author: ORFINGER, Judge. SHARP, Judge,

text:
    Kenneth T. GLENN, Appellant, v. STATE of Florida, Appellee.
    No. 81-120.
    District Court of Appeal of Florida, Fifth District.
    April 7, 1982.
    James B. Gibson, Public Defender, and Thomas R. Mott, Asst. Public Defender, Daytona Beach, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Barbara Ann Butler, Asst. Atty. Gen., Day-tona Beach, for appellee.
   ORFINGER, Judge.

In this appeal from a judgment of conviction for one count of aggravated assault and two counts of armed robbery, appellant contends that because he was only seventeen years of age when these crimes were committed, the trial court could not impose adult sanctions without strictly complying with the procedures outlined in section 39.-111(6), Florida Statutes (1979). We affirm.

Appellant was sentenced to two thirty-year concurrent sentences of imprisonment for the armed robberies, and a consecutive five-year sentence for the aggravated assault. Jurisdiction was retained for the first one-third of the thirty-year sentence, pursuant to section 947.16(3), Florida Statutes (1979), and a written order was entered justifying this action. The trial court received and considered a pre-disposition report. It considered and rejected a request that appellant be sentenced as a youthful offender because of appellant’s prior record, but it did not enter a written order making the findings of fact required by section 39.111(6)(d) and (j).

There was no objection made below to the court’s imposing an adult penalty, nor to the absence of a written order; thus, this case falls squarely within the ambit of Rubasky v. State, 401 So.2d 894 (Fla. 5th DCA 1981) and Dunman v. State, 400 So.2d 838 (Fla. 5th DCA 1981).

In the record before us, the only objection made by appellant was to the retention of jurisdiction by the trial court. There was no assertion to the trial court that it had failed to consider the criteria of section 39.111(6)(c), nor was there any objection made to the absence of the written order required by section 39.111(6)(d), and these issues are raised for the first time on appeal. The error complained of is procedural, not fundamental. It does not affect the validity of the sentence, only the procedure required to be followed before imposing such sentence. Therefore, the failure to strictly comply with that statute must be first objected to at the trial level and cannot be raised for the first time on appeal. Rubasky, Dunman.

The only factors argued to the trial court prior to sentencing had to do with appellant’s request that the court sentence him as a youthful offender under section 958.05, Florida Statutes (1979), but it was apparently agreed by all parties that appellant’s prior commitments did not entitle him to mandatory classification as a youthful offender under section 958.04(2), although the trial court had discretion to classify him as such under section 958.04(3). Appellant urged the trial court to consider him for this treatment, but this request was rejected.

The judgments of conviction and the sentences are each, severally,

AFFIRMED.

DAUKSCH, C. J., concurs.

SHARP, J., dissents with opinion.

SHARP, Judge,

dissenting.

The court below sentenced a juvenile in tbe adult criminal system as an adult, rather than as a juvenile, without complying with the mandatory language of section 39.111(6), Florida Statutes. The majority holds this is a harmless kind of error that can be waived by the defendant’s failure to make a timely objection. I dissent in this case because section 39.111(6) explicitly requires a court to follow all of the procedure outlined in the statute before imposing an adult sentence on a juvenile.

Pursuant to the statute, the judge ordered and considered a predisposition report by the Department of Youth Services, and the child, his parent and attorney were allowed to speak about the court’s possible sentence prior to the court’s pronouncing sentence. They asked the court to sentence the defendant as a child or youthful offender. The court declined to do so, based on Glenn’s prior record and the recommendations of the Department of Youth Services. In discussing its decision, the court verbally touched on some, but not all, of the criteria set forth in section 39.-lll(6)(c), and it failed to make any written findings of fact as mandated by section 39.111(6)(d) and (j). The juvenile’s attorney did not make reference to section 39.-111 specifically, but he called to the court’s attention repeatedly his client’s age — seventeen. He also did not object to the absence of a written order at the sentencing hearing, but as a matter of practicality, this may be an unrealistic requirement since counsel at that stage does not know for sure what the written sentence may be, and a written order pursuant to section 39.111 may indeed be subsequently filed.

Section 39.111(6) is unusual in that the Legislature has stated with the most forceful kind of language its intent that the outlined procedure must be followed. Section (d) provides:

Any decision to impose adult sanctions shall be in writing, and it shall be in conformity with each of the above criteria. The court shall render a specific finding of fact and the reasons for the decision to impose adult sanctions. Such order shall be reviewable on appeal by the child pursuant to s. 39.14. (Emphasis supplied).

Section (j) adds for good measure:

It is the intent of the Legislature that the foregoing criteria and guidelines shall be deemed mandatory and that a determination of disposition pursuant to this subsection is subject to the right of the child to appellate review pursuant to s. 39.14. (Emphasis supplied).

Where this procedure has not been followed, the appellate courts have vacated the sentences and remanded the proceedings to the trial court for resentencing. Bunch v. State, 399 So.2d 471 (Fla. 2d DCA 1981); Murray v. State, 382 So.2d 765 (Fla. 2d DCA 1980); Proctor v. State, 373 So.2d 450 (Fla. 2d DCA 1979); Johnson v. State, 371 So.2d 556 (Fla. 2d DCA 1979). Even where no objection was made in the trial court, our sister court has held the sentences invalid for failure to comply with section 39.111. See G. D. W. v. State, 395 So.2d 638 (Fla. 2d DCA 1981); Eady v. State, 388 So.2d 9 (Fla. 2d DCA 1980).

In Rubasky, 401 So.2d 894 (Fla. 5th DCA 1981), we held the defendant could not argue for the first time on appeal non-compliance with section 39.111(6), where at sentencing the age of the defendant and possible sentencing as a child was not brought to the attention of the trial court. See also Dunman v. State, 400 So.2d 838 (Fla. 5th DCA 1981). In the instant case, these factors were argued prior to sentencing at the sentencing hearing and the trial court faithfully complied with some but not all of the steps outlined in section 39.111(6).

Even in Rubasky and Dunman we recognized the illegality of the sentences imposed because of failure to comply with section 39.111 by stating that the appellants were without prejudice to apply to the trial court for relief pursuant to Florida Rule of Criminal Procedure 3.850. This is consistent with our views in Pendarvis v. State, 400 So.2d 494 (Fla. 5th DCA 1981) where we said:

Ordinarily, the failure to comply with this section [39.111(6)] would cause us to reverse the sentence and remand the matter for resentencing. But here it is clear from the record the sentence was the result of a plea bargaining process agreed to by the parties and the judge and clearly not an otherwise illegal sentence. Of course, appellant did not object below.

Id. at 495.

In this case I think the appellant sufficiently raised his juvenile status at the sentencing hearing to preserve his objections for appeal, and accordingly I would reverse the sentence and remand the cause for re-sentencing pursuant to section 39.111. At the least, the refusal of this court to consider these points on appeal should be without prejudice to seek relief through a Rule 3.850 motion. Rubasky; Dunman.

      . The court’s written order, filed after imposing the sentence, said Glenn was “clearly a menace to society,” “dangerous,” and with a “propensity to violence.” It noted his felony convictions totaled seven; said it detected in Glenn “no remorse”; and declared it felt Glenn would continue his criminal pattern if allowed to do so.

      . This section applies whether the child is directly filed against by the State or is transferred from the juvenile to the adult court. See Goodson v. State, 403 So.2d 1337 (Fla.1981).

      . § 39.111(6)(a), Fla.Stat. (1979).

      . § 39.11 l(6)(b), Fla.Stat. (1979).

      .See § 958.04, Fla.Stat. (1979). The written order entered pursuant to section 947.16(3), Florida Statutes also failed to touch on all of the criteria set forth in section 39.111(6)(c), and it was obviously done after and not before any other “determination of disposition.”


source: Caselaw Access Project

author: ORFINGER, Judge. COWART, Judge,

license: Public Domain

text:
    PAINE, WEBBER, JACKSON & CURTIS, INCORPORATED, Petitioner, v. Louis LUCAS and Bonna Duncan, Respondents.
    No. 81-1073.
    District Court of Appeal of Florida, Fifth District.
    April 7, 1982.

      William D. Palmer of Carlton, Fields, Ward, Emmanuel, Smith & Cutler, P. A., Orlando, for petitioner.
    Douglas Bowdoin of van den Berg, Gay & Burke, P. A., Orlando, for respondents.
   ORFINGER, Judge.

Petitioner seeks a writ of certiorari to review a non-final order of the trial court denying petitioner’s motion to compel arbitration. For the reasons stated we deny the writ.

Respondents have two accounts with the petitioner brokerage firm; one is a Cash Fund Account; the other a Client Commodity Account. The Client Commodity Account agreement provides for arbitration of “any controversy arising out of or relating to my account, to transactions with you for me or to this agreement or the breach thereof....” Respondents sued the petitioner on facts arising exclusively from the opening and handling of the Cash Fund Account. Petitioner, citing the arbitration provision of the Client Commodity Account agreement, moved to compel arbitration. The trial court denied the motion, and petitioner seeks review by certiorari.

Addressing first the procedural aspect of this case, this court has previously held, at least inferentially, that a petition for common law certiorari is an appropriate method of review of an order denying a motion to compel arbitration. See R. W. Roberts Construction Co., Inc. v. Masters & Co., Inc., 403 So.2d 1114 (Fla. 5th DCA 1981). Each of the other district courts of appeal have done the same. In Vic Potamkin Chevrolet, Inc. v. Bloom, 386 So.2d 286 (Fla. 3d DCA 1980), the court held that where the right to arbitrate is not in dispute, permitting the parties to litigate the dispute in the courts instead of proceeding by arbitration as agreed would constitute a departure from the essential requirements of law. In Lapidus v. Arlen Beach Condominium Association, Inc., 394 So.2d 1102 (Fla. 3d DCA 1981), the same district court concluded that the denial of a right of arbitration, where it existed, could not be adequately remedied by appeal since the purpose of arbitration was to avoid litigation.

The avoidance of the expense and difficulty of an unnecessary court trial has been held to be an insufficient reason to justify the use of common law certiorari as a method of review of an otherwise non-ap-pealable, non-final order. Vanco Construction, Inc. v. Nucor Corporation, 378 So.2d 116 (Fla. 5th DCA 1980). But, this general principle presupposes the existence of otherwise proper litigation. If the purpose of arbitration is to avoid litigation, permitting the parties to litigate at all where there is a right to arbitration completely frustrates that right. Lapidus. Where the right to arbitration exists, compelling a party whose application has been denied to wait until a final judgment is entered so that he can appeal the order denying arbitration, may be a remedy in name, but it is not an adequate remedy in fact. Thus, we agree with the other district courts that an order denying the right to arbitration where such right exists is a departure from the essential requirements of law which cannot be adequately remedied by appeal. Certiorari is thus the appropriate remedy to review such order.

The contracts in question are clearly subject to the interpretation that the arbitration clause relied on by petitioner applies only to the Client Commodity Account and not to the Cash Fund Account, so no right of arbitration exists here. Although the trial court did not state the reasons for denial of the motion, its order can be sustained if it is correct for any reason. Zinger v. Gattis, 382 So.2d 379 (Fla. 5th DCA 1980).

Concluding that the order in question did not depart from the essential requirements of law, the petition for certiorari is denied.

Writ DENIED.

COBB, J., concurs.

COWART, J., concurs specially with opinion.

COWART, Judge,

concurring specially:

I concur in result only because I do not believe certiorari is an appropriate remedy to review a non-final, non-appealable order denying a motion to compel arbitration.

The common law writ of certiorari is an extraordinary remedy and should not be granted unless the order on review (1) resulted from the trial court exceeding its jurisdiction or (2) was a departure from the essential requirements of law, that is, that such order was not entered consistent with procedural due process and the order permits or causes irreparable injury. See generally W. Haddad, The Common Law Writ of Certiorari in Florida, 49 U.Fla.L.Rev. 207, 220 (1977).

One purpose of an arbitration agreement is to avoid the disadvantages of litigation and it can be logically argued that once arbitration is erroneously denied and litigation is allowed, the bargained for right of arbitration is effectively frustrated. However, the fact that petitioner may have to pursue this case to its conclusion to remedy the non-final order is not an adequate ground for issuance of certiorari.

As a general rule the burden, vexation, or hazard of defending litigation does not furnish a basis for certiorari intervention by the appellate courts. Such burdens are “one of the hazards of living and doing business under a system of free enterprise in which one who conceives himself to be injured is privileged to seek redress in a court of law.”
Gadsden County Times, Inc. v. Horne, 382 So.2d 347, 348 (Fla. 1st DCA 1980).

Accordingly, it is generally held that the avoidance of expense and difficulty of an unnecessary court trial is not sufficient reason to justify the use of certiorari where no provision is made for an interlocutory appeal. Further, another purpose of an arbitration agreement is to have the dispute between the parties settled by a forum other than the court system and this purpose can be finally effectuated by a reversal of any erroneous trial court order denying arbitration upon appeal from a final judgment. Accordingly, for this latter purpose an appeal from final judgment provides an adequate remedy.

Notwithstanding the questionable legal basis for doing so, every district court of appeal has reviewed, by certiorari, the correctness of trial court orders granting or denying motions to compel arbitration. However, only two cases even superficially considered the appropriateness of the remedy. In Vic Potamkin Chevrolet, Inc. v. Bloom, 386 So.2d 286 (Fla. 3d DCA 1980), it was summarily stated that where the right to arbitration was not disputed, to not require arbitration was a departure from the essential requirements of law. In Lapidus v. Arlen Beach Condominium Association, Inc., 394 So.2d 1102 (Fla. 3d DCA 1981), the strong public policy favoring arbitration was noted and it was stated that the erroneous denial of the right to arbitration would not be adequately remedied by appeal. In the other cases, the appellate court merely went directly to a consideration of whether or not the trial court was correct or not as a matter of law in the entry of his order granting or denying the motion to compel arbitration. The fallacy of certiora-ri review in this instance is additionally illustrated in the remedy sought. The petitioner does not merely want this court to quash the order denying arbitration; petitioner really wants this court to direct the trial court to enter an order compelling arbitration. Properly speaking, in review by certiorari, an appellate court can only quash a highly improper order, but has no authority to remand with directions to enter a proper order.

Essentially petitioner’s argument is that Florida Rule of Appellate Procedure 9.130(a)(3) should contain a subsection providing review of non-final orders of lower tribunals which deny arbitration. This may be a good argument based on sound reasoning. However, this court does not have the constitutional power to make or amend the rule to authorize such an appeal and we should be constrained by lawful limitations on our appellate jurisdiction not to abuse authority and torture and twist the tools we are given to force them to perform functions for which they were not intended. The Supreme Court of Florida should consider amending Florida Rule of Appellate Procedure 9.130(a)(3) to provide for review of non-final orders which deny interlocutory remedies such as the appointment of receiver and the compelling of arbitration. But in the absence of such an amendment, this court should not circumvent the appellate rules by construing certiorari review to apply to orders that do not fall within the traditional framework of that extraordinary remedy.

      . See also: Balboa Insurance Company v. W. G. Mills, Inc., 403 So.2d 1149 (Fla. 2d DCA 1981); Marthame Sanders & Company v. 400 West Madison Corporation, 401 So.2d 1145 (Fla. 4th DCA 1981); Miller Construction Company, Inc. v. The First Baptist Church of Live Oak, Inc., 396 So.2d 281 (Fla. 1st DCA 1981).

      . Fla.R.App.P. 9.130; see, e.g., Hawaiian Inn of Daytona Beach, Inc. v. Snead Construction Corp., 393 So.2d 1201 (Fla. 5th DCA 1981) (order denying motion for leave to file second amended complaint); Bowl America Florida, Inc. v. Schmidt, 386 So.2d 1203 (Fla. 5th DCA 1980) (order denying the defendant’s motion to dismiss for failure to prosecute); Professional Medical Specialties, Inc. v. Renfroe, 362 So.2d 397 (Fla. 4th DCA 1978) (order denying motions to compel answers in a discovery deposition); Ford Motor Company v. Nelson, 355 So.2d 158 (Fla. 4th DCA 1978) (order striking affirmative defense); Whiteside v. Johnson, 351 So.2d 759 (Fla. 2d DCA 1977) (order denying motion to dismiss).

      . See, e.g., Balboa Insurance Co. v. W. G. Mills, Inc., 403 So.2d 1149 (Fla. 2d DCA 1981); R. W.

        Roberts Constr. Co., Inc. v. Master and Co., Inc., 403 So.2d 1114 (Fla. 5th DCA 1981); Marthame Sanders and Co. v. 400 West Madison Corp., 401 So.2d 1145 (Fla. 4th DCA 1981); McAllister v. Girous, 401 So.2d 908 (Fla. 2d DCA 1981); Miller Constr. Co., Inc. v. First Baptist Church of Live Oak, Inc., 396 So.2d 281 (Fla. 1st DCA 1981); Lapidus v. Arlen Beach Condominium Assoc., Inc., 394 So.2d 1102 (Fla. 3d DCA 1981); Terry Ford Co. v. Klinger, 392 So.2d 1033 (Fla. 4th DCA 1981); Raymond, James and Assocs., Inc. v. Maves, 384 So.2d 716 (Fla. 2d DCA 1980); King v. Thompson and McKinnon, Auchincloss, Kohlmeyer, Inc., 352 So.2d 1235 (Fla. 4th DCA 1977).

      . See Lee v. Lee, 407 So.2d 366 (Fla. 5th DCA 1981).


author: DAUKSCH, Chief Judge. COWART, Judge,

text:
    Richard McMILLIAN, Appellant, v. STATE of Florida, Appellee.
    No. 82-87.
    District Court of Appeal of Florida, Fifth District.
    April 7, 1982.

      Richard McMillian, pro se.
    Jim Smith, Atty. Gen., Tallahassee, and Richard B. Martell, Asst. Atty. Gen., Dayto-na Beach, for appellee.
   DAUKSCH, Chief Judge.

In this appeal from a denial of a motion for post conviction relief filed under Florida Rule of Criminal Procedure 3.850, the appellant alleges he was denied effective assistance of counsel at trial. It is alleged he was in prison during his pre-trial period and was brought to the county jail only 16!/> hours before his trial. He says he never met with his court-appointed attorney before the time of trial and thus was denied due process of law because his counsel could not have been effective in his representation of him. Whether or not counsel was effective is the question. Failing to talk to or prepare the case for a client does not constitute ineffectiveness, per se. But it requires a hearing to determine whether appellant in fact received effective assistance of counsel, and the trial court should not have summarily denied the petition “because the matters alleged were all within the subject matter of the direct appeal.”

The state says the appellant should be denied relief summarily because he raised the issue on appeal and lost. The precise issue raised in his plenary appeal was “The Court erred as a matter of law in denying Defendant’s Motion for Continuance.” The entire argument on this issue in appellant’s brief, which was prepared by his trial counsel who is alleged to have been incompetent, is: “The Appellant was incarcerated at a distance of more than 100 miles from Orlando prior to the trial and was returned to Orlando only 16Í/2 hours before the trial, and thereby his attorney was unable to properly prepare the defense. Under the case of Christie v. State, [94 Fla. 644] 114 So. 45 (Fla.Sup.Ct.1927), appellant should have been granted a continuance.” Why the appellate court did not grant relief under this point on appeal is of course unknown to us but it might have been because the record did not support the point on appeal, or it might even have been because counsel failed to present the point adequately enough for the judges to understand the point. In any event it cannot be said conclusively that the issue of the competence of counsel was raised and decided by the court in that appeal. Also, the issue of competency of counsel is usually raised by collateral attack rather than direct review from the conviction.

The appellant has raised an issue to be considered under Florida Rule of Criminal Procedure 3.850. It has not been shown that issue has been considered and decided before and no record before us refutes the allegation of ineffective assistance of counsel. Therefore the trial court must hold a hearing to take evidence and decide the issue. Meeks v. State, 382 So.2d 673 (Fla.1980); Brown v. State, 409 So.2d 129 (Fla. 5th DCA Jan. 27, 1982); Van Bever v. State, 405 So.2d 474 (Fla. 5th DCA 1981); Wade v. State, 402 So.2d 534 (Fla. 5th DCA 1981); Benton v. State, 401 So.2d 1114 (Fla. 5th DCA 1981); Stephens v. State, 399 So.2d 1106 (Fla. 5th DCA 1981); Gunn v. State, 378 So.2d 105 (Fla. 5th DCA 1980); Payne v. State, 362 So.2d 688 (Fla. 2d DCA 1978).

REVERSED AND REMANDED.

FRANK D. UPCHURCH, Jr., J., concurs.

COWART, J., dissents with opinion.

COWART, Judge,

dissenting:

Appellant claims he was denied effective assistance of counsel by counsel’s failure to have appellant returned from prison in time to prepare for trial. There is only the implication that trial counsel could not have been effective at trial because of the short time between appellant’s return and the actual trial and no particulars are alleged as to the general claim that counsel was ineffective. Defense counsel does not control, and is not responsible for, the time when his client is moved from prison to the place of trial nor for the time set for trial. Here appellant’s trial counsel did the one thing counsel should do when faced with this situation and that is to move for a continuance of the trial on the ground of the need for a more adequate time and opportunity for counsel to consult with his client and to prepare for trial. Counsel’s pre-trial motion for a continuance was made and denied and the trial court’s denial was reviewed on appeal and affirmed. Appellant’s complaint in this 3.850 motion, filed 10 years after his conviction, is still that the trial court erred in denying the motion for continuance made for the purpose of gaining more time to prepare for trial. There is no difference in substance and in law between appellant’s pre-trial claim that he was entitled to a continuance because it was necessary for his trial counsel to have more time to prepare in order to be effective at trial (which was the basis for the motion for continuance and 'the subject of the argument on the direct appeal from its denial) and appellant’s present claim on this 3.850 motion that his trial counsel must have been ineffective because the motion for continuance was denied, causing his trial counsel to have inadequate time to prepare for trial. Thus, the substance of the matter here was presented on the prior direct appeal and is not a proper subject of appellant’s 3.850 motion, the summary denial of which should be affirmed.

Even if appellant’s motion is read to allege ineffective assistance of counsel in that his counsel did not confer with him until shortly before trial, the motion should still be denied, as a matter of law, because it does not allege a prima facie case of ineffectiveness. Appellant does not allege what facts or theories of defense he would have told defense counsel that defense counsel did not already know. Consequently, appellant has not alleged how, if at all, this supposed lack of knowledge prejudiced his case. When a prisoner asserts, via a 3.850 motion, that his trial counsel was ineffective because counsel did not interview or call a certain witness for the defense, the prisoner is required to proffer what testimony that witness would have given, that it would have been admissible and that he was prejudiced by such failure on trial counsel’s part. A motion which fails to do so is fatally deficient and should be summarily denied without the necessity of an eviden-tiary hearing. See, e.g., Ables v. State, 404 So.2d 137 (Fla. 5th DCA 1981); Clements v. State, 340 So.2d 1182 (Fla. 4th DCA 1976). Such a requirement should equally apply to an allegation that trial counsel did not interview the prisoner, since the prisoner must necessarily now know the facts, if any, that he is claiming counsel failed to discover and present at trial. Accordingly, I would affirm the summary denial of appellant’s 3.850 motion.

      . The citation is incorrect. Appearing at 114 So. 45 is an Alabama case involving principal and agent law as regards a promissory note. The Christie case appears at page 450 of that same volume 114 So.

      . “The specific omission or overt act upon which the claim of ineffective assistance of counsel is based must be detailed in the appropriate pleading.” Knight v. State, 394 So.2d 997 (Fla. 1981).


author: BERANEK, Judge.

text:
    PALM BEACH COUNTY CLASSROOM TEACHER’S ASSOCIATION and Warren G. Cutts, Appellants, v. The SCHOOL BOARD OF PALM BEACH COUNTY, Ann Doyle, and Palm Beach Newspapers, Inc., Appellees.
    No. 81-1629.
    District Court of Appeal of Florida, Fourth District.
    April 7, 1982.
    Mark F. Kelly and Robert F. McKee of Law Offices of Frank & Kelly, P.A., Tampa, for appellants.
    W. Peter Burns of Steel, Hector, Davis, Burns & Middleton, Palm Beach, and Florence Beth Snyder, West Palm Beach, for appellees, Ann Doyle and Palm Beach Newspapers, Inc.
    Richard L. Oftedal, West Palm Beach, for appellee, School Bd. of Palm Beach County.
   BERANEK, Judge.

Plaintiffs/appellants, Palm Beach County Classroom Teachers’ Association (CTA) and Warren G. Cutts, appeal the denial of in-junctive relief against defendants/appel-lees, the School Board of Palm Beach County, Ann Doyle and Palm Beach Newspapers, Inc. A dispute arose between the appellants and the School Board regarding the interpretation and application of the collective bargaining agreement between CTA and the School Board. This agreement encompasses the terms and conditions of employment for all teachers employed by the School Board. Pursuant to the agreement, Cutts filed a formal written grievance, and after exhausting steps one and two of the grievance procedure, he sought to have the dispute submitted to arbitration. The agreement provided that the decision of the arbitrator would be final and binding on all parties. On or about January 20, 1981, Cutts and representatives of the CTA appeared before an arbitrator at the offices of the School Board to participate in an arbitration hearing regarding the grievance. Some time prior to the commencement of the hearing, Doyle, a newspaper reporter, entered the hearing room and sat down. Appellants requested that Doyle leave, but she refused. The arbitration hearing was recessed and has not yet taken place.

On June 15, 1981, the CTA and Cutts filed a complaint in the lower court seeking a judicial declaration that the Government in the Sunshine Act, Section 286.011, Florida Statutes (1979), did not apply to grievance arbitration hearings conducted pursuant to the agreement between CTA and the School Board, and also seeking to enjoin Palm Beach Newspapers, its officers, agents, and employees, as well as Doyle, from attending any arbitration involving the CTA and the School Board. Later, the appellants served upon the appellees a motion for preliminary injunctive relief. The trial court denied their request for a preliminary injunction and this interlocutory appeal followed. The main action seeking a declaration of the non-application of the open meeting requirements of Section 286.-011 is still pending and has not yet been tried or determined.

We conclude the trial court did not err in denying the injunction. We reach this conclusion initially on the narrow ground that the granting of a preliminary injunction is within the trial court’s broad discretion and its determination will not be overruled absent an abuse of discretion. There has been no such demonstration here. Contemporary Interiors v. Four Marks, Inc., 384 So.2d 734 (Fla. 4th DCA 1980). Further, this court recently issued an opinion in the case of Mills v. Doyle, 407 So.2d 348 (Fla. 4th DCA 1981), which involved essentially the same parties. In that case, Doyle had orally requested permission to inspect any grievance filed by Cutts against the School Board. When access was refused, Doyle made written demand upon the School Board to allow access to any written grievance filed by Cutts for the year 1980, and to any material contained in the file relating to such grievance or grievances. The School Board refused and Doyle filed a petition for writ of mandamus in the circuit court to require the Board to comply with the mandate of Chapter 119, Florida Statutes (1979). That chapter provides for the personal inspection by any person of all state, county, and municipal records. The trial court in that case entered a writ of mandamus commanding the appellants to open their records for inspection in accordance with Chapter 119, Florida Statutes (1979). On appeal we held that the grievance records of the teachers employed by the Palm Beach County School Board were public records within the purview of the Public Records Act. Furthermore, we stated:

[T]he trial court was correct in shunting aside the argument that the collective bargaining contract between the CTA and the School Board established the confidentiality of the subject records, for to allow the elimination of public records from the mandate of Chapter 119 by private contract w.ould sound the death knell of the Act.

In a similar vein, we believe that the provisions of a private agreement entered into by public bodies cannot be used to circumvent the requirements of public meetings in Section 286.011, Florida Statutes (1979). To rule otherwise and hold that an arbitration hearing may be closed to the public even though the grievance and other documentation on which it is based is a public document makes little sense to us. However, since the trial court has not yet expressly ruled on the application of Section 286.011, we also decline to do so and simply affirm on the narrow ground that the preliminary injunction was not improperly denied. A demonstration of irreparable injury has long been held necessary to entitle one to an injunction. Since Doyle already possesses the grievance file, we fail to see any irreparable injury in her attending a hearing at which oral testimony will be given as to the facts already stated in the grievance. Our conclusion is also influenced by the binding nature of the arbitration. The School Board has agreed to be bound by whatever finding the arbitrator reaches. Clearly the public has an interest in the basis for a decision which may affect education, the expenditure of taxes and the school children of this county. There has been no demonstration of a compelling need for secrecy.

AFFIRMED.

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


author: GLICKSTEIN, Judge. HURLEY, Judge,

text:
    Robert Lee BAILEY, Appellant/Cross-Appellee, v. STATE of Florida, Appellee/Cross-Appellant.
    No. 80-1402.
    District Court of Appeal of Florida, Fourth District.
    April 7, 1982.
    Rehearing Denied April 21, 1982.
    Richard L. Jorandby, Public Defender, and Jon May, Asst. Public Defender, West Palm Beach, for appellant/cross-appellee.
    Jim Smith, Atty. Gen., Tallahassee, and Robert L. Bogen and Trela J. White, Asst. Attys. Gen., West Palm Beach, for appel-lee/cross-appellant.
   GLICKSTEIN, Judge.

Appellant seeks reversal of his conviction and sentence for manslaughter, basing error upon the trial court’s refusal to allow impeachment of a state witness. Finding the trial judge did not abuse his discretion by limiting the scope of cross-examination, we affirm the lower court’s decision.

Appellant shot and killed his six-year-old daughter Pamela. The question presented at trial was whether he accidentally shot her or whether he intended to kill his wife but shot his daughter inadvertently.

Three eyewitnesses to the crime, among others, testified on behalf of the state. The first was appellant’s thirteen-year-old daughter, the second was his wife, and the third was their older son. All three testified that on the night of the fatal shooting appellant threatened to kill his wife. Testimony was also given that appellant held the gun with both hands before the shot was fired.

At trial counsel attempted to set up the defense that appellant’s wife was testifying falsely because she was having an affair with another man and wanted her husband out of the way. Outside the jury’s presence, the court prohibited defense counsel from attempting to discredit the wife, ruling that her alleged extramarital relationship was irrelevant. Subsequent to this proffer, Elizabeth Stewart, appellant’s sister, testified that after the shooting another man moved in with appellant’s wife. Upon motion by the state, the court ordered this testimony stricken from the record. Appellant was found guilty of manslaughter and' sentenced to nine years in prison.

Appellant argues the trial court’s refusal to allow cross-examination of his wife concerning her infidelity violated his sixth amendment right to confront his accusers. We agree the exposure of a witness’s motivation in testifying is a constitutionally protected right. Davis v. Alaska, 415 U.S. 308, 94 S.Ct. 1105, 39 L.Ed.2d 347 (1974). But that right has always been subject to a trial court’s discretion in limiting and controlling cross-examination. Demps v. State, 395 So.2d 501 (Fla.1981). Based upon our examination of the record, we conclude no abuse of discretion occurred.

Appellant testified in his own defense that on January 4,1980, he and his wife had been drinking at Jack’s Place in Belle Glade. He left there to go to the Blue Bell, another drinking spot, and his wife walked home. He then explained:

I was walking down the street, so I had seen her, she wasn’t even much home, I had seen her, I was looking right at her. She was walking, there was a guy walking with her. He was a little taller than me.
So I caught her with — after she left the house where I live at, we walked to the yard together. That is when I started asking, I said “Ann, who that guy walking with you?” She said “Nobody.”
So we get up on the porch, I was opening the door, I said “All right, now,” like that there. So I opened the door and she said something, I probably sweared at her, or something. I probably did.
Ann went on in the house, she was bending down taking — I don’t know, she was taking something out of the socks or putting something in it, I don’t know. She was fooling around with her socks down there. So I throwed the keys on the coffee table, I said “Let me take this gun out the car.” I took the gun out the car, locked the door, come back in. I was — there was a song I was humming. So after I had the gun, I started turning it like that. But the gun was already cocked, I didn’t even look at the gun or check it, or anything. I started playing with the gun. And all of the kids and all was in the room. And I walked up there, and in my dining room, that is where the girl’s bedroom was, I walked up in the door, I was still fooling around with the gun. And my son said “Daddy” — the one, Robert, he sat up and looked at me, he was smiling because he liked to see me do all kinds of stuff like that, you know. And the gun went off. He jumped up, he hollered “Daddy.”

The testimony of the wife and two of appellant’s other children painted an entirely different picture of the tragic shooting. The thirteen-year-old daughter testified that when her parents came home, her father told her mother he was going to shoot her brains out. After making this threat, appellant went to his bedroom, got his gun from the dresser, walked to the door of the other bedroom where the four children and their mother were gathered, held the gun with two hands and fired, striking the witness’s younger sister.

Appellant’s wife testified that after leaving Jack’s Place, the couple went to a restaurant where they separated because she had to work the next morning. She walked home and sat on the porch, eating the food she had bought. When appellant arrived, he accused her of lying by telling him she had walked home alone. He then threatened to blow her brains out. She went to the children’s bedroom to check on them and was hugging the youngest child on the bed when appellant appeared, holding a gun, and fired the fatal shot. Appellant’s son, then a fourth-grade student, corroborated the testimony his mother and sister had given.

Were that all of the record, we might be inclined to give more credence to appellant’s argument. After all, the shooting occurred in January and the trial in June, giving the alleged errant wife several months to weave a false story for herself and the children.

But the trial judge had other proof before him. One of the detectives investigating the incident testified, without objection, that two and one-half hours after the shooting appellant’s wife, distraught over the plight of her husband and the death of her child, had told him the following:

We left Jack’s Place, I told him I had to get up for work. When he got home, he rung the door bell. When my husband came to the porch, I was eating. My husband asked who that man was I was walking with. When I went to the bedroom, he got the gun and told me he was going to blow my brains out. I went to the other bedroom to check on the children. He came in where I was at and I was holding my baby where she was at, and I was hugging my baby from behind, and he fired. He took the baby from my bedroom to the kids’ bedroom, and I heard another shot. He told the kids T am sorry, I didn’t mean it.’ I took the gun from him and he left.

Perhaps even more telling was the detective’s description, also admitted without objection, of appellant’s children after the shooting:

Q Instead of describing it, tell the ladies and gentlemen of the jury what the children — did they in fact now actually show you physically how they saw their father holding the gun?
A They did, yes.
Q I would like you to stand up right there and tell these ladies and gentlemen and just show them what these children showed you.
A Basically this is a — if you get into it, this is a combat stance, something here, or bringing it down into here.
Now, the children, similar to this, when I asked them whether he was holding the weapon was like this, like this or in his hands, or how was it like this, they showed me something like this. To me it amazed me a little bit because it is something that you don’t — for children this age, they are not going to say he had it like this. This is the basic position you hold the weapon in a stance, and they said the arms were outstretched, pointing like this. They were very emphatic about it.

Based on this evidence, the trial judge did not abuse his discretion in refusing to permit the defense to obtain denials from the wife of any affair with another man and in later striking the testimony of appellant’s sister that the man had moved in with the wife after appellant was jailed. It was, therefore, reasonable for the trial judge to consider as too tenuous the notion that appellant’s wife within two and one-half hours after her youngest child was shot in her arms, concocted and so convincingly narrated such a twisted tale to the detective while at the same time or shortly thereafter mesmerizing her two children into corroborating the portrayal in order to get her husband out of the way. Accordingly, the judgment and sentence are affirmed.

AFFIRMED.

DELL, J., concurs.

HURLEY, J., concurs specially with opinion.

HURLEY, Judge,

concurring specially.

In my view, the trial court erred and abused its discretion by unduly restricting the cross-examination of Mrs. Bailey. Its ruling contravened the following bedrock principles set forth in Kufrin v. State, 378 So.2d 1341 (Fla.3d DCA 1980):

The exposure of a witness’ motivation in testifying is a proper function of the constitutionally protected right of cross examination. Bias or prejudice of a witness has an important bearing on his credibility and evidence tending to show such bias is relevant. Any evidence which tends to establish that a witness is appearing for the state for any reason other than merely to tell the truth should not be kept from the jury. Id. at 1342, (Citations omitted).

Nonetheless, due to the overwhelming cumulative proof of guilt, I am satisfied that the error was harmless beyond a reasonable doubt. See Chapman v. California, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967); Knight v. State, 394 So.2d 997 (Fla.1981). Consequently, I concur in the decision to affirm.

      . Appellant also argues the trial court erred in denying his requested jury instructions on excusable homicide and on the definition of a dangerous weapon. This point is totally without merit. The trial court followed the standard jury instructions in both instances and appellant’s suggested instructions added nothing to them.

      . The sixth amendment to the United States Constitution provides, in pertinent part: “In all criminal prosecutions, the accused shall enjoy the right ... to be confronted with the witnesses against him.”

      . The witness, although testifying as indicated, contradicted herself at trial by also saying the wife had been staying with the witness’s aunt since the shooting.


author: LETTS, Chief Judge.

text:
    In re the ADOPTION OF M. A. H., a minor child.

    No. 80-1159.
    District Court of Appeal of Florida, Fourth District.
    April 7, 1982.

      Sharyn D. Garfield of Law Office of Chesley V. Morton, Fort Lauderdale, for appellant.
    Charles R. Forman of Gill & Forman, Ocala, for appellee.

      . We have used only the child’s initials in the style of this case in accordance with Section 63.162(3), Florida Statutes (1979).

   LETTS, Chief Judge.

The paternal grandparents, age 52, here protest the denial of their petition to permanently adopt their 5 year old granddaughter. The natural fáther consented, but the natural mother, age 26, to whom the child was born out of wedlock, opposed the adoption although she herself had been found by the court ordered Health & Rehabilitative Service’s (HRS) investigation to be an unfit mother incapable of assuming responsibility for the child “at this time nor in the foreseeable future.” We reverse.

This is a tragic tale perhaps complicated by the fact that, because of the circumstances and through no fault of those instrumental to the outcome, four different judges and at least three counselors from HRS have handled bits and pieces of this situation.

In the beginning, when the child was but two years old, HRS placed her in its emergency shelter and shortly thereafter, in October of 1977, temporary custody of the child was, by court order, officially given to the paternal grandparents. With only a few interruptions, they have had physical, though not official, custody since the child was six months old. The mother has never protested this custody and does not do so now. It is only the adoption that is opposed.

As the natural mother’s counsel concedes in her brief, the mother has a long history of drug related emotional problems and since April of 1978 has never attempted to directly contact the child, or the child’s grandparents, up to and including the date of the hearing on the adoption in June of 1980, a period of over two years. The only attempts at contact were the sending of Christmas presents one Christmas in 1979, (which were never received) and several telephone calls or letters to HRS officials in which she expressed interest in the child and hopes for visitation. Moreover, at a November, 1977, hearing the judge ordered the mother to pay $7.00 a week towards the child’s support which she totally failed to do except for one lump sum payment of $48.50 made in 1978 to avoid being held in contempt. Her arrearages at the time of the adoption'hearing amounted to $7.00 a week for some 130 weeks, the last 116 weeks of which had produced no contribution whatever.

There is, however, conflict regarding her ability to make support payments. The mother has been unemployed, and has changed jobs and locations several times while battling her emotional, psychological and drug problems. Nonetheless, we have read every word of the record for ourselves and find, according to the mother’s own testimony for example, that for the entire year preceding the adoption hearing she worked steadily for one employer, earning up to $240 per week gross. At no time during that period did she send as much as one penny of the court ordered support.

We would comment that our litany of the natural mother’s shortcomings is not set forth to, make her look bad, for we recognize that she has endured and continues to endure severe problems. Rather we recount them because the legislature requires a showing of abandonment and our Supreme Court in Wiggins v. Roils, 100 So.2d 414 (Fla.1958), denied an adoption request because the following factors negated an abandonment by the non-consenting parent who: (1) consistently showed affection for the child, (2) furnished regular funds for support and maintenance, (3) maintained as close a contact with the child as circumstances could permit, (4) remembered her with gifts on holidays, birthdays and at Christmas time, (5) wrote regular letters, and (6) came from New York each summer during vacation to visit the child.

By contrast, the non-consenting parent here has done none of these things except for never received Christmas presents one Christmas and a few contacts with HRS. Moreover for the two years preceding the adoption hearing it was not New York that she failed to come to Broward County from for a visit, but rather Ocala, Florida.

Finally, to complete enough of a factual dissertation necessary to support our conclusion, the HRS evaluation furnished for the adoption hearing, said of the grandparents:

It is clear that the petitioners enjoy a warm, loving relationship with their granddaughter and have provided her with good care in pleasant surroundings. They have adequate income and resources to provide for her needs.

Concluding that same evaluation however, the HRS report gave two reasons for opposing the adoption:

In the opinion of the undersigned counselor, the best interests of [the child] would not be served by granting this petition, for the following reasons:
1. Through adoption . . . the child would lose forever her maternal heritage, her right to visit and know and love and be loved by her natural mother. This is not the case with her natural father, who, although he has given his consent to the adoption, will still have access to the child.
2. Adoption by the petitioners will result in no additional benefits to [the child]. Her living situation will remain as it has been for the last 32 months. Her paternal grandparents will continue to provide for her physical, emotional and spiritual needs.

Both from an examination of the applicable statute and this court’s decisions in The Matter of the Adoption of Serpe, 395 So.2d 1240 (Fla. 4th DCA 1981) and in The Matter of Adoption of Noble, 349 So.2d 1215 (Fla. 4th DCA 1977) it would appear (as this trial judge expressed it at the adoption hearing) that the sole question absent consent is:

Did the mother abandon the child?

We agree, but it was not always thus and in the end this is not the basis on which this judge made his decision. Prior to 1973, the Florida Statute did not require the parent to have “abandoned” the offspring and indeed it spoke to “the best interests of the child.” Section 72.20, Florida Statutes (1955). However, our no doubt well intentioned legislature has orchestrated the new statute to specifically negate the child’s best interests and make the adoption, without consent, subject only to abandonment. Thus the comforting words of Wiggins v. Rolls, supra, “that the courts will always consider first and primarily the welfare of the minor,” have been superceded. Id. 100 So.2d at 416. This is hard to accept. In matters relating to children it appears that the best interests of a child are always at least considered in all facets of the law. Yet in that most sensitive of areas, adoption of minor children, the legislature has seen fit to jerk the rug out from under us. (See Nelson v. Herndon, 371 So.2d 140, 141 (Fla. 1st DCA 1979) and Solomon v. McLucas, 382 So.2d 339 (Fla. 2d DCA 1980), cert. den. 389 So.2d 1112 (Fla.1980). We are thus required, on a case by case basis, to decide what constitutes abandonment.

Significantly, the confidential report and testimony by HRS concludes that the mother has not abandoned the child for two reasons.

1. The undersigned counselor has had several phone calls from [the mother] at various times over the past year in which she expressed a desire to visit M. A. H. Although to the counselor’s knowledge she never followed through with her plans.
2. An ongoing theme of ill will between the [grandparents] and the [mother] and [resulting] difficulties in effecting visitation.

Frankly, we are of the opinion that a mother should not be able to escape a finding of abandonment under the facts of this case. No claim was made in the record that the absence of attention was attributable to illness or emotional problems, other than the recitation that she suffered from them. For all practical purposes, the mother has abandoned this child. Intermittent contacts with HRS, of which the child is not even aware, cannot and did not furnish one iota of benefit physically, spiritually, economically or emotionally. Nonetheless our role on the appellate level must be to reverse only when there is no competent substantial evidence to support a finding of no abandonment and we are required to refrain from doing so merely because we disagree. However, the finding here was only that of HRS and we are firmly of the opinion that the trial judge’s final order was not based on a finding of no abandonment. The actual written order gives no reason for the denial of the petition but the last words spoken by the judge were:

I want the parties to know that it is going to be very difficult for me all the way around, but then, that’s my job. I have to do what I think is in the best welfare of the child. That’s the way the Courts have ruled, and you all sure got tangled up. Anyway, I will try to give this as prompt a decision as I can. (emphasis supplied).

We sympathize and agree with his thought process but it is apparently not the law and he was demonstrably influenced by the HRS report (which said the adoption would not be in the child’s best interests) by announcing from the bench that those best interests would form the basis for his decision.

As we have said, the legislature has apparently precluded the courts from considering the best interests of the child in so far as a non-consenting natural parent is concerned. Obviously, when it comes to actual adoption, as distinct from custody, the HRS must operate under the same statutory limitation and consider the best interests of the child only in so far as the adoptive home is concerned. The suitability of the adoptive parents was considered here and they were found to have provided “a warm, loving relationship . . . with good care in pleasant surroundings.” However, HRS also considered the best interests of the child in the light of her relationship with her non-consenting mother, and it was this latter consideration which was improper under the statute.

Thus, while we repeat our dissatisfaction with the legislature’s action, we have no doubt that the thrust of the HRS report and the attendant testimony is based on an impermissible premise which requires us to reverse this case and remand it for a new evaluation and a further hearing. Who knows what intervening factors may affect a fresh consideration of this matter? In any event, though we deplore it, the best interests of the child is not one of them when the natural parent will not consent.

One final comment on the HRS report: stability and permanency in love, affection and responsible care, must constitute the gravamen for the emotional security necessary to ensure the successful upbringing of any child. In this case, in no small measure because of the HRS finding that the mother will not be capable of assuming responsibility for the child in the forseeable future, the love, affection and responsible care has come, and for the balance of childhood, will come, from the grandparents not the parents. HRS concludes that the grandparents already have custody and that adoption will provide no additional benefits. We must respectfully disagree. The present legally granted custody is only temporary and thus ever vulnerable to change. At some point in time, custodial parents must earn the right to claim a child permanently, lest they discharge their duty with something less than completeness or worse yet, throw up their hands and abandon their efforts for the sake of their own emotional well-being.

REMANDED FOR FURTHER PROCEEDINGS NOT INCONSISTENT HEREWITH.

BERANEK and DELL, JJ., concur.

      . The mother testified at first that her mother took the presents and that they were returned. However, she later changed her story to reflect she actually sent them by bus and doesn’t know whether they were delivered or not.

      . She actually had received from the court liberal visitation rights which she never sought to exercise after moving to Ocala in April of 1978.

      . So far as we can see from the record the father has been every bit as sorry a parent, a fact which he candidly conceded at the adoption hearing.

      . Section 63.072(1), Florida Statutes (1979).

      . The preamble to the new statute entitled “Legislative Intent” does address the “well being of the person being adopted” but this general language in Section 63.022(1) is obviously overwhelmed by the choice of words in Section 63.072(1).

      . It is we hope obvious that the legislature has not excluded the best interests of the child in so far as the required study of potential adopting parents to “inquire into the suitability of the intended adoptive home” Section 63.092(2) is concerned. This opinion addresses itself only to the removal of any consideration of best interests in the situation where one or both of the natural parents will not consent.


author: THOMPSON, Judge.

text:
    Charles F. BEECH, Appellant, v. STATE of Florida, Appellee. Fred PENDLEY, Appellant, v. STATE of Florida, Appellee.
    Nos. AE-337, AE-338.
    District Court of Appeal of Florida, First District.
    April 7, 1982.
    Michael Allen, Public Defender, and Steven L. Bolotin, Asst. Public Defender, Tallahassee, for appellants.
    Jim Smith, Atty. Gen., Tallahassee, and Barbara Ann Butler, Asst. Atty. Gen., Jacksonville, for appellee.
   THOMPSON, Judge.

This is a consolidated appeal from sentences corrected pursuant to Villery v. Florida Parole and Probation Commission, 396 So.2d 1107 (Fla.1981). The appellants Beech and Pendley contend that the trial court erred in resentencing them to increased terms of imprisonment which did not exceed the total term of imprisonment and probation to which they were originally sentenced. We affirm.

Appellant Pendley was convicted of the sale and delivery of cocaine and given a true split sentence of 15 years with 10 years imprisonment to be followed by five years on probation. After Villery, Pendley filed a motion for correction of sentence and he was resentenced to 12 years in prison less credit for time served.

Appellant Beech pled nolo contendere to a charge of lewd and lascivious assault on an 11-year-old child. Sentencing was deferred, Beech was declared to be a mentally disordered sex offender, and was committed to the Department of Health and Rehabilitative Services (HRS) for evaluation and treatment. After Beech was discharged from the custody of HRS, the court sentenced him to six years imprisonment to be followed by six years probation or a total of 12 years. On his motion to correct the judgment and sentence pursuant to Villery, the court sentenced Beech to serve 12 years in prison with credit for time served.

Both appellants contend that they received a more severe sentence when their original sentence was corrected and that under North Carolina v. Pearce, 395 U.S. 711, 89 S.Ct. 2072, 23 L.Ed.2d 656 (1969), a more severe sentence cannot be imposed on resentencing unless there was misconduct on the part of the appellants occurring after the original sentence which would justify increasing their penalties. There is no evidence in the record of such misconduct by either appellant.

We have no hesitation in the case of appellant Pendley. Although his term of imprisonment was increased from 10 to 12 years less credit for time served, his five-year term of probation was vacated. We cannot say as a matter of law that such a sentence is more severe than the original sentence. Therefore, Pearce is not applicable.

The case of appellant Beech presents a far more difficult question. His original term of six years imprisonment followed by six years probation was replaced with a 12-year term of imprisonment. It is difficult to comprehend how a sentence which replaces the total term of incarceration and probation with an equal term of imprisonment is not a more severe sentence subject to Pearce limitations. However, in Villery our supreme court authorized the trial court upon resentencing to impose any sentence of imprisonment that did not exceed the total period of incarceration and probation originally given. Gomez v. State, 409 So.2d 1096 (Fla. 3d DCA 1982) [1982 FLW 314]; Williams v. State, 405 So.2d 436 (Fla. 1st DCA 1981); and Lewis v. State, 402 So.2d 482 (Fla. 2d DCA 1981). Neither of the sentences of the appellants in this case exceed the total term of incarceration and probation originally imposed. In view of the fact that Pearce was decided prior to our supreme court’s decision in Villery, we can only assume that it took the limitations set forth in Pearce into consideration in reaching its decision as to the total term that could be imposed by the court on re-sentencing, and that it determined that any sentence for a period of time not exceeding the total of the period of incarceration and probation originally imposed meets both state and federal constitutional requirements. We therefore affirm the sentence of the appellant Beech.

Because of the conflicts and obvious doubt statewide at both the trial and appellate level as to correct limitations and principles to be applied when correcting a voidable sentence prohibited by Villery, and because of the importance of uniform and correct resentencing, we certify as questions of great public importance the following:

1. In correcting a voidable sentence, is the maximum sentence that can be imposed imprisonment for a period of time not exceeding the total of the imprisonment and probation originally imposed? If not, what is the maximum sentence?

2. If the sentence imposed is imprisonment for a period of time not exceeding the total time of the imprisonment and probation originally imposed, can such sentence violate the prohibitions of Pearce ?

3. If compliance with Pearce is required under the circumstances set forth in 2. above, at what point does a sentence of imprisonment that replaces a sentence of a combination of imprisonment and probation become a more severe sentence subject to the limitations of Pearce ?

JOANOS and WIGGINTON, JJ., concur.


author: PER CURIAM. SHIVERS, Judge,

text:
    Carlton W. GERLOCK, Petitioner, v. FLORIDA PAROLE AND PROBATION COMMISSION, Respondent.
    No. AI-436.
    District Court of Appeal of Florida, First District.
    April 7, 1982.
    Carlton W. Gerlock, pro se.
    Catherine L. Dickson, Tallahassee, Asst. Gen. Counsel for Florida Parole and Probation Commission, for respondent.
   PER CURIAM.

We find, on consideration of petition for writ of mandamus and response thereto, that petitioner’s claims are devoid of merit. Accordingly, order to show cause is discharged and the writ denied.

BOOTH and JOANOS, JJ., concur.

SHIVERS, J., dissents with written opinion.

SHIVERS, Judge,

dissenting.

I respectfully dissent.

This petition for writ of mandamus asks us to order the Florida Parole and Probation Commission (Commission) to: (1) comply with § 947.173(2), Fla.Stat. (1981), by examining petitioner’s request for review and by notifying him of the decision; and, (2) reinstate the presumptive parole release date (PPRD) given him in 1979. The first claim is moot since petitioner received his Commission review prior to filing in this Court, although he had not yet received notice from the Commission. I would treat the second claim of the petition as a notice of appeal and appellant’s brief and grant the relief requested.

Petitioner was first interviewed for parole on June 14, 1979. He was given a PPRD of February 2, 1988. Pursuant to petitioner’s review request for correction because of error in computing his PPRD, the petitioner’s PPRD was corrected by the Commission on September 4, 1979, and established as September 2, 1984.

Section 947.172(3), Fla.Stat. (1978), in effect at the time of petitioner’s first interview and at all times thereafter provides:

(3) A presumptive parole release date shall become binding on the commission when agreement on a presumptive parole release date is reached....

On September 7, 1979, after the corrected PPRD was established, the Commission advised the petitioner that because he failed to comply with § 944.485, Fla.Stat. (Supp. 1978), and disclose his revenue and/or assets, he was being removed “from further parole consideration.” In November 1980, petitioner signed his financial disclosure affidavit showing he had no revenue and no assets, and was given another PPRD of June 6, 1989, under the current guidelines.

Under the facts of this case, the Commission erred in changing petitioner’s established and binding PPRD of September 2, 1984. Section 947.172, Fla.Stat. (1979), provides the procedure under which a prisoner and the Commission establish a PPRD. Subsection (3) provides that a presumptive parole release date shall become binding on the Commission when agreement on a presumptive parole release date is reached. In McKahn v. Florida Parole and Probation Commission, 399 So.2d 476 (Fla. 1st DCA 1981) we wrote:

Section 947.172(3) unambiguously states that a presumptive parole release date “shall become binding on the commission when agreement on a ... date is reached.” The only explicitly stated exceptions to the binding effect of the date entered are “for reasons of institutional conduct or the acquisition of new information not available at the time of the initial interview.” Section 947.16(4). Additionally, we are of the view that Section 947.16(4) should be considered in pari materia with Section 947.173(3), permitting the Commission to modify a parole release date “for good cause in exceptional circumstances.”

If filing a financial affidavit were a condition precedent to an inmate’s PPRD being set or if failure to do so could nullify an established PPRD, this important fact could and should have been ascertained prior to or at the time of the review on August 15, 1979. Petitioner has not committed any behavioral infractions or institutional misconduct while in prison. (It would certainly strain a point here to call the failure to file a financial affidavit “institutional misconduct,” the ultimate result of which could add almost 5 years to this inmate’s PPRD. The petitioner’s failure to file a financial affidavit could have been easily discovered by the Commission and was, thus, available information at the initial interview when petitioner’s PPRD was set or at the review when his PPRD was corrected and modified. The impact of this omission should be de minimis.) Further, no good cause or exceptional circumstances have been shown that would warrant the Commission’s action in petitioner’s case.

Rule 23-16.051(7), Fla.Admin.Code, contemplates the changing of a PPRD only in the event of institutional misconduct or the acquisition of new information which was unavailable at the time of the initial interview. The rule alsq requires that the reason for changing a PPRD be specified in writing. There is no indication that this rule was complied with by the Commission in petitioner’s case.

Section 947.16(1) and (2),.Fla.Stat. (1979) express the legislative intent that prisoners with sentences in excess of five years be interviewed within one year of confinement in execution of the judgment. While the Commission would have us impose conditions precedent to this requirement, the language of the statute indicates that only two possible conditions precedent exist: first, the record during confinement must be good, and second, there must be no laws providing otherwise. Although under § 944.485, supra, petitioner would not be eligible for parole and, consequently, able to be paroled until he signed the financial disclosure affidavit, he was eligible for consideration for parole under § 947.16(1) in 1979 when he received his PPRD. I would order the Commission to reinstate the PPRD of September 2,1984, as agreed upon by the parties in September of 1979.

      . Petitioner requested review of his second PPRD on March 13, 1981. However, the Commission did not answer his review request, apparently having misfiled the request, until January 6, 1982.

      . Daniels v. Florida Parole & Probation Commission, 401 So.2d 1351 (Fla. 1st DCA 1981).

      . If the filing date is not on the Commission’s final order, the filing date will be considered to be the date the order was mailed to the inmate. Ibid.

      . 944.485 Department to adopt pían for subsistence fees with respect to certain prisoners; time of adoption; requirements.—
      (1) ... each prisoner in the state correctional system, ...
      (a) Shall disclose all revenue or assets as a condition of parole eligibility.

      . Petitioner asserts that he assumed the statement meant he would not receive his biennial review, not that the agreed upon PPRD was being nullified. In fact, he was not aware that his original PPRD had been nullified until February 18, 1981, when the Commission acted to reestablish his PPRD.

      .The Commission had amended its rules since the date of petitioner’s initial interview on June 14, 1979.
      Notable is the statement on the Commission action form (which sets the new June 6, 1989 PPRD) indicating that all previous PPRDs were nullified. Until then, petitioner apparently had not been informed that his established PPRD had been voided.
      New Commission Rule 23-21.05(4)(b) (effective September 10, 1981) now requires the hearing examiner at the initial interview to, ascertain whether the parole applicant has filed* his financial disclosure affidavit.

      . Rule 23-16.051. Procedures.

      (7) The Commission may, for good cause, direct a Hearing Examiner Panel to conduct a subsequent hearing for review of the presumptive parole release date. The presumptive parole release date may be changed for reasons of institutional misconduct or the acquisition of new information which was unavailable at the time of the initial interview. Both the directive for the interview and any decision made by the Commission subsequent to the interview to change the presumptive parole release date must specify in writing the reasons for those actions.

      . While there is no absolute right to parole, there is a right to a proper consideration for parole. . . . The Parole Commission is required, as any other body, to comply with constitutional requirements; it cannot deny parole upon illegal grounds or upon improper considerations .... Moore v. Florida Parole and Probation Commission, 289 So.2d 719 (Fla.1974).


author: PER CURIAM.

text:
    Timothy Wayne HAMPTON, Petitioner, v. Charles E. MINER, Jr., Circuit Judge, Second Judicial Circuit in and for Leon County, Florida, Respondent.
    No. AJ-422.
    District Court of Appeal of Florida, First District.
    April 7, 1982.

      Elwin R. Thrasher, Jr., Tallahassee, for petitioner.
   PER CURIAM.

The issue presented by this petition for writ of prohibition is whether “exceptional circumstances” existed which would justify the trial court’s extension of the speedy trial period for sixty days. See Fla.R. Crim.P. 3.191(f). The trial court’s well-reasoned order extending the time for speedy trial is adopted as this Court’s opinion as set forth below.

Defendant, Timothy Wayne Hampton, was arrested on a warrant charging Murder in the Second Degree on August 4, 1981. The probable cause supporting the issuance of the arrest warrant was furnished largely by one who claimed to be an eye witness to the murder. Two weeks later, on August 18,1981 the State Attorney’s office filed an information charging defendant with one count of Second Degree Murder in the death of one Samuel Walker.
On September 21, 1981 the State took the matter before the Leon County Grand Jury seeking an indictment for Murder in the First Degree. When called to give her testimony before the Grand Jury, the supposed eye witness recanted her statement given previously to police officers and claimed that she had been coerced, that she did not witness the killing of Samuel Walker and further that she did not even know Samuel Walker. Because this testimony was crucial to the State’s case and the supposed eye witness was adamant in her recantation, the Grand Jury, finding insufficient evidence to support a prosecution for murder in any degree, returned a no-true bill on September 22, 1981. On the following day, the State filed a nolle prosequi of the charge contained in the information then pending. It is noted parenthetically that the same attorney who now represents defendant in the instant proceeding represented him during the events described above.
Although the death of Samuel Walker was the subject of continuing investigation, nothing more of any significance happened until January 11, 1982. On that day the defendant, accompanied by his attorney, was in the Leon County Courthouse for the purpose of entering a no contest plea to an unrelated charge. While standing with his attorney in the corridor outside the courtroom during a break, defendant was observed by one Don Strickland, a person with whom defendant had shared a cell at the Leon County jail for a short period of time after defendant’s arrest in August of 1981. Strickland was in the Leon County Courthouse to confer regarding his work assignment with Sergeant Burl Peacock, coordinator of a community service program established as an alternative to incarceration. During conversation with Sergeant Peacock, Strickland revealed that, while the two were cellmates, he had overheard defendant admit shooting Samuel Walker and disposing of his body. Sergeant Peacock immediately reported this matter to Assistant State Attorney Robert Cummings who in turn caused another information to be filed charging defendant once again with the crime of Second Degree Murder in the death of Samuel Walker. This second information for the same offense was filed on January 12, 1982, defendant was arraigned on January 14, 1982, and trial was set for January 27, 1982.
Superimposing the above recited sequence of operative events on the face of the 180 day speedy trial clock, it appears that the information in the instant case was filed on day 162, defendant was arraigned two days later and trial was set on the 177th day. The motions which are the subject of this Order were filed on the 169th day. The speedy trial clock will wind down on Monday, February 1, 1982, unless reset by the Court before that time.. . .
Fla.R.Crim.P. 3.191(f) provides that the court may order an extension of the speedy trial time where exceptional circumstances are shown to exist. Such circumstances are defined as those which as a matter of substantial justice to the accused or the State or both require an order by the court. While the rule sets forth several examples of circumstances deemed to be exceptional, it does not purport to include an exhaustive or exclusive cataloging of such circumstances. State v. Felton, 348 So.2nd 1214 (Fla. 4th DCA 1977). Judge Stephen Grimes, in a concurring opinion in Sumbry v. State, 310 So.2d 445 (Fla.App.2nd DCA 1975), observed that the “speedy trial rule serves the laudable objective of trying to ensure that an arrested person shall be brought to trial with reasonable promptness. In spite of the care with which it was drawn, its drafters could not possibly conceive of every circumstance upon which it might have an effect.
Sit * * * sp *
In his opinion in Sumbry, Judge Grimes offers guidance to the trial judge faced in a similar case with the duty to assure “substantial justice” to an accused and the State.
In my view, whenever an information is filed near the end of the applicable time limit prescribed by the speedy trial rule and the defendant urges that he has had insufficient time to prepare for trial, the court should first inquire into the circumstances of whether the defendant’s position is well taken. If so, the court should then continue the trial for a sufficient length of time to allow the defendant a reasonable time to prepare even though the new trial date falls beyond the speedy trial limit. At the same time the court should consider whether or not exceptional circumstances exist under Rule 3.191(f), RCrP, as to extend the time for speedy trial to include the new date.
(Citations omitted).
The reason why the state delayed so long in filing its information would probably be the most persuasive factor in the determination of whether the time should be extended. If in the words of the rule it resulted from “lack of diligent preparation” or “other avoidable or foreseeable delays,” the court should not extend the time, realizing that as soon as the applicable time period has passed the defendant will be entitled to discharge upon motion under the rule. If, on the other hand, the state can present good reason for the delay in filing the information, the court should so indicate and extend the time for speedy trial to encompass the new trial date.

Applying Judge Grimes’ view to the case at hand it seems clear and counsel and the court agree that defendant has had insufficient time to prepare his defense. It is equally clear that the turn of events that brought the defendant once more before the court charged with the same offense previously nolle pressed for lack of creditable evidence were not contrived by the state nor were they the product of prosecutorial dilly, dally, delay, oppressiveness, or over zealousness. But for the chance encounter between the defendant and his former cellmate three weeks before the running of the speedy trial time he would never have been called to account. Not only are the circumstances offered by the State in its extension request fortuitous and unforeseeable; [tjhey are exceptional within the meaning and intendment of the rule.

The petition for writ of prohibition is DENIED.

BOOTH, SHIVERS and JOANOS, JJ., concur.


author: JOANOS, Judge.

text:
    Polly Leigh BODDEN, Appellant, v. STATE of Florida, Appellee.
    No. AE-252.
    District Court of Appeal of Florida, First District.
    April 8, 1982.
    Louis 0. Frost, Jr., Public Defender, and Edward D. Porter, Asst. Public Defender, Jacksonville, for appellant.
    Jim Smith, Atty. Gen., and Richard A. Patterson, Asst. Atty. Gen., Tallahassee, for appellee.
   JOANOS, Judge.

Appellant raises in this appeal the sole issue of whether one of the conditions imposed on her by the probation order is valid. Having reviewed the record and the applicable law, we conclude that it is not.

Since the purpose of probation is rehabilitation, Kominsky v. State, 330 So.2d 800 (Fla. 1st DCA 1976), the propriety of a special condition of probation must be evaluated in terms of whether it is reasonably related to rehabilitation. As set forth in Rodriguez v. State, 378 So.2d 7 (Fla. 2d DCA 1979):

In determining whether a condition of probation is reasonably related to rehabilitation, we believe that a condition is invalid if it (1) has no relationship to the crime of which the offender was convicted, (2) relates to conduct which is not in itself criminal, and (3) requires or forbids conduct which is not reasonably related to future criminality.

378 So.2d at 9.

While we understand the concerns of the trial judge which prompted his imposition of the special condition, we are of the opinion that those concerns were not focused on ■ the issue of Bodden’s rehabilitation as measured by the Rodriguez test. Thus, denial of Bodden’s motion to strike special condition twelve (12) was error.

Accordingly, we hereby strike condition twelve (12) from the order of probation. The “Judgment of Guilt and Placing Defendant on Probation,” is otherwise AFFIRMED.

BOOTH and SHIVERS, JJ., concur.


text:
    THE FLORIDA BAR, Complainant, v. Eugene J. ETHIER, Respondent.
    No. 60284.
    Supreme Court of Florida.
    March 11, 1982.
    John F. Harkness, Jr., Executive Director and Stanley A. Spring, Staff Counsel, Tallahassee, Jacquelyn Plasner Needelman, Bar Counsel, Fort Lauderdale, and Paul Erickson, Chairman, Fifteenth Judicial Circuit Grievance Committee “A”, Palm Beach, The Florida Bar, for complainant.
    Charles A. Nugent, West Palm Beach, for respondent.
   PER CURIAM.

In this bar grievance proceeding the referee found Ethier had violated Florida Bar Integration Rule, article XI, Rule 11.-02(3)(a). The referee recommended, inter alia, that Ethier be given a thirty day suspension from the practice of law. Neither party has appealed the referee’s report. After having carefully reviewed the record, we approve the findings of the referee and hereby suspend Eugene J. Ethier from the practice of law for a period of thirty days, effective April 12, 1982, thereby giving respondent time to close out his practice and take the necessary steps to protect his clients. Respondent shall not accept any new business.

Costs in the amount of $945.80 are taxed against the respondent.

It is so ordered.

ADKINS, A. C. J., and BOYD, OVER-TON, ALDERMAN and EHRLICH, JJ., concur.


text:
    Jesus M. SILVA and Olga Silva, his wife, Petitioners, v. PEDRO REALTY, INC., Respondent.
    No. 60396.
    Supreme Court of Florida.
    March 11, 1982.
    Fernando Eduardo Heria of the Law Offices of Irma V. Hernandez, Hialeah, for petitioners.
    Manuel E. Oliver, Hialeah, for respondent.
   PER CURIAM.

The sole question before us for review is whether an order denying a motion to vacate a default is appealable under Florida Rule of Appellate Procedure 9.130(a)(3)(C)(iv). The District Court of Appeal, Third District, in the case now before us held that it was appealable. Pedro Realty, Inc. v. Silva, 392 So.2d 1005 (Fla. 3d DCA 1981). This holding directly and expressly conflicts with Caribbean Agencies, Inc. v. Agri-Export, Inc., 384 So.2d 281 (Fla. 4th DCA 1980), and Moody v. Moody, 371 So.2d 553 (Fla. 2d DCA 1979), which hold that the district court is without jurisdiction to consider an appeal from an order denying a motion to vacate a default.

Our recent decision in Doctor’s Hospital of Hollywood, Inc. v. Madison, 411 So.2d 190 (Fla.1982), which holds that an order denying á motion to vacate a default is appealable under Florida Rule of Appellate Procedure 9.130(a)(3)(C)(iv), resolves this conflict.

Accordingly, we approve the decision of the Third District in Pedro Realty, Inc. v. Silva and disapprove the decisions of the Fourth and Second Districts in Caribbean Agencies, Inc. v. Agri-Export, Inc. and Moody v. Moody.

It is so ordered.

SUNDBERG, C. J., and ADKINS, BOYD, OVERTON, ALDERMAN, McDONALD and EHRLICH, JJ., concur.

      . By Notice to Invoke Discretionary Review filed March 16, 1981, petitioners sought review of the Third District’s decision reported at 392 So.2d 1005 (Fla. 3d DCA 1981), on the basis of conflict with several cited decisions. Their brief on jurisdiction was limited to an explanation of conflict between this district court decision denying dismissal of the appeal and the several decisions which announced contrary holdings. We accepted jurisdiction to review this decision of the district court based on express and direct conflict. Petitioners now, in their brief on the merits, attempt to argue the merits of the decision properly before us as well as the subsequent decision of the Third District decided April 28, 1981, Pedro Realty, Inc. v. Silva, 399 So.2d 367 (Fla. 3d DCA 1981), which decision is not properly before us for review. We will not consider any argument directed to the propriety of the second decision from which no notice of review was sought.


text:
    Julian WORRELL and Roselynn Worrell, his wife, et al., Appellants, v. JOHN F. KENNEDY MEMORIAL HOSPITAL, INC., et al., Appellees.
    Nos. 78-750, 78-869.
    District Court of Appeal of Florida, Fourth District.
    Sept. 2, 1981.
    David T. Price of Price & Byrne, Fort Lauderdale, for appellants.
    Jack Miller of Brennan, McAliley, Hays-kar & McAliley, West Palm Beach, for ap-pellee, John F. Kennedy Memorial Hospital, Inc.
    Marjorie Gadarian of Jones & Foster, P.A., West Palm Beach, for appellees, Stanley Dober, M.D., Alan B. Cohen, M.D., and H. John Richmond, M.D.
   PER CURIAM.

In view of the Supreme Court’s decision in Dober v. Worrell, 401 So.2d 1322, Fla. Case No. 59,608, opinion filed July 23, 1981, this Court’s opinion in Worrell v. John F. Kennedy Memorial Hospital, Inc., 384 So.2d 897 (Fla. 4th DCA 1980), is modified and the summary judgment in question is unconditionally affirmed.

AFFIRMED.

LETTS, C. J., and BERANEK and HERSEY, JJ., concur.


text:
    Charles Lee BAKER, Appellant, v. STATE of Florida, Appellee.
    No. 80-1370.
    District Court of Appeal of Florida, Fourth District.
    Sept. 9, 1981.
    Rehearing Denied Jan. 13, 1982.
    Richard L. Jorandby, Public Defender, and Ellen Morris, Asst. Public Defender, West Palm Beach, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Andrea T. Mohel, Asst. Atty. Gen., West Palm Beach, for appellee.
   PER CURIAM.

Only one point in this appeal from a judgment and sentence for robbery is meritorious and requires discussion. Appellant correctly asserts, and the State concedes, that the imposition of victim costs of $10.00 and assessment costs of $2.00 was erroneous. We amend the final judgment and sentence to correct this impropriety. In all other respects the judgment and sentence are affirmed.

AFFIRMED AS AMENDED.

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


text:
    WESTERN BAKERY & PASTRY, INC., a Florida Corporation, Appellant, v. KENT INSURANCE COMPANY, a Florida Corporation, Appellee.
    No. 80-2072.
    District Court of Appeal of Florida, Fourth District.
    Sept. 23, 1981.
    Norman D. Zimmerman, Pompano Beach, for appellant.
    George W. Chesrow of Walton, Lantaff, Schroeder & Carson, Miami, for appellee.
   PER CURIAM.

AFFIRMED.

BERANEK and HERSEY, JJ., and OWEN, WILLIAM C., Jr., (Retired) Associate Judge, concur.


text:
    Bob PULLEY, as parent and natural guardian of Vincent Pulley, a minor, Appellant, v. SECURITY MUTUAL CASUALTY COMPANY, a foreign corporation, Appellee.
    No. 81-700.
    District Court of Appeal of Florida, Second District.
    Nov. 20, 1981.
    B. Lee Elam of B. Lee Elam, P.A., Brandon, for appellant.
    Kenneth L. Olsen of Miller, McKendree & Somers, Tampa, for appellee.
   PER CURIAM.

Affirmed. Holt v. State Automobile Mutual Insurance Co,, 385 So.2d 1058 (Fla. 4th DCA 1980).

BOARDMAN, A. C. J., and GRIMES and OTT, JJ., concur.


author: HERSEY, Judge.

text:
    CITY OF HOLLYWOOD EMPLOYEES RETIREMENT FUND, Trustees of the City of Hollywood General Employees Retirement Fund and the City of Hollywood, Florida, Petitioners, v. Mary ALLEN, Respondent.
    No. 81-1201.
    District Court of Appeal of Florida, Fourth District.
    Nov. 25, 1981.
    Rehearing Denied March 3, 1982.

      Nancy A. Cousins, City Atty., and Andrew DeGraffenreidt, III, Deputy City Atty., Hollywood, for petitioners.
    Jerome H. Wolfson of Wolfson, Appel & Brown, P. A., Miami, for respondent.
   HERSEY, Judge.

The Pension Board of the City of Hollywood Employees Retirement Fund determined that respondent, Mary Allen, was not entitled to a pension in an amount equivalent to seventy five percent (75%) of her salary, upon becoming permanently disabled, because her disability was not the direct and proximate result of and while in the performance of an act of duty as an employee of the City of Hollywood.-

The Circuit Court reversed for lack of competent substantial evidence to support the findings of the Pension Board and for other related reasons.

By petition for writ of certiorari we are requested to reverse this ruling of the Circuit Court.

The petition contains a summary of the pertinent evidence and attempts to conclude that as a matter of law the findings of the Circuit Court are not supportable. What we are asked to do, in reality, is to reweigh the evidence, to eliminate unjustifiable inferences drawn from that evidence and by that process to determine that the finding of the Pension Board was based upon at least some evidence. We decline to do so.

The Circuit Court, sitting in its review capacity, considers whether procedural due process was afforded, whether the essential requirements of the law were observed and whether there is substantial competent evidence to support the finding under review. City of Deerfield Beach v. Vaillant, 399 So.2d 1045 (Fla. 4th DCA 1981).

When the cause reaches this Court for further review by way of certiorari, only procedural due process considerations or failure to observe the essential requirements of the law may properly be raised as grounds for reversal. Campbell v. Vetter, 392 So.2d 6 (Fla. 4th DCA 1980); City of Deerfield Beach v. Vaillant, supra.

There has bee.n no showing here, either that petitioners were not afforded procedural due process or that the Circuit Court failed to observe the essential requirements of law. On that basis we deny the petition for writ of certiorari.

CERTIORARI DENIED.

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


text:
    STATE of Florida, Appellant, v. Stuart Charles JOHNS, Appellee.
    No. 81-197.
    District Court of Appeal of Florida, Second District.
    Nov. 25, 1981.
    Jim Smith, Atty. Gen., Tallahassee, and James S. Purdy, Asst. Atty. Gen., Tampa, for appellant.
    Sondra Goldenfarb, Clearwater, and Joseph G. Donahey, Jr., Clearwater, for appel-lee.
   PER CURIAM.

Affirmed. See Suggs v. State, 358 So.2d 55 (Fla. 2d DCA 1978).

RYDER, A. C. J., and DANAHY and SCHOONOVER, JJ., concur.


text:
    James Earl MOORE, Appellant, v. STATE of Florida, Appellee.
    No. 81-1037.
    District Court of Appeal of Florida, Second District.
    Nov. 25, 1981.
    Jerry Hill, Public Defender, and Michael E. Raiden, Asst. Public Defender, Bartow, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Robert J. Landry, Asst. Atty. Gen., Tampa, for appellee.
   PER CURIAM.

Affirmed. See Booker v. State, 397 So.2d 910 (Fla.1981).

RYDER, A. C. J., and DANAHY and SCHOONOVER, JJ., concur.


text:
    S. G., a Child, Appellant, v. STATE of Florida, Appellee.
    No. 81-1212.
    District Court of Appeal of Florida, Second District.
    Nov. 25, 1981.
    Jerry Hill, Public Defender, Bartow, and Samuel R. Mandelbaum, Asst. Public Defender, and Betsy S. Singer, Legal Intern, Tampa, for ap¡)ellant.
    Jim Smith, Atty. Gen., Tallahassee, and David T. Weisbrod, Asst. Atty. Gen., Tampa, for appellee.
   PER CURIAM.

Affirmed. See Tibbs v. State, 397 So.2d 1120 (Fla.1981).

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


text:
    Kenneth MARTINEZ, Petitioner, v. David DEMERS, County Judge, Respondent.
    No. 81-2041.
    District Court of Appeal of Florida, Second District.
    Dec. 4, 1981.
    Robert E. Jagger, Public Defender, and D. William Venable, Asst. Public Defender, Clearwater, for petitioner.
    James T. Russell, State Atty., and C. Marie King, Asst. State Atty., Clearwater, for respondent.
   PER CURIAM.

Petitioner was charged with trespass after warning, a misdemeanor. Trial was set in the County Court of Pinellas County. Petitioner’s appointed counsel filed a Motion for Sanity Inquisition pursuant to Florida Rule of Criminal Procedure 3.216(a). The respondent county judge entered an order denying the Motion for Sanity Inquisition stating as follows:

It is the ruling of this Court that said motion is sufficient on its face, and an expert would have been appointed had it not been for Administrative Order No. 55 issued by Robert E. Beach, Chief Judge of the Sixth Judicial Circuit on September 24, 1981 which provides:
It is ordered that henceforth all petitions for sanity inquisitions in misdemeanor cases shall be brought before the Criminal Administrator for determination.

The criminal administrator is a circuit court judge. Petitioner has filed a Petition for Writ of Mandamus alleging that the above-quoted administrative order violates the constitutional and statutory provisions giving misdemeanor jurisdiction to county courts and is not otherwise authorized. Respondent contends that the administrative order is authorized by Florida Rule of Judicial Administration 2.050(b)(4) which provides, in part, that “the chief judge [of a circuit] may assign any judge to temporary service for which the judge is qualified in any court in the same circuit.” He argues that the administrative judge functions as an assigned county court judge when hearing motions for sanity inquisition in misdemeanor cases. Respondent further points out that Florida Rule of Judicial Administration 2.050(b)(5) permits the chief judge to designate an administrative judge “to assist with the administrative supervision of the court or division.” Finally, respondent suggests that the order is a proper exercise of the responsibility for the economical operation of the courts within the circuit as illustrated by section 925.036, Florida Statutes (1979), providing that the rate at which a special public defender is to be paid in all cases is set by the chief or senior judge in the circuit.

We perceive respondent’s strongest argument in support of the administrative order to be the authority provided by Rule 2.050(b)(4). If this rule authorizes Administrative Order No. 55, then the constitutional and legislative jurisdictional problems are met because the administrative judge would be sitting as a county judge. However, we do not agree that Rule 2.050(b)(4) is authority for giving a portion of all misdemeanor cases (such as motions for sanity inquisitions) to a circuit judge. The rule contemplates assignment for “temporary service.” The administrative order does not assign a particular judge for a limited amount of time.

Thus, Administrative Order No. 55 is invalid because it contravenes the jurisdictional authority of county judges. This Petition for Writ of Mandamus is granted to the extent that respondent shall rule on the merits of the Motion for Sanity Inquisition filed by petitioner.

BOARDMAN, A.C.J., and GRIMES and OTT, JJ., concur.


text:
    Evelyn Allene HAMBLEN, Appellant, v. Clark Gene HAMBLEN, Appellee.
    No. 81-84.
    District Court of Appeal of Florida, Second District.
    Dec. 11, 1981.
    Stevan T. Northcutt of Levine, Freedman, Hirsch & Levinson, P.A., Tampa, for appellant.
    Raymond A. Alley, Jr. of Trinkle & Red-man, P.A., Brandon, for appellee.
   PER CURIAM.

Affirmed. See Canakaris v. Canakaris, 382 So.2d 1197 (Fla.1980).

GRIMES, A.C.J., and RYDER and DAN-AHY, JJ., concur.


text:
    Karen W. HARVEY, Appellant, v. AMERICAN INDEMNITY COMPANY, a corporation, Appellee.
    No. 80-2196.
    District Court of Appeal of Florida, Second District.
    Dec. 16, 1981.
    Bruce D. Frankel of Goldberg, Rubinstein & Buckley, Fort Myers, for appellant.
    Gerald W. Pierce of Henderson, Franklin, Starnes & Holt, Fort Myers, for appellee.
   PER CURIAM.

Affirmed. See Kenilworth Insurance Co. v. Drake, 396 So.2d 836 (Fla. 2d DCA 1981).

SCHEB, C. J., and RYDER and DAN-AHY, JJ., concur.


text:
    Morris DIGGS, Appellant, v. STATE of Florida, Appellee.
    No. 81-1281.
    District Court of Appeal of Florida, Second District.
    Dec. 16, 1981.
    Jerry Hill, Public Defender, and Karla J. Staker, Asst. Public Defender, Bartow, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Peggy A. Quince, Asst. Atty. Gen., Tampa, for appellee.
   PER CURIAM.

Affirmed. See Knight v. State, 217 So.2d 124 (Fla. 2d DCA 1968).

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


text:
    Roney E. SLAMA, Appellant, v. Jerry Jake SLAMA, Appellee.
    No. 81-1537.
    District Court of Appeal of Florida, Second District.
    Dec. 16, 1981.
    Glenn T. Shelby of the Law Offices of James S. Welch, Lakeland, for appellant.
    L. Guerry Dobbins, Jr., Lakeland, for ap-pellee.
   PER CURIAM.

Affirmed. See Duncan v. Duncan, 379 So.2d 949 (Fla.1980); Mahoney v. Mahoney, 380 So.2d 497 (Fla. 2d DCA 1980).

SCHEB, C. J., and RYDER and DAN-AHY, JJ., concur.


text:
    In the Interest of C. C., a child. STATE of Florida, DEPARTMENT OF HEALTH & REHABILITATIVE SERVICES, Appellant, v. LEE COUNTY, Appellee.
    No. 81-665.
    District Court of Appeal of Florida, Second District.
    Dec. 18, 1981.
    Rehearing Denied Jan. 15, 1982.
    Anthony N. DeLuccia, Jr., Fort Myers, for appellant.
    James Yaeger, County Atty., Fort Myers, for appellee.
   PER CURIAM.

Affirmed. See In the Interest of R.W., 409 So.2d 1069 (Fla. 2d DCA 1981).

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


text:
    In the Interest of T. AND T. W., Children. STATE of Florida, DEPARTMENT OF HEALTH & REHABILITATIVE SERVICES, Appellant, v. LEE COUNTY, Appellee.
    No. 81-856.
    District Court of Appeal of Florida, Second District.
    Dec. 18, 1981.
    Rehearing Denied Jan. 15, 1982.
    Anthony N. DeLuccia, Jr., Fort Myers, for appellant.
    James Yaeger, County Atty., Fort Myers, for appellee.
   PER CURIAM.

Affirmed. See In the Interest of R.W., 409 So.2d 1069 (Fla.2d DCA 1981).

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


text:
    In the Interest of S. AND Y. C., Children. STATE of Florida, DEPARTMENT OF HEALTH & REHABILITATIVE SERVICES, Appellant, v. COLLIER COUNTY, Appellee.
    No. 81-1471.
    District Court of Appeal of Florida, Second District.
    Dec. 18, 1981.
    Rehearing Denied Jan. 15, 1982.
    Anthony N. DeLuccia, Jr., Fort Myers, for appellant.
    Donald Pickworth, County Atty., Naples, for appellee.
   PER CURIAM.

Affirmed. See In the Interest of R. W., 409 So.2d 1069 (Fla.2d DCA 1981).

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


text:
    In the Interest of D.McK.L., Jr., B.J.L., and H.B.L., III, Children. STATE of Florida, DEPARTMENT OF HEALTH & REHABILITATIVE SERVICES, Appellant, v. COLLIER COUNTY, Appellee.
    No. 81-1472.
    District Court of Appeal of Florida, Second District.
    Dec. 18, 1981.
    Anthony N. DeLuccia, Jr., Fort Myers, for appellant.
    Donald Pickworth, County Atty., Naples, for appellee.
   PER CURIAM.

Affirmed. See In the Interest of R.W., 409 So.2d 1069 (Fla.2d DCA 1981).

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


text:
    A. T., a Child, Appellant, v. STATE of Florida, Appellee.
    No. 81-951.
    District Court of Appeal of Florida, Second District.
    Dec. 23, 1981.
    Jerry Hill, Public Defender, Bartow, and Allyn Giambalvo, Asst. Public Defender, St. Petersburg, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Deborah A. Osmond, Asst. Atty. Gen., Tampa, for appellee.
   PER CURIAM.

Affirmed. See State v. Spurling, 385 So.2d 672 (Fla. 2d DCA 1980); State v. Payton, 344 So.2d 648 (Fla. 2d DCA 1977); and Codie v. State, 313 So.2d 754 (Fla.1975).

HOBSON, A. C. J., and BOARDMAN and OTT, JJ., concur.


text:
    R. R. S., a Child, Appellant, v. STATE of Florida, Appellee.
    No. 81-1331.
    District Court of Appeal of Florida, Second District.
    Dec. 23, 1981.
    Jerry Hill, Public Defender, Bartow, and Deborah Brueckheimer, Asst. Public Defender, St. Petersburg, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Michael J. Kotler, Asst. Atty. Gen., Tampa, for appellee.
   PER CURIAM.

Affirmed. See, S. H. B. v. State, 355 So.2d 1176 (Fla.1978).

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


text:
    MANATEE RAINTREE ASSOCIATION, INC., Appellant, v. FIRST WISCONSIN NATIONAL BANK OF MILWAUKEE, Appellee.
    No. 81-1255.
    District Court of Appeal of Florida, Second District.
    Dec. 30, 1981.
    Ronald A. Cyril and Omer S. Causey of Nelson, Hesse, Cyril, Weber, Smith & Wid-man, Sarasota, for appellant.
    W. Robert Mann of Mann & Fay, Braden-ton, and Richard Candelora of Trenam, Simmons, Kemker, Scharf, Barkin, Frye & O’Neill, Tampa, for appellee.
   PER CURIAM.

Affirmed. See Marquette National Bank of Minneapolis v. First of Omaha Service Corp., 439 U.S. 299, 99 S.Ct. 540, 58 L.Ed.2d 534 (1978).

HOBSON, A. C. J., and BOARDMAN and OTT, JJ., concur.