bay;
2. A GMC truck manual with GMC trademarks was given to Evelio Ortega Grillo’s employer upon purchase of the truck;
3. A vehicle invoice with a GMC truck trademark was also given to the employer; and
4. The 9500 Series dump truck purchased by the employer displayed a GMC truck trademark.

These facts, however, are insufficient to create a jury question on the issue of apparent agency.

The fact that South Bay displayed signs advertising that it sold GMC trucks, parts, and accessories, does not lead to the inference that South Bay was an agent of GMC. In Cawthon v. Phillips Petroleum Co., supra, the court held that the maintenance of signs on a dealer’s service station advertising an oil company’s products did not tend to show that the operator of the station was an employee of the oil company instead of an independent contractor. This holding applies with equal force to the situation involved in the present case.

Moreover, the facts that a GMC manual was supplied by South Bay to the purchaser of the truck in question and that GMC trademarks were displayed on the truck and on the invoice given to the purchaser cannot reasonably be said to convey the idea that South Bay was an agent of GMC instead of an independent contractor. Therefore, appellant’s contention that the trial court erred in granting a summary judgment in favor of GMC on the issue of apparent agency is without merit.

Since we hold that the trial court was correct in granting GMC’s motion for summary judgment on the issues of actual and apparent agency, it is unnecessary to consider GMC’s contention that the release given by appellant to South Bay barred appellant’s claim that GMC was vicariously liable for South Bay’s negligence. For the foregoing reasons, the order granting summary judgment is affirmed.

AFFIRMED.

HERSEY and GLICKSTEIN, JJ., concur.


author: DOWNEY, Judge.

text:
    GALLAHAD ASSOCIATES d/b/a Gallahad South and Cherokee Insurance Company, Inc., etc., Appellants, v. Andrea ROSE et al., Appellee.
    No. 80-33.
    District Court of Appeal of Florida, Fourth District.
    Dec. 31, 1980.

      Robert A. Glassman and Law Offices of Leland E. Stansell, Jr., P. A., Miami, for appellants.
    Jeffrey P. Swayman of Kaplan & Jaffe, P. A., Hollywood, for appellee.
   DOWNEY, Judge.

This is an appeal by Cherokee Insurance Company, Inc., and Gallahad Associates from a final order in which the trial court ruled that all insurance coverage provided by Cherokee to Gallahad applied to any negligent acts of defendant Ines Reidi involving plaintiff/appellee Andrea Rose. The court based that ruling on its finding that Reidi, Gallahad’s employee, was acting within the course and scope of his employment when he injured appellee. The coverage issue was severed from the primary personal injury action by Andrea Rose and Hildegarde Rose against Reidi, Gallahad and Cherokee.

Appellant Gallahad is the owner of an apartment complex. Gallahad employed Reidi as a pool boy, whose duties included keeping the pool area clean, checking the pool water chemicals, vacuuming the pool, and providing towels and umbrellas for the apartment tenants. On the day in question he was in the shallow end of the pool “fooling around” with Andrea Rose. As a result, Andrea hit the bottom and chipped several teeth. There was evidence that the management allowed pool attendants to use the pool to cool off during the warm weather and that on many occasions Ines Reidi would play with children in the pool. This was known by both Ines’s father, under whom he worked, and by the Gallahad management.

As the Supreme Court of Florida said in Western Union Telegraph Co. v. Michel, 120 Fla. 511, 163 So. 86 (1935), an employer is liable for torts committed by his servant in a slight deviation or departure from his business unless the deviation or departure amounts to an abandonment of the master’s business. See also: Orr v. Avon Florida Citrus Corporation, 130 Fla. 306, 177 So. 612 (1937); Collazo v. John W. Campbell Farms, 213 F.2d 255 (5th Cir. 1954).

Our study of the record convinces us that there was competent substantial evidence in the record to support the trial judge’s findings as to insurance coverage and Ines Reidi’s scope of employment. Accordingly, the order appealed from is affirmed.

AFFIRMED.

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

      . State Farm Mutual Auto Ins. Co. v. American Hardware, 345 So.2d 726 (Fla.1977). Contra: Ogur v. Mogel, 390 So.2d 105 (Fla. 3rd DCA 1980).


author: PER CURIAM. COBB, Judge,

text:
    Gregory Samuel HARRIS, Appellant, v. STATE of Florida, Appellee.
    No. 80-908.
    District Court of Appeal of Florida, Fifth District.
    Dec. 31, 1980.
    James L. Padgett of Davis, Asbury & Padgett, Crescent City, for appellant.

      Jim Smith, Atty. Gen., Tallahassee, and C. Michael Barnette, Asst. Atty. Gen., Day-tona Beach, for appellee.
   PER CURIAM.

CERTIORARI DENIED on the authority of McGuire v. Nelson, 388 So.2d 42 (Fla. 5th DCA 1980); Holden v. City of Ft. Lauderdale, 286 So.2d 218 (Fla. 4th DCA 1973); Kennington v. Glllman, 284 So.2d 405 (Fla. 1st DCA 1973); Olin’s Rent-A-Car System, Inc. v. Avis Rental Car System, Inc., 135 So.2d 434 (Fla.3d DCA 1961); and State v. Smith, 118 So.2d 792 (Fla. 1st DCA 1960).

DAUKSCH, C. J., and FRANK D. UP-CHURCH, Jr., J., concur.

COBB, J., dissents with opinion.

COBB, Judge,

dissenting:

I dissent from the denial of certiorari by the majority on authority of Haile v. Bullock, 83 Fla. 538, 91 So. 683 (1922); Stipp v. State, 371 So.2d 712 (Fla. 4th DCA 1979), cert. denied, 383 So.2d 1203 (Fla.1980); Johnson v. State, 249 So.2d 470 (Fla.3d DCA 1971), cert. discharged, 280 So.2d 673 (Fla.1973); and State v. Smith, 118 So.2d 792 (Fla. 1st DCA 1960).


text:
    Andrew Lanier JACKSON, Appellant, v. STATE of Florida, Appellee.
    No. 80-220.
    District Court of Appeal of Florida, Fifth District.
    Dec. 31, 1980.
    James B. Gibson, Public Defender, and Ronald K. Zimmet, Chief, Appellate Division, Asst. Public Defender, Daytona Beach, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and C. Michael Barnette, Asst. Atty. Gen., Day-tona Beach, for appellee.
   PER CURIAM.

This is an appeal from a judgment and sentence entered by the Circuit Court for Volusia County, Florida. The public defender filed an Anders motion and brief, requesting leave to withdraw as counsel for appellant and representing to this court that no reversible error appears. On May 14, 1980, this court gave the appellant thirty (30) days within which to file a brief in his own behalf. No such brief has been filed.

The defendant entered a plea of guilty, therefore this court does not have jurisdiction to review the judgment. Fla.R.App.P. 9.140(b). This court does have jurisdiction to review the sentence. Fla.R.App.P. 9.140(b)(1)(D).

The court has reviewed the brief and the record herein and no reversible error appears. The motion of the public defender to withdraw is hereby granted and the sentence is hereby affirmed.

AFFIRMED.

ORFINGER, SHARP and COWART, JJ„ concur.

      . Anders v. California, 386 U.S. 738, 87 S.Ct. 1509, 12 L.Ed.2d 723 (1967).


text:
    Ransom L. MOODY, Appellant, v. STATE of Florida, Appellee.
    No. 80-108.
    District Court of Appeal of Florida, Fifth District.
    Dec. 31, 1980.
    James B. Gibson, Public Defender, and Ronald K. Zimmet, Chief, Appellate Division, Asst. Public Defender, Daytona Beach, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Phillip D. Havens, Asst. Atty. Gen., Dayto-na Beach, for appellee.
   PER CURIAM.

This is an appeal from a judgment and sentence imposed upon the appellant pursuant to a plea of guilty. Appellant’s court appointed counsel has filed an Anders motion and brief requesting leave to withdraw as counsel for appellant and representing to this court that no reversible error appears. On May 1, 1980, this court gave appellant thirty (30) days within which to file a brief in his own behalf. No such brief has been filed. The court has reviewed counsel’s brief and the record herein and no reversible error appears. Any question of the knowing and voluntary nature of the plea should be presented to the court in a 3.850 motion. The motion of the Public Defender to withdraw is hereby granted, and this appeal dismissed.

ORFINGER, SHARP and COWART, JJ., concur.

      . Anders v. California, 386 U.S. 738, 87 S.Ct. 1509, 12 L.Ed.2d 723 (1967).


text:
    David Wayne SANFORD, Appellant, v. STATE of Florida, Appellee.
    No. 79-274.
    District Court of Appeal of Florida, Fifth District.
    Dec. 31, 1980.
    Richard L. Jorandby, Public Defender, and Tatjana Ostapoff, Chief, Appellate Division, West Palm Beach, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Phillip D. Havens, Asst. Atty. Gen., Dayto-na Beach, for appellee.
   PER CURIAM.

This is an appeal from a judgment and sentence entered by the Circuit Court for Orange County, Florida. The public defender filed an Anders motion and brief, requesting leave to withdraw as counsel for appellant and representing to this Court that no reversible error appears. On May 22,1980, this Court gave the appellant thirty (30) days within which to file a brief in his own behalf. No such brief has been filed. The court has reviewed the brief and record herein and no reversible error appears. The motion of the public defender to withdraw is hereby granted and the judgment and sentence are hereby affirmed.

AFFIRMED.

ORFINGER, SHARP and COWART, JJ., concur.

      . Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967).


text:
    D. D. JACKSON d/b/a Jackson’s Construction Company, Appellant, v. Joseph HARDRICK and Vinell Hardrick, his wife, Appellees.
    No. 79-82.
    District Court of Appeal of Florida, Fifth District.
    Dec. 31, 1980.
    Sam E. Murrell & Sons, Orlando, for appellant.
    Emery H. Rosenbluth, Jr., Orlando, for appellees.
   PER CURIAM.

REVERSED on the authority of Stenholm v. Calbeck, 265 So.2d 531 (Fla. 2d DCA 1972).

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


text:
    Carl Eugene BROWN, Appellant, v. STATE of Florida, Appellee.
    No. 79-6.
    District Court of Appeal of Florida, Fifth District.
    Dec. 31, 1980.
    Richard L. Jorandby, Public Defender, and Chuck Peters, Asst. Public Defender, West Palm Beach, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Phillip D. Havens, Asst. Atty. Gen., Dayto-na Beach, for appellee.
   PER CURIAM.

Affirmed on the authority of State v. Cain, 381 So.2d 1361 (Fla.1980). See also, Carter v. State, 382 So.2d 871 (Fla. 5th DCA 1980).

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


author: SCHWARTZ, Judge.

text:
    Jeffrey Thomas FOXX, Appellant, v. The STATE of Florida, Appellee.
    No. 80-156.
    District Court of Appeal of Florida, Third District.
    Jan. 6, 1981.

      Joel Hirschhorn and Harry M. Solomon, Miami, for appellant.
    Jim Smith, Atty. Gen., and Calvin L. Fox, Asst. Atty. Gen., for appellee.
    Before SCHWARTZ, NESBITT and BASKIN, JJ.
   SCHWARTZ, Judge.

Under the “plain view” doctrine, the trial judge correctly declined to suppress the cocaine found in an amber bottle seen in and taken from the defendant’s car. On this issue, the facts are indistinguishable from those in State v. Hall, 376 So.2d 276 (Fla. 3d DCA 1979), cert. denied, 386 So.2d 637 (Fla.1980), which so held. Hence, the judgment and sentence of one year in the county jail for possession of cocaine, as charged in count one, is affirmed. Since the defendant received only concurrent sentences on each of the three remaining counts of the information, we need not address the propriety of the seizure of the other items of contraband involved in those charges. Jacobs v. State, 389 So.2d 1054 (Fla. 3d DCA 1980).

Affirmed.

      . There is no eligibility for parole as to a one year county jail sentence, see § 947.16(1), Fla. Stat. (1979); Villery v. Florida Parole and Probation Commission (Fla.1980). It is therefore clear that the defendant can suffer no adverse collateral consequences from his convictions on counts two, three, and four, which might preclude the application of the concurrent sentence rule adopted in Jacobs, infra. .

      . Our disposition of the remaining issues on this ground is not to be taken as an approval of the warrantless opening of a locked steel box found in the trunk of the vehicle. This was clearly improper. Arkansas v. Sanders, 442 U.S. 753, 99 S.Ct. 2586, 61 L.Ed.2d 235 (1979); Cobb v. State, 378 So.2d 82 (Fla. 3d DCA 1979), and cases cited.


author: DANIEL S. PEARSON, Judge.

text:
    George Thomas BAILEY, III, Appellant, v. Mabel Moon BAILEY, Appellee.
    No. 80-903.
    District Court of Appeal of Florida, Third District.
    Jan. 6, 1981.

      Greene & Cooper and Sharon L. Wolfe, Major & Logan, Miami, for appellant.
    Proby & Adkins and H. Lawrence Hardy, Coral Gables, for appellee.
    Before BARKDULL, BASKIN and DANIEL S. PEARSON, JJ.
   DANIEL S. PEARSON, Judge.

George Bailey sought a decrease in the alimony he was required to pay his ex-wife, Mabel, pursuant to an earlier final judgment of dissolution. Mabel hired counsel to counter George’s efforts and moved that her attorneys’ fees and costs be taxed against George. The trial court denied George’s motion to modify, reserving jurisdiction to later award attorneys’ fees and costs to Mabel. George appealed from the denial of his motion to modify. While that appeal was pending, the trial court entered an order awarding Mabel $5,000 in attorneys’ fees and $626.41 in costs. George took a second appeal, the one we now decide, contending that the order awarding attorneys’ fees and costs to Mabel was void because the trial court was without jurisdiction to enter such an order while George’s initial appeal was pending in this court.

We affirm the trial court and hold that where a trial court, in any proceedings under Chapter 61, Florida Statutes (1979), including modification proceedings, has reserved jurisdiction to make a later award of attorneys’ fees, its jurisdiction to do so is unaffected by the fact that one of the parties has appealed from the underlying judgment or order and that such an appeal is pending when the trial court hears and decides the issue of attorneys’ fees.

I.

The impediment to the jurisdiction of the trial court to conduct proceedings and enter orders once an appeal has been taken in that very case is not, as George Bailey suggests, absolute. Whether the trial court lacks jurisdiction depends not simply on the fact that an appeal in the case has been taken and is pending, but rather on the nature of the action being taken by the trial court in relation to the subject matter of the pending appeal. If what the trial court does while the appeal is pending cannot affect or interfere with the subject matter of the appeal, and thus impinge upon the appellate court’s power and authority to decide the issues presented to it by the appeal, then the trial court can act. The jurisdiction of the appellate court is exclusive only as to the subject matter of the appeal. Willey v. W. J. Hoggson Corp., 89 Fla. 446, 105 So. 126 (1925). Compare Sunrise Beach, Inc. v. Phillips, 181 So.2d 169 (Fla. 2d DCA 1965) (trial court had jurisdiction to issue an alias summons, since this action did not encroach upon the appellate court’s jurisdiction to determine the validity of a prior summons), with Veiner v. Veiner, 364 So.2d 834 (Fla. 3d DCA 1978) (where appeal challenges order allowing attorneys’ fee, trial court is without jurisdiction to enter judgment on order); Blum v. Blum, 382 So.2d 52 (Fla. 3d DCA 1980) (trial court is without jurisdiction to enter post-appeal orders which modify final judgment appealed from); De La Portilla v. De La Portilla, 304 So.2d 116 (Fla.1974) (trial court is without jurisdiction to enter final judgment while wife’s interlocutory appeal from an' order striking her counterclaim and affirmative defenses was pending). See also Liberman v. Rhyne, 248 So.2d 242 (Fla. 3d DCA 1971).

The appeal which George Bailey asserts prevented the trial court from awarding attorneys’ fees and costs was his appeal from the trial court’s order rejecting his attempt to reduce the alimony to be paid to his ex-wife. The later award of attorneys’ fees to Mrs. Bailey could not affect the issues or outcome of that appeal, and could be made by the trial court without impairing the efficacy of the pending appellate proceedings. Thus, the trial court had jurisdiction to enter the order awarding fees to Mrs. Bailey.

H.

We are also of the view that the trial court’s award of attorneys’ fees during the pendency of the appeal is authorized by Florida Rule of Appellate Procedure 9.600(c), which provides:

“Dissolution of Marriage Actions. In dissolution of marriage actions the lower tribunal shall retain jurisdiction to enter and enforce orders awarding separate maintenance, child support, alimony, or other awards necessary to protect the welfare and rights of any party pending appeal, including costs and attorney’s fees. Review of such orders shall be by motion filed in the court within 30 days of rendition. The receipt or payment of funds under an order awarding separate maintenance, child support or alimony shall not prejudice the rights of appeal of any party.”

Admittedly, this rule can be read to authorize only attorneys’ fees incurred in connection with services rendered in the trial court during the pendency of the appeal. But a restrictive reading is neither dictated by the language of the rule, nor the equalization purpose of these fees in matrimonial matters. We choose to read the rule more broadly and in that respect align ourselves with our sister court’s holding in Smith v. Smith, 382 So.2d 1242 (Fla. 2d DCA 1980).

Affirmed.

      . After all the events pertinent to the present appeal had taken place, we affirmed the trial court’s order refusing to modify alimony. See Bailey v. Bailey, 386 So.2d 63 (Fla. 3d DCA 1980).

      . One hearing on the motion to tax attorneys’ fees and costs was held prior to the date upon which George Bailey filed his notice of appeal. A second hearing and the entry of the court’s order occurred after the appeal was filed. If the trial court was without jurisdiction to proceed, the fact that the proceedings commenced before the notice of appeal was filed would be of no significance.

      . We need not further discuss the post-appeal cost award which the trial court clearly had jurisdiction to make despite the pending appeal. Roberts v. Askew, 260 So.2d 492 (Fla.1972).

      . The amount of the fee and cost award is not in issue.

      . A trial court is without jurisdiction to make an award of fees and costs after final judgment in the absence of a reservation of jurisdiction. Oyer v. Boyer, 383 So.2d 717 (Fla. 4th DCA 1980); McCallum v. McCallum, 364 So.2d 97 (Fla. 4th DCA 1978); Church v. Church, 338 So.2d 544 (Fla. 3d DCA 1976); Frumkes v. Frumkes, 328 So.2d 34 (Fla. 3d DCA 1976). The issue of whether the trial court has reserved jurisdiction is totally separate from the issue of whether, having reserved it, its jurisdiction is divested by a pending appeal.

      . This lack of jurisdiction in a trial court to modify the final judgment being appealed renders it without jurisdiction to entertain a Florida Rule of Civil Procedure 1.540(b) motion while an appeal is pending in the absence of the appellate court’s relinquishment of jurisdiction. Glatstein v. City of Miami, 391 So.2d 297 (Fla. 3d DCA 1980); Weinschel v. Weinschel, 368 So.2d 388 (Fla. 3d DCA 1979).

      . The purpose of an award of attorneys’ fees in proceedings for dissolution of marriages or enforcement or modification of proceedings attendant upon the marital relationship, see Section 61.16, Florida Statutes (1979), is to equalize the abilities of the parties to secure competent legal counsel. Jassy v. Jassy, 347 So.2d 478 (Fla. 2d DCA 1977). The award is not predicated upon being the successful party in the litigation and is thus not dependent on the ultimate outcome of the appeal. In the latter case, the attorneys’ fees award is inextricably tied to the pending appeal. While it cannot be accurately said that the fee award interferes with the appellate jurisdiction under these circumstances, but see Wilson Realty, Inc. v. David, 369 So.2d 75 (Fla. 2d DCA 1979), it can be said that the fee award is premature.
      The holding in Wilson Realty, Inc. v. David, supra, is suspect in light of Roberts v. Askew, supra, n. 3. In Roberts, the court stated that the trial court has jurisdiction to enter a cost award during the pendency of an appeal. Since the recovery of costs, even as the recovery of attorneys’ fees, where provided for, is dependent (in a non-matrimonial matter) on the recovery of a favorable judgment, see § 57.041, Fla.Stat. (1979), it would appear that both costs and attorneys’ fees can be awarded during the pendency of an appeal. See generally Allen v. Estate of Dutton, 384 So.2d 171 (Fla. 5th DCA 1980) (approving a post-appeal attorneys’ fee award under Section 57.105, Florida Statutes (1979), because they could be deemed costs under Chapter 57, and thus within the ambit of Roberts, not Wilson Realty). Moreover, we do not agree that the test to determine loss of jurisdiction employed in Wilson Realty, i. e., whether the trial court is proceeding in a matter related to the final judgment, is the proper one. In our view, the proper test is whether the trial court is proceeding in a matter which affects the subject matter on appeal.

      . Smith, holding that Rule 9.600(c) gives the trial court jurisdiction to make an award of attorneys’ fees notwithstanding the pendency of an appeal, receded from that court’s contrary holding in Judge v. Judge, 370 So.2d 833 (Fla. 2d DCA 1979), in which Rule 9.600(c) was not considered. To the extent, therefore, that Smith stands for the proposition that absent the rule, there would be no jurisdiction in the trial court to award fees, we would disagree with the Second District for the reasons set forth in the first part of this opinion. In our view, the pending appeal did not divest the lower tribunal of jurisdiction, and Rule 9.600(c), which presupposes a divestiture, is only an alternative justification for the trial court’s order. Of course, reliance on this rule is not appropriate to justify trial court orders not contemplated by the rule on the theory that they are made to protect the welfare and rights of the parties. See, e. g., Johnson v. Ferguson, 383 So.2d 715 (Fla. 3d DCA 1980).


author: COWART, Judge.

text:
    AETNA FIRE UNDERWRITERS INSURANCE COMPANY, a foreign corporation, Appellant, v. Clifford M. BROWN, Appellee.
    No. 80-1209.
    District Court of Appeal of Florida, Fifth District.
    Jan. 7, 1981.

      Jon E. Johnson, of Smalbein, Eubank, Johnson, Rosier & Bussey, P. A., Rockledge, for appellant.
    William H. Roundtree, Cocoa, for appel-lee.
   ON MOTION TO DISMISS APPEAL

COWART, Judge.

Appellant appeals an order denying its claim of setoff against an arbitration award for the appellee. The order is not an ap-pealable final order because it does not end the judicial labor in the cause. S.L.T. Warehouse Co. v. Webb, 304 So.2d 97 (Fla.1974). It is not appealable under section 682.20(l)(c), Florida Statutes, as the appellant contends, because it does not confirm or deny confirmation of the arbitration award. It is not an appealable non-final order under Florida Rule of Appellate Procedure 9.13G(a)(3)(c)(iv) because it does not decide liability in favor of one seeking affirmative relief, but instead denies a claim against the party.

Until the lower court confirms or denies the arbitration award, this court has no jurisdiction. The appellee’s motion to dismiss is granted and the appeal is

DISMISSED.

ORFINGER and FRANK D. UP-CHURCH, Jr., JJ., concur.


text:
    Gerald Dean JOLLY, Appellant, v. STATE of Florida, Appellee.
    No. 80-618.
    District Court of Appeal of Florida, Fifth District.
    Jan. 7, 1981.

      Gerald Dean Jolly, pro se.
    No appearance for appellee.
   PER CURIAM.

Appellant Gerald Dean Jolly pleaded guilty to shooting into an occupied vehicle and was sentenced to three years imprisonment. Contending that the trial judge incorrectly believed that he was required to impose the three-year minimum sentence for the use of a firearm, appellant filed a motion to correct the sentence pursuant to rule 3.800, Florida Rules of Criminal Procedure. The motion was denied.

Appellant was charged with shooting into an occupied vehicle in violation of section 790.19, Florida Statutes, a second degree felony punishable by a term of imprisonment not exceeding fifteen years. He was also charged with shooting into a dwelling. Appellant pleaded guilty to shooting into an occupied vehicle on the condition that the other count be nol prossed and that the three-year sentence be imposed. The record reflects that the trial judge, the prosecutor and the defense counsel believed that the judge had no discretion to sentence appellant to other than the three-year sentence under the statute.

Shooting into an occupied vehicle, however, is not one of the enumerated offenses for which the three-year minimum sentence must be imposed. Therefore, the trial court did err in accepting a guilty plea conditioned upon the imposition of the minimum sentence pursuant to a statute which was not applicable.

As the negotiations were based on a material mistake of law, the plea was invalid and no legal sentence could be imposed. The remedy, in these circumstances, is not to correct the sentence but to set aside the plea (and the consequent judgment and sentence), and to reinstitute the two charges pending against the defendant prior to the invalid plea. See Fla.R.Crim.P. 3.170(f), 3.171, and 3.172. Thus, appellant should have filed a 3.850 motion to vacate the judgment and sentence and his 3.800 motion to correct was properly denied.

The 3.800 motion as filed does not substantially comply with the requirements of rule 3.850. See Saxon v. State, 384 So.2d 35 (Fla. 5th DCA 1980). Even if we treated the motion as a 3.850 motion, we would set aside the judgment as well as the sentence, not merely remand for resentencing. If the foundation of the sentence is defective, a new sentence cannot correct it. Only a new plea negotiation or a trial can remedy the problem at this point. To let the plea and judgment stand would give the defendant the benefits of his bargain-/, e., a three-year sentence cap and dismissal of the other charge-and would deny the state what it bargained for: a mandatory three-year sentence.

The state’s negotiation was clearly based upon the premise that the defendant would receive a mandatory three-year sentence. If the plea negotiation is not binding upon the defendant, then it is not binding upon the state. The nolle prosequi, entered before jeopardy attached on the charge for shooting into a dwelling, should not operate as an acquittal nor prevent further prosecution if the negotiated plea is not binding. See Bucolo v. Adkins, 424 U.S. 641, 96 S.Ct. 1086, 47 L.Ed.2d 301 (1976).

If the defendant chooses not to be bound by the misconceived bargain, he is entitled to make that decision. Cf. Freeman v. State, 376 So.2d 294 (Fla.2d DCA 1979). But, in that event, the nolle prosequi of the companion case should not stand. See Brown v. State, 367 So.2d 616 (Fla.1979). The speedy trial period would exclude the period between the acceptance and the withdrawal of the original plea. Wilkinson v. State, 322 So.2d 620 (Fla.3d DCA 1975).

However, due to the fact that a post-conviction motion may be raised and ruled upon years after imposition, the state may no longer have the witnesses and other evidence necessary to pursue a trial after a defendant successfully has his judgment and sentence vacated. Therefore, in a situation involving a reduction of sentence in contravention of the plea bargain, the state should be given the option of either agreeing that both the judgment and sentence should be vacated and taking the defendant to trial on all original charges, or agreeing that only the excessive sentence should be vacated, while having the judgment stand and allowing the defendant to be resen-tenced in accordance with the principles enunciated in North Carolina v. Pearce, 395 U.S. 711, 89 S.Ct. 2072, 23 L.Ed.2d 656 (1969).

The trial court’s denial of appellant’s 3.800 motion is affirmed without prejudice to his right to file an appropriate 3.850 motion to vacate the judgment and sentence.

AFFIRMED.

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

      . § 790.19, Fla.Stat. (1979).

      . Section 775.087(2), Florida Statutes (1979), provides:
      (a) Any murder, sexual battery, robbery, burglary, arson, aggravated assault, aggravated battery, kidnapping, escape, breaking and entering with intent to commit a felony, or aircraft piracy, or any attempt to commit the aforementioned crimes; or
      (b) Any battery upon a law enforcement officer or firefighter while the officer or firefighter is engaged in the lawful performance of his duties and who had in his possession a ‘firearm,’ as defined in s. 790.001(6), or “destructive device,” as defined in s. 790.001(4), shall be sentenced to a minimum term of imprisonment of 3 calendar years. Notwithstanding the provisions of s. 948.01, adjudication of guilt or imposition of sentence shall not be suspended, deferred, or withheld, nor shall the defendant be eligible for parole or statutory gain-time under s. 994.27 or s. 994.-29, prior to serving such minimum sentence.

      . Rule 3.800 provides for the correction and reduction of sentences.

      . § 775.082(3)(c), Fla.Stat. (1979).


text:
    Joseph LAWRENCE, Appellant, v. STATE of Florida, Appellee.
    No. 80-551.
    District Court of Appeal of Florida, Fifth District.
    Jan. 7, 1981.
    James B. Gibson, Public Defender, and Ronald K. Zimmet, Chief, Appellate Division, Asst. Public Defender, Daytona Beach, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Phillip D. Havens, Asst. Atty. Gen., Dayto-na Beach, for appellee.
   PER CURIAM.

This is an appeal from a judgment and sentence pursuant to appellant’s plea of guilty. The Public Defender has filed an Anders motion and brief requesting leave to withdraw as counsel for appellant and representing to this court that no reversible error appears. On July 10, 1980, the Fifth District Court of Appeal gave appellant thirty (30) days within which to file a brief in his own behalf. No such brief has been filed. The court has reviewed counsel’s brief and the record herein and no reversible error appears. Any question of the voluntariness of a plea should be presented in the lower court by a rule 3.850, Florida Rules of Criminal Procedure, motion. The motion of the Public Defender to withdraw is granted and the appeal is hereby dismissed.

DAUKSCH, C. J., and COBB and FRANK D. UPCHURCH, Jr., JJ., concur.

      . Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967).


text:
    Arthur R. OKEY and Bobbie Okey, his wife, Appellants, v. MONARCH INSURANCE COMPANY OF OHIO, INC., Appellee.
    No. 80-589.
    District Court of Appeal of Florida, Fifth District.
    Jan. 7, 1981.

      Steven Burrage, Orlando, for appellants.
    E. Peyton Hodges and A. Craig Cameron, Daytona Beach, for appellee.
   PER CURIAM.

The appellants, the Okeys, brought an action against their insurer, Monarch Insurance Company of Ohio, Inc., seeking recovery under their policy for damage to their house by fire. Monarch alleged in defense that the fire resulted from arson performed by the Okeys or their agent or agents. The plaintiffs were granted summary judgment on the issue of liability and trial was held on the issue of damages, the jury finding that the Okeys had sustained $21,000 of damage. In the meantime, the Fourth District Court of Appeal reversed the summary judgment for the Okeys, holding that there existed sufficient circumstantial evidence of the Okeys’ connection with the arson to present a jury question. Monarch Insurance Co. of Ohio, Inc. v. Okey, 370 So.2d 1153 (Fla.4th DCA 1978).

Upon remand, trial was limited to the question of liability. The Okeys stipulated that the fire was the result of arson, so the only issue to be tried was the Okeys’ connection, if any, to the arson. This trial resulted in a verdict and final judgment for Monarch. We reverse this judgment because of the improper admission of evidence.

Nason, a neighbor of the Okeys, was allowed to testify over objection that Hurley, an uncle of the Okeys’ son-in-law, told him that prior to the fire, the Okeys had replaced the good furniture in the house with items of poor quality. This testimony was inadmissible hearsay, Lombardi v. The Flaming Fountain, Inc., 327 So.2d 39 (Fla.4th DCA 1976), and its admission was highly prejudicial to the plaintiffs’ case.

Monarch had Carter, whose truck was found at the scene with the engine warm, testify to his activities on the day of the fire. He testified that he had left his truck at the Okey house at about 6:00 p. m. for repair of an overheating problem. Monarch then impeached Carter’s testimony with that of the fire chief, who stated that Carter had told him that Carter had been to the Okey house at 4:00 p. m. to feed the Okeys’ dog.

One seeking to impeach his own witness can do so only when he has been surprised by the witness’ testimony and the testimony is actually prejudicial to his case. Foremost Dairies, Inc., of the South v. Cutler, 212 So.2d (Fla.4th DCA 1968). Monarch cannot claim to have been surprised by Carter’s testimony, since it was consistent with his pre-trial deposition. Admission of this testimony was not harmless error, since it reflected on the credibility of a key witness.

The trial was also marked by several incidents which should have resulted in a mistrial. Prior to trial, the Okeys stipulated that the fire was started by arson, which left for trial the issue of whether the arson was committed by the Okeys or their agents. In his opening statement, defense counsel made the statement that the plaintiffs had “admitted arson.” Defense counsel asked the fire marshal if plaintiffs counsel had accused him of conspiring against the plaintiffs. The jury was sent from the courtroom so many times in this hotly contested trial that one juror remarked that he was being “paid for hiking.”

The trial judge recognized the prejudicial effect of these occurrences, as he stated that he would have declared a mistrial, had this been a criminal case. However, he neglected to do so here because of his reluctance to reschedule the cause for its third trial. We are convinced that a mistrial should have been declared because the cumulative effect of these errors deprived the jury of the calm and considered atmosphere in which it should determine its verdict. See Seaboard Air Line Railroad Co. v. Ford, 92 So.2d 160 (Fla.1956).

The judgment for the appellees is reversed and the cause is remanded for new trial.

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


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

text:
    David M. PORTER, Appellant, v. Volie A. WILLIAMS, Jr., Appellee.
    No. 80-488.
    District Court of Appeal of Florida, Fifth District.
    Jan. 7, 1981.
    David M. Porter, pro se.
    Jim Smith, Atty. Gen., Tallahassee, and Phillip D. Havens, Asst. Atty. Gen., Dayto-na Beach, for appellee.
   FRANK D. UPCHURCH, Jr., Judge.

Appellant, the Public Defender of the Eighteenth Judicial Circuit, appeals from an order holding him in contempt of court for his failure to personally appear at a sentencing hearing.

The Public Defender had been appointed to defend Willie Evans who had been charged with armed robbery. Responsibility for the case was assigned to an assistant public defender. On March 7, 1980, the judge addressed a letter to appellant advising him that he was expected to be present on April 3 at Evans’ sentencing. The Public Defender’s office forwarded the letter to the assistant, but unknown to appellant, the assistant was outside the circuit at the time of the hearing on April 3.

When appellant failed to appear at the hearing, Judge Williams had a bailiff inquire as to his whereabouts. Another assistant arrived at the courtroom and the court proceeded with the sentencing. Judge Williams found appellant in contempt and fined him $100.00 for his failure to appear. Following this adjudication, appellant appeared and was told by Judge Williams to ask the court reporter what transpired. No opportunity was afforded to appellant to explain the reasons for his absence.

Was appellant properly adjudged in contempt of court? We think not and reverse.

Contempt is defined in rule 3.830, Florida Rules of Criminal Procedure, which provides that the judgment of guilt of contempt shall include a recital of those facts upon which the adjudication of guilt is based. The rule also provides that prior to the adjudication of guilt the judge shall inform the defendant of the accusation against him and inquire as to whether he has any cause why he should not be adjudged guilty. The defendant also is to be given the opportunity to present evidence of excusing or mitigating circumstances.

For an indirect criminal contempt, rule 3.840, Florida Rules of Criminal Procedure, an order to show cause is to be issued giving the time and place of a hearing, the essential facts constituting the contempt and requiring defendant to appear and show cause why he should not be held in contempt of court. Indirect criminal contempt occurs where the act constituting the contempt is committed out of the presence of the court. Pugliese v. Pugliese, 347 So.2d 422 (Fla.1977). Where the act is committed in the immediate presence of the court, the proceeding to punish is for direct criminal contempt. Id.

Non-appearance pursuant to an order of the court is normally considered a direct criminal contempt since it is committed in the immediate view and presence of the court. See, e. g., Sandstrom v. State, 390 So.2d 448 (Fla. 4th DCA 1980). Therefore, summary punishment is proper, but the court failed to follow the procedures defined in rule 3.830.

We therefore reverse and remand to the trial court for further proceedings consistent with the requirements of rule 3.830.

REVERSED and REMANDED.

COBB and COWART, JJ., concur.


author: SHARP, Judge.

text:
    Stephen Richard WATSON, Appellant, v. STATE of Florida, Appellee.
    No. 80-372.
    District Court of Appeal of Florida, Fifth District.
    Jan. 7, 1981.
    James B. Gibson, Public Defender, and James R. Wulchak, Asst. Public Defender, Daytona Beach, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and C. Michael Barnette, Asst. Atty. Gen., Day-tona Beach, for appellee.
   SHARP, Judge.

Both parties agree that error was committed when appellant was sentenced pursuant to a plea agreement to both first degree felony murder and the underlying felony of armed robbery. On the authority of State v. Pinder, 375 So.2d 836 (Fla.1979), we vacate the judgment and sentence for armed robbery.

ORFINGER and COWART, JJ., concur.


text:
    Anthony John DEALTO, Appellant, v. STATE of Florida, Appellee.
    No. 80-232.
    District Court of Appeal of Florida, Fifth District.
    Jan. 7, 1981.
    Joseph A. Rosier, Altamonte Springs, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Edwin H. Duff, III, Asst. Atty. Gen., Day-tona Beach, for appellee.
   COWART, Judge.

Appellant, aged seventeen, was charged with robbery and aggravated assault by a direct information filed under section 39.-04(2)(e)4., Florida Statutes,

Appellant contends that section 39.-04(2)(e)4., Florida Statutes, authorizing a direct information as to a sixteen or seventeen year old offender, is in conflict with section 39.02(5)(c), Florida Statutes, which requires indictment for a life offense, and appellant also attacks the first statute as an ex post facto law. Appellant further contends, as he is a juvenile, the juvenile division of the circuit court had and retained jurisdiction over him under section 39.02, Florida Statutes; that since robbery is a life offense, the only way jurisdiction over him can be transferred from the juvenile division to the criminal division of the circuit court is by waiver hearing, waiver, or indictment; that none of these events occurred; that the juvenile division having jurisdiction and appellant being detained, the twenty-one day time limitation in section 39.032(5)(c), Florida Statutes, for holding an adjudicatory hearing on a detained child, the forty-five day time limitation in section 39.05(6), Florida Statutes, for filing a delinquency petition, and the ninety day time limitation in section 39.05(7)(a), Florida Statutes, for holding an adjudicatory hearing, all were exceeded thereby requiring appellant’s discharge.

The constitutionality of section 39.04(2)(e)4., Florida Statutes (Supp.1978), was upheld in State v. Cain, 381 So.2d 1361 (Fla.1980) [1980 F.L.W. 163], and in Gilmore v. State, 390 So.2d 69 (Fla.1980) [1980 F.L.W. 563], and in the latter case the application of that statute was held not to be ex post facto.

In Collins v. State, 381 So.2d 328 (Fla. 5th DCA 1980), a case involving chapter 39 prior to the 1978 amendment adding section 39.04(2Xe)4., after a waiver hearing under section 39.02(5)(a), Florida Statutes, the juvenile court transferred to the criminal division of the circuit court a juvenile charged with the life felony of robbery for trial on an information. On appeal this court held that although the juvenile was charged with a life offense an indictment under section 39.02(5)(c), Florida Statutes, was not the exclusive route to the criminal division of the circuit court for trial as an adult and that the State could properly proceed by waiver hearing and information. Although in Collins the State, to proceed by information rather than indictment, was required to obtain a transfer order, no such transfer order is required under section 39.-04(2)(e)4., Florida Statutes. State ex rel. Register v. Safer, 368 So.2d 620 (Fla. 1st DCA 1979).

Finally, appellant contends that the trial judge did not sentence him in accordance with the mandatory requirements of section 39.111, Florida Statutes. However, there is no certification from the clerk of the circuit court that the record on appeal contains all matters relating to the sentencing of the appellant and there is some indication that the record is incomplete. Therefore we cannot determine with certainty that the trial court did not comply with section 39.111(6)(d).

Appellant’s conviction is affirmed without prejudice to the appellant to challenge the legality of his sentence for non-compliance with section 39.111(6)(d), Florida Statutes, by motion in the trial court.

AFFIRMED.

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

      . § 812.13, Fla.Stat. (1979).

      . Johnson v. State, 314 So.2d 573 (Fla.1973); Ringel v. State, 352 So.2d 88 (Fla. 4th DCA 1977).

      . § 39.02(5)(a), Fla.Stat. (1979).

      . § 39.02(5)(b), Fla.Stat. (1979).

      . § 39.02(5)(c), Fla.Stat. (1979).

      . See Fla.R.Crim.P. 3.800(a) and 3.850.


text:
    Donald Paul HOWE, Appellant, v. STATE of Florida, Appellee.
    No. 80-166.
    District Court of Appeal of Florida, Fifth District.
    Jan. 7, 1981.
    James B. Gibson, Public Defender, and Christopher S. Quarles, Asst. Public Defender, Daytona Beach, for appellant.

      Jim Smith, Atty. Gen., Tallahassee, and Phillip D. Havens, Asst. Atty. Gen., Dayto-na Beach, for appellee.
   PER CURIAM.

This is a timely appeal of the judgment and sentence of the Circuit Court, St. Johns County, adjudicating appellant guilty of burglary and sentencing him to five years imprisonment.

The Public Defender has filed and An-ders motion and brief requesting leave to withdraw as counsel for appellant and representing to this court that no reversible error appears. On April 28,1980, this court gave appellant thirty (30) days within which to file a brief in his own behalf. No such brief has been filed.

A review of the transcript of the suppression hearing and trial reveal no error. The motion of the Public Defender to withdraw is hereby granted, and the adjudication of guilt is hereby

AFFIRMED.

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

      . Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967).


text:
    Bennett COOPER, Appellant, v. STATE of Florida, Appellee.
    No. 79-329.
    District Court of Appeal of Florida, Fifth District.
    Jan. 7, 1981.
    James B. Gibson, Public Defender, and Terrence M. White, Asst. Public Defender, Daytona Beach, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Phillip D. Havens, Asst. Atty. Gen., Dayto-na Beach, for appellee.
   PER CURIAM.

This is an appeal from an order of the Circuit Court for Orange County withholding adjudication of guilt and placing appellant on probation following a plea of nolo contendere to the charge of grand theft in the second degree of an automobile. Appellant’s court appointed counsel has filed an Anders motion and brief, requesting leave to withdraw as counsel for appellant and representing to this court that no reversible error appears. On April 23,1980, this court gave the appellant thirty (30) days within which to file a brief in his own behalf. No such brief has been filed. The court has reviewed the brief and the record herein and no reversible error appears. The motion of the appellant’s counsel to withdraw is hereby granted, and the judgment of the trial court is hereby

AFFIRMED.

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

      . Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967).