text:
    SOUTHEASTERN MAIL TRANSPORT, INC., a corporation, Appellant, v. AMOCO OIL COMPANY, Appellee.
    No. AD-446.
    District Court of Appeal of Florida, First District.
    Aug. 17, 1981.
    Rehearing Denied Sept. 11, 1981.

      Richard G. Hathaway of Milam & Wilbur, Jacksonville, for appellant.
    Judson Freeman of Freeman, Richardson, Watson, Kelly & Livermore, P. A., Jacksonville, for appellee.
   MILLS, Judge.

Southeastern Mail Transport, Inc. (Southeastern) appeals from a nonfinal order rejecting its challenge to the sufficiency of service of process. We reverse.

Amoco Oil Company (Amoco) filed a complaint against appellant Southeastern, a Florida corporation. The return of service of process by a deputy sheriff of Duval County shows that he served a true copy of the process on a Mr. Charles Mathews, whom he identified on the return as a business agent of Southeastern. The return also specifically asserts that it was served in the absence of the corporation’s president, vice president, other head, cashier, treasurer, secretary, general manager, directors or any other officers and specifically recites that service was effected under Section 48.-081, Florida Statutes (1979).

Southeastern filed a motion to dismiss stating that it was making a limited appearance for the singular purpose of having the complaint dismissed because of insufficiency of process or, alternatively, insufficiency of service of process. Southeastern submitted affidavits from the president of the corporation and Charles Mathews, the person served. The president set forth the names, titles, and addresses of all of the directors and officers of the corporation, stated that he was the registered agent for the corporation, and listed the addresses of the business offices. He alleged that he was within Duval County at all times on the date service was made. According to his affidavit, Charles Mathews was the dispatcher at one of the offices whose duties are to receive instructions as to truck routes, to arrange with truck drivers to run those routes, and to take phone calls from working drivers to answer their questions or assist with problems. He is not authorized to accept service of process; he has no management duties; he is not authorized to write checks, negotiate or execute agreements, maintain custody of any corporate or financial records, or have control over any corporate funds. He is not a shareholder, a director, officer, cashier, or general manager of the corporation, and, the affidavit asserts, he is not a business agent of Southeastern. Mathews affidavit also asserted that he was a dispatcher and set forth the same duties and responsibilities as those stated by the president, including the fact that he is not authorized to make business decisions, accept service of process, etc. He averred that he was not a business agent of Southeastern.

The trial court denied the motion without explanation.

Service of process was insufficient for two reasons: (1) the assertion in the return that service was made on the business agent in the absence of the superior officers of the corporation was rebutted by an uncontradicted affidavit of the president of the corporation, and (2) Charles Mathews was affirmatively shown to have been a mere employee and not a “business agent” of the corporation.

Amoco’s contention that the affidavit concerning the president’s whereabouts on the date of service was insufficient to rebut the return is without merit. Under Section 48.081(1) service may be made on a corporation’s business agent only in the absence of the president, vice president, or other officer of the corporation; the cashier, treasurer, secretary, or general manager; and any director. The deputy stated he served Mathews as business agent in the absence of the superior officers. He does not state whether those officers were absent from the county or simply from that address. The term “in the absence of,” as used in the statute, has been interpreted by case law to require absence from the county. Cherry Lake Farms, Inc. v. Love, 129 Fla. 469, 176 So. 486 (1937). In Cherry Lake, supra, service was deemed proper because there was no showing that a superior officer was in the county on the day of service. In the instant case, the allegation that the superior officers were absent from the county is directly rebutted by the affidavit of the president. The deputy sheriff could have attempted service under Section 48.091, which allows him to go to the address at which the registered agent is required to be present every business day from 10 a. m. to noon and, finding the registered agent absent from that address, serve any employee. However, in the instant case, the deputy specifically stated that he effected service under Section 48.-081.

Even if the service had been made on Mathews “in the absence of” the superior officers, it would have been insufficient because the evidence set forth in the affidavits affirmatively establishes that Mathews was not a “business agent” as defined by case law.

For purposes of service of process, a business agent has been held to be the person who represents the corporation and who officially speaks for it in the local business affairs of the corporation. Dade Erection Service, Inc. v. Sims Crane Service, Inc., 379 So.2d 423 (Fla. 2d DCA 1980). Furthermore, he must have the general authority to act for the corporation and be authorized to manage its business within the state. Valdosta Milling Co. v. Garretson, 54 So.2d 196 (Fla.1951). The affidavits showed that Mathews was not, under these definitions, a business agent. He was merely an employee, a truck dispatcher who had limited authority. Accordingly, the trial court erred in ruling that service of process was sufficient to give the court jurisdiction over Southeastern.

Procedurally, Southeastern concedes that its defense would have been more properly raised by a motion to quash rather than by a motion to dismiss. There is no indication that the trial court denied the motion for procedural rather than substantive reasons and we do not perceive any fatal defect in the styling of the motion. The issue to be decided was placed before the trial court by special appearance in a motion preceding the answer and this was sufficient to raise and preserve the contention.

REVERSED and REMANDED for proceedings consistent with this opinion.

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


source: Caselaw Access Project

author: COBB, Judge.

license: Public Domain

text:
    Terry Edward GARDNER, Petitioner, v. Ernest P. “Kayo” MURPHY, Sheriff, Osceola County, Florida, Respondent.
    No. 81-720.
    District Court of Appeal of Florida, Fifth District.
    Aug. 18, 1981.
    Joseph W. Durocher, Public Defender, and Clyde E. Wolfe, Asst. Public Defender, Kissimmee, for petitioner.
    Jim Smith, Atty. Gen., Tallahassee, and Jon B. Morgan, Asst. State’s Atty., Kissim-mee, for respondent.
   COBB, Judge.

Petitioner Gardner is charged with escape in violation of section 944.40, Florida Statutes (1979). Following a denial of his motion to set bail, he brought this habeas corpus proceeding, alleging, among other things, that he is being held in violation of Article I, Section 14 of the Florida Constitution.

Article I, Section 14 provides:

Until adjudged guilty, every person charged with a crime or violation of municipal or county ordinance shall be entitled to release on reasonable bail with sufficient surety unless charged with a capital offense or an offense punishable by life imprisonment and the proof of guilt is evident or the presumption is great.

In its order denying bail, the trial court noted that Gardner’s “PSI” indicated two incidents of escape and a third incident of fleeing and attempting to elude a police officer. The court further noted that the pending charge is for escape. Upon the authority of Hancock v. State, 386 So.2d 613 (Fla. 5th DCA 1980), the trial court concluded that Gardner’s past conduct was sufficient to forfeit his constitutional right to release on bail.

We agree with the trial judge that Hancock and the later cases of Middleton v. Polk, 399 So.2d 1105 (Fla. 5th DCA 1981), and Johnson v. Pellicer, 388 So.2d 571 (Fla. 5th DCA 1980), indicate there are situations where Florida’s constitutional right to be released on bail can be forfeited upon conduct that “evinces a flagrant disregard of the court’s authority or effort to evade its processes.” However, while it is constitutionally permissible to revoke for cause a reasonable bail already granted and to then deny subsequent applications, Middleton, 399 So.2d at 1106, Article I, Section 14 requires that every person accused of a less-than-capital or -life offense be granted reasonable bail in the first instance. To the extent they read otherwise, we recede from Middleton, Johnson and Hancock.

Our conclusion is supported by State v. Arthur, 390 So.2d 717 (Fla.1980), where the court stated:

Under [Article I, Section 14 of the Florida Constitution], if the proof is evident or the presumption great that a person accused of a capital offense or an offense punishable by life imprisonment is guilty of the offense charged, then the accused is not entitled to release on reasonable bail as a matter of right. All other classes of accused persons are entitled to release on reasonable bail until adjudged guilty. [Emphasis added].

Our constitution’s language is clear and unequivocal: except when charged with a capital or life offense, every person is entitled to release on reasonable bail until adjudged guilty. The constitution, however, grants reasonable, not unbridled, release. Should a defendant violate a reasonable condition to bail, bail can be revoked. Middleton. Having been provided reasonable bail only to violate a condition thereof, a defendant cannot claim he has been deprived of his constitutional right to bail should the trial court reasonably deny subsequent applications for bail.

In light of Gardner’s track record, which indicates he is a proven runner, there would seem no better case for the outright denial of bail. But our constitution excludes neither convicted nor accused escapees from the right to initial release on bail. These factors, of course, may well influence the trial judge in his determination as to the amount of the reasonable bail. Since Gardner has never been granted bail in this cause, he is being held in violation of Arti-ele I, Section 14. Gardner’s petition for writ of habeas corpus is therefore granted, and this case remanded to the trial court to either promptly set reasonable bail or to discharge Gardner.

GRANTED and REMANDED.

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

      . In the motion, Gardner alleged that while waiting in Texas to be brought back to Florida, he completed the sentence he was serving at the time of his alleged escape from the Kissim-mee Community Correctional Center.

      . Apparently a prior pre-sentence investigation report that is not in the record before this court.

      . See also Ex Parte McDaniel, 86 Fla. 145, 97 So. 317 (1923).

      . Article 1, Section 9, of the Constitution of 1885, from which current Article I, Section 14, is derived, provided:
      All persons shall be bailable by sufficient sureties, except for capital offenses where the proof is evident or the presumption great.
      This provision was interpreted by our Supreme Court as being absolute: every defendant was entitled to bail, except where charged with a capital offense and the proof was evident or the presumption great:
      The right to bail of one accused of crime by sufficient sureties except for capital offenses where the proof is evident or the presumption great is absolute. No judge or court to whom application is made can properly refuse it. The accused is presumed innocent of the crime charged.
      Ex Parte Hatcher, 86 Fla. 330, 98 So. 72 (1923).

        .But see Gallager v. Butterworth, 484 F.Supp. 1278 (S.D.Fla.1980).


author: DANIEL S. PEARSON, Judge.

text:
    Dr. Carl James MEYER, Appellant, v. STATE of Florida, DEPARTMENT OF BUSINESS REGULATION, DIVISION OF PARI-MUTUEL WAGERING, Appellee.
    No. 79-2402.
    District Court of Appeal of Florida, Third District.
    Aug. 18, 1981.

      Houston, Paircloth, Cooper & Easthope and Earl Faircloth, Fort Lauderdale, for appellant.
    David M. Maloney, Frates, Jacobs & Far-rar, Tallahassee, for appellee.
    Before HENDRY, SCHWARTZ and DANIEL S. PEARSON, JJ.
   DANIEL S. PEARSON, Judge.

We affirm the order of the Department of Business Regulation, Division of PariMutuel Wagering (Division), declaring Dr. Meyer, a veterinarian, permanently ineligible to have a pari-mutuel occupational license enabling him to serve as a veterinarian at racetracks in the State of Florida and imposing a $2,000 fine.

In Solimena v. State of Florida, Department of Business Regulation, Division of Pari-Mutuel Wagering, 402 So.2d 1240 (Fla. 3d DCA 1981), this court held, inter alia, that (1) action by the stewards is not a prerequisite to the jurisdiction of the Division, see Calfin v. State of Florida, Department of Business Regulation, Division of Pari-Mutuel Wagering, 391 So.2d 739 (Fla. 4th DCA 1980); (2) failure to challenge by appropriate motion the Division’s alleged non-compliance with the notice provisions of Section 120.60(5), Florida Statutes (1977), waives the right to complain of non-compliance, see Sheppard v. Board of Dentistry, 385 So.2d 143 (Fla. 1st DCA 1980), particularly where such non-compliance does not impair the fairness of the proceedings and result in prejudice to the applicant or licensee; and (3) although we have jurisdiction to entertain the claim not raised before the agency that Section 550.02(3), Florida Statutes (1977), is (a) unconstitutionally vague in its failure to provide guidelines and (b) unconstitutionally delegates legislative authority to the Division, these attacks upon the statute are unavailing. These holdings are dis-positive on these identical points raised in Meyer’s appeal.

Meyer’s additional challenges are not foreclosed by Solimena. He contends, first, that the rules he was found to have violated are not within the authority granted to the Division by Section 550.02(3), Florida Statutes (1977). Assuming, without deciding, that Meyer may “freshly raise” this question of law without having raised it before the Division, we find that such rules are reasonably related to the objectives of the statute, see Solimena v. State of Florida, Department of Business Regulation, Division of Pari-Mutuel Wagering, supra; compare Department of Business Regulation v. Vandervoort, 273 So.2d 66 (Fla. 1973); Horsemen’s Benevolent and Protective Association v. Division of Pari-Mutuel Wagering, 397 So.2d 692 (Fla. 1981); and thus within the authority granted the Division.

Meyer’s next contention is that the Director of the Division of Pari-Mutuel Wagering should have disqualified himself from presiding over Meyer’s hearing because the Director was aware that another hearing officer, in a separate proceeding against two trainers, Solimena and Joyce, had issued recommended orders which included findings that Meyer had injected the horses of these trainers with Sublimaze. Meyer contended that he was “entitled to have a hearing officer who is not acquainted with any testimony, evidence or findings concerning [Meyer] that were received prior to the hearing.” Because the Director admitted that he was “aware of the general nature of what was found” in the Solimena and Joyce hearings, although he had not seen the recommended orders, we address the merits of Meyer’s contention.

It is clear, and Meyer does not contend otherwise, that a combination of investigative, prosecutorial and adjudicative functions in a single body does not per se create an unconstitutional risk of bias. Withrow v. Larkin, 421 U.S. 35, 95 S.Ct. 1456, 43 L.Ed.2d 712 (1975). Meyer’s claim is that specific prejudice is demonstrated solely by the Director’s awareness, through his role as Director, that in separate proceedings against two trainers Meyer was found to have injected horses with Subli-maze. We reject this claim. See Wyatt v. United States, 591 F.2d 260 (4th Cir. 1979) (claim that judge who found Wyatt guilty in non-jury trial had previously sat as trier of fact in separate trial of co-defendant whose testimony on his own behalf implicated Wyatt would not be grounds for disqualification) ; see also Wilisch v. Wilisch, 335 So.2d 861 (Fla. 3d DCA 1976); United States v. Winston, 613 F.2d 221 (9th Cir. 1980).

Therefore, since there is abundant evidence to support the Director’s finding that on nine separate occasions Meyer injected horses with Sublimaze shortly before the scheduled race in violation of the promulgated rules, there is absolutely no reason to disturb the decision of the Division.

Affirmed.

      . Meyer’s license had actually expired before the Division’s action, and his application for a new license had been denied.

      . Renumbered as § 120.60(6), Fla.Stat. (1979), by Ch. 79-142, Laws of Fla.

      . The primary concern of Solimena was the absolute insurer rule, Rule 7E-1.18(3), which is not involved here. Meyer was alleged to have violated Rules 7E-1.06(9)2, 7E-1.06(9)3, 7E-1.-06(9)6, and 7E-1.06(ll)(a), Florida Administrative Code. These rules, respectively, prohibit, with exceptions, the administration of medication within a certain time prior to the scheduled race; require reports of medications administered within 48 hours prior to the scheduled race; provide that a failure to report is deemed unauthorized medication; and prohibit racing a horse with any narcotic, stimulant, depressant, or local anesthetic and subject any person who breaks these rules to a fine or suspension or revocation of license.

      .The Division, relying upon Section 120.56(1), Florida Statutes (1979), argues Meyer waived this issue by failing to raise it in the proceeding below. We view the language of Section 120.-56(1),
      “Any person substantially effected by a rule may seek an administrative determination of the invalidity of the rule on the ground that the rule is an invalid exercise of delegated authority.”
      as permissive authorization to challenge agency action in a non-adjudicatory proceeding, not as a requirement that such an issue be raised in license revocation proceedings. To the extent that the courts in Brevard Community College v. Florida Public Employees Relations Commission, 376 So.2d 16 (Fla. 5th DCA 1979), and Pasco County School Board v. Florida Public Employees Relations Commission, 353 So.2d 108 (Fla. 1st DCA 1978), relied on Section 120.-56(1) when they determined that a failure to attack the rule at the agency level constituted a failure to preserve that issue for appeal, we believe that reliance was misplaced. Compare McKart v. United States, 395 U.S. 185, 89 S.Ct. 1657, 23 L.Ed.2d 194 (1969) (a pure question of law involving statutory interpretation need not be raised to the agency, because “judicial review would not be significantly aided by an additional administrative decision”), with McGee v. United States, 402 U.S. 479, 91 S.Ct. 1565, 29 L.Ed.2d 47 (1971) (if the resolution of the question depends “on the application of expertise by [the] administrative [body] in resolving underlying issues of fact,” then the issue must be raised before the agency).

      .These trainers were co-appellants in the Soli-mena case.

      . Meyer’s motion to disqualify included another allegation that the Director had interviewed witnesses concerning Meyer’s actions as a veterinarian at the track. Meyer’s affidavit in support of his motion to disqualify made no further mention of this allegation, and when the motion was heard, Meyer’s counsel specifically limited his motion to disqualify to “the fact that there have been two recommended orders issued in the case against Joyce and in the case against Solimena.”

      . Meyer’s motion was untimely filed on the day of the scheduled hearing. Rule 28-5.09, Florida Administrative Code, applicable here through Section 120.54(10), Florida Statutes (1979), requires that motions to disqualify pursuant to Section 120.71, Florida Administrative Code, be made at least five days prior to the proceeding unless the party moving to disqualify was previously unaware of the ground. Moreover, Meyer’s motion failed to comply with the procedures for disqualification set forth in Section 38.10, Florida Statutes (1979), which apply to agency hearings. State ex rel. Allen v. Board of Public Instruction, 214 So.2d 7 (Fla. 4th DCA 1968); Bieley v. Brown, 168 So.2d 552 (Fla. 3d DCA 1964).

      . This finding was unnecessary to the decision to suspend or revoke the trainers’ licenses. Under the absolute insurer rule, the trainers could be held responsible for racing drugged horses regardless of whether they knew of the administration of the drugs, Solimena v. State of Florida, Department of Business Regulation,

        Division of Pari-Mutuel Wagering, supra, and regardless of who administered the drugs.

      . Federal cases rejecting efforts to disqualify judges from presiding at jury trials, as distinguished from judges who act as fact finders, are analogous, since the Federal disqualification statute, 28 U.S.C. § 455, draws no distinction between the two roles. Therefore, see Corbett v. Bordenkircher, 615 F.2d 722 (6th Cir. 1980) (judge who, as county attorney, had prosecuted defendant on four occasions, including one case that formed partial basis for current habitual criminal charge, not disqualified); United States v. Partin, 552 F.2d 621 (5th Cir. 1977) (judge who tried defendant whose conviction reversed not disqualified from presiding at new trial); United States v. Mathis, 550 F.2d 180 (4th Cir. 1977); United States v. DiLorenzo, 429 F.2d 216 (2d Cir. 1970), cert. denied, 402 U.S. 950, 91 S.Ct. 1609, 29 L.Ed.2d 120 (1971) (judge who heard trial of co-defendant not disqualified). Even as the judicial system “does not provide for no deposit/no return judges, disposable after one use,” United States v. Partin, supra, at 637 n. 20, so too administrative hearing officers are not in such great supply that their familiarity with other matters concerning or even tending to inculpate the licensee requires, ipso facto, disqualification.

      . Meyer’s own bills to numerous trainers showed that he treated the horses shortly before the races under the guise of treatment for myopathy. Following the races, the treated horses were found to have Sublimaze in their systems. Meyer admitted to one trainer that he had administered Sublimaze to his horse before the race, but assured him it would not show up in a urine test; he admitted to others that he might have treated several horses with Sublimaze before races. At least four trainers saw Meyer inject their horses within two hours before the races. Finally, there were twelve instances (the subject of a separate finding by the Director) where Meyer’s own bills reflected that he gave medication to horses which were never, as required by the rule, reported to the State Veterinarian.


author: PER CURIAM.

text:
    Cleveland PARRISH, a/k/a Cleveland Parrish, Jr., Appellant, v. The STATE of Florida, Appellee.
    No. 80-451.
    District Court of Appeal of Florida, Third District.
    Aug. 18, 1981.

      Bennett H. Brummer, Public Defender and Beth C. Weitzner, Asst. Public Defender, for appellant.
    Jim Smith, Atty. Gen. and Anthony C. Musto, Asst. Atty. Gen., for appellee.
    Before NESBITT and DANIEL S. PEARSON and FERGUSON, JJ.
   PER CURIAM.

The defendant appeals from an order revoking his probation and sentencing him to five years in prison. The amended affidavit of violation of probation charged him with: (1) failure to file monthly probation reports; (2) failure to pay probation supervision costs; and (3) failure to live and remain at liberty without violating any law in that he: (a) operated a motor vehicle without a valid driver’s license; and (b) for the “attachment of unlawful automobile tag.’’ The defendant’s own testimony demonstrates he failed to file probation reports and that he operated a motor vehicle without a driver’s license. Nonetheless, the state failed to demonstrate that the defendant knowingly possessed the unlawful automobile license plate contrary to Section 320.261, Florida Statutes (1979). The revocation of his probation for failure to pay probation supervision costs was unwarranted because the state did not rebut the defendant’s testimony that he was an indigent. Coxon v. State, 365 So.2d 1067 (Fla.2d DCA 1979); Jones v. State, 360 So.2d 1158 (Fla.1st DCA 1978). Consequently, we vacate that portion of the order premising revocation of the defendant’s probation on the latter two grounds but affirm the order revoking his probation because it is otherwise sustainable on a legally sufficient basis. Coxon v. State, supra; Page v. State, 363 So.2d 621 (Fla.1st DCA 1978); Franklin v. State, 226 So.2d 461 (Fla.2d DCA 1969).

As modified, the order appealed from is affirmed.


text:
    Edgar PIETERS, Appellant, v. The STATE of Florida, Appellee.
    No. 80-1249.
    District Court of Appeal of Florida, Third District.
    Aug. 18, 1981.

      Bennett H. Brummer, Public Defender and Michael Zelman, Asst. Public Defender, for appellant.
    Jim Smith, Atty. Gen. and Paul Mendel-son, Asst. Atty. Gen., for appellee.
    Before BARKDULL, SCHWARTZ and FERGUSON, JJ.
   PER CURIAM.

Appellant entered a plea of nolo conten-dere to the charge of burglary and grand theft reserving his right to appeal the court’s denial of his motion for discharge under the speedy trial rule. Fla.R.Crim.P. 3.191.

Appellant and a co-defendant were arrested on October 15, 1979. Trial was set for November 26, 1979. On the date the case was scheduled for trial, counsel for the co-defendant informed the state that he was moving for a continuance due to the state’s failure to provide defendants with the name of an essential witness. Though contending that the continuance should be charged to the state, defendant joined in the motion for continuance. An excerpt of the proceedings before the court on November 26, 1979, reflects “The Court granted Defendant’s oral Motion for Continuance”.

By joining in co-defendant’s motion for continuance, defendant waived the 180 day provision of the speedy-trial rule though retaining his constitutional guarantee to a speedy trial within a reasonable time. If defendant had desired a more expeditious trial date he could have affirmatively demanded to be brought to trial within 60 days. Butterworth v. Fluellen, 389 So.2d 968 (Fla.1980).

Affirmed.


text:
    AMERICAN CASUALTY COMPANY OF READING PA., Appellant, v. BRIM’S FOOD, INC., Appellee.
    No. 81-280.
    District Court of Appeal of Florida, Third District.
    Aug. 18, 1981.
    Heitner & Rosenfeld, North Miami Beach, and Allan Stein, Hollywood, for appellant.
    Samuel M. Spatzer and James K. Parker, Miami, for appellee.
    Before HENDRY, SCHWARTZ and DANIEL S. PEARSON, JJ.
   PER CURIAM.

Affirmed. Applegate v. Barnett Bank of Tallahassee, 377 So.2d 1150 (Fla.1979).


author: COWART, Judge.

text:
    Hubert POWELL and Carolina Casualty Insurance Company, a Florida Corporation, Petitioners, v. L. B. WINGARD; Emmco Insurance Company; Archie Rushin, Jr.; and Ryder Truck Lines, Inc., Respondents.
    No. 81-828.
    District Court of Appeal of Florida, Fifth District.
    Aug. 19, 1981.

      J. Lester Kaney of Cobb & Cole, P. A., Daytona Beach, for petitioners.
    No Appearance for respondent.
   COWART, Judge.

Petitioners and respondents are parties in an automobile accident negligence case. As the consequence of respondents attempting to depose petitioners’ accident reconstruction expert before he had formed his opinion and conclusion based on his investigation, the trial court entered an order imposing sanctions totaling $600 in attorney’s fees and $154 in costs and ordered petitioner Carolina Casualty Insurance Company to pay those sums within 30 days “or their pleadings will be stricken.”

Petitioners seek a writ of certiora-ri to quash this interlocutory order arguing: (1) that petitioners did not induce or cause the other parties to prematurely attempt to depose its expert witness, (2) that petitioner neither failed to comply with any order of court nor did, nor failed to do, any other act justifying the imposition of sanctions authorized under Florida Rule of Civil Procedure 1.380(b)(2)(C) and (F), (3) that petitioner must either pay or suffer its meritorious defensive pleadings to be stricken, and (4) that by certiorari this court should review and quash a trial court order that does not conform to the essential requirements of law where review by plenary appeal from a final judgment would not provide adequate or meaningful relief. Without expressing an opinion as to the correctness of the trial court order sought to be reviewed we deny certiorari for the reason that we do not believe that it is essential to the integrity of our legal system that all claimed interlocutory errors of trial courts be immediately reviewable by an appellate court nor do we believe that the trial court’s error, if any, in this instance will constitute irreparable injury to petitioner which is not subject to adequate redress by plenary appeal from a final judgment. As a practical matter, even the erroneous requirement that petitioner pay $754 in order to continue to participate in the trial proceedings until final judgment should not overtax petitioner’s financial ability nor cause it irreparable injury. Albeit a Hobson’s choice, petitioner does have a choice: pay and participate or decline and, if its pleadings are stricken, appeal after entry of final judgment. If the trial court does wrongfully strike petitioner’s pleadings that error will doubtless be correctable by a reversal and the time and expense of the appeal and new trial will be equally suffered by respondents. See Ford Motor Co. v. Edwards, 363 So.2d 867 (Fla. 1st DCA 1978). The certiorari jurisdiction of district courts of appeal to review non-final orders of lower tribunals under Florida Rule of Appellate Procedure 9.030(b)(2)(A) is not for the purpose of providing a review of each and every non-final order which is not reviewable by appeal under Florida Rule of Appellate Procedure 9.030(b)(1)(B) and 9.130(a)(3). Although admittedly there are many cases taking a more liberal view as to the scope of review by certiorari, the use of that extraordinary writ to review interlocutory orders relating to discovery matters is most appropriate when used to review orders allegedly improperly compelling discovery. See, e. g., Insurance Company of North America v. Noya, 398 So.2d 836 (Fla. 5th DCA 1981); Central Florida Skates, Inc. v. Thomas, 393 So.2d 1200 (Fla. 5th DCA 1981); Palmer v. Servis, 393 So.2d 653 (Fla. 5th DCA 1981); State v. Dolen, 390 So.2d 407 (Fla. 5th DCA 1980). As to certiorari and interlocutory orders generally, see The Hawaiian Inn of Daytona Beach, Inc. v. Snead Construction Corp., 393 So.2d 1201 (Fla. 5th DCA 1981).

THE PETITION FOR WRIT OF CER-TIORARI IS DENIED.

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


author: SHARP, Judge.

text:
    Cephus WADE, Appellant, v. STATE of Florida, Appellee.
    No. 81-239.
    District Court of Appeal of Florida, Fifth District.
    Aug. 19, 1981.
    Cephus Wade, pro se.
    Jim Smith, Atty. Gen., Tallahassee, and Barbara Ann Butler, Asst. Atty. Gen., Day-tona Beach, for appellee.
   SHARP, Judge.

Appellant, Wade, appeals the trial court’s denial of his motion made pursuant to Florida Rule of Criminal Procedure 3.850. Wade alleged that because of ineffective assistance of counsel and other misunderstandings on his part his guilty plea was involuntarily entered. This case is remanded to the trial court to do one of the following pursuant to Rule 3.850; within sixty (60) days of this order:

(1) Attach a copy of the portions of the files and records which conclusively show the prisoner is entitled to no relief;
(2) Grant a prompt hearing on the issue of the competency of counsel and involuntariness of the plea after notice to the prosecuting attorney and after appointment of counsel for the prisoner.

REMANDED.

ORFINGER, J., concurs.

COWART, J., dissents.


text:
    Ronald Phillip ORR, Appellant, v. STATE of Florida, Appellee.
    No. 81-155.
    District Court of Appeal of Florida, Fifth District.
    Aug. 19, 1981.
    James B. Gibson, Public Defender, and Brynn Newton, Asst. Public Defender, Day-tona Beach, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and C. Michael Barnette, Asst. Atty. Gen., Day-tona Beach, for appellee.
   COBB, Judge.

Appellant Orr was charged in four separate informations with multiple counts of various crimes. At his plea hearing, Orr pled guilty as charged to some of the charges and guilty to lesser includeds on some of the charges in return for the state nolle pressing some of the other charges.

Further, at the plea hearing, defense counsel stated that “the state has agreed that all four or [sic] the third to be [sic] felonies that he is going to plead guilty to will be considered concurrent. In other words his maximum exposure would be five years.” The state attorney stated that “the state would not oppose a five-year concurrent cap on any sentence given.” During its questioning of Orr, the trial court stated:

Do you know you could get under the terms of the negotiations you could get up to twenty years ... under the terms of the negotiations you can get five years in the state prison system for this offense, these offenses. Do you understand that?

The trial court subsequently sentenced Orr to five years imprisonment in one of the cases and five years on probation in the other three cases, with all of the sentences running consecutively.

Orr filed a motion to reduce the sentences on the grounds that they violated the plea agreement. The trial court denied the motion, and Orr has appealed.

The statements made by the defense counsel, the state attorney, and the trial court show that they all concurred with the plea agreement that Orr was to receive concurrent sentences with a maximum penalty of five years imprisonment. In light of the trial court’s concurrence in that plea agreement, it was error for the trial court to sentence Orr to consecutive sentences without first notifying Orr that the trial court was going to do so and allowing Orr the opportunity to withdraw his plea. Reynolds v. State, 339 So.2d 714 (Fla.2d DCA 1976); Barker v. State, 259 So.2d 200 (Fla.2d DCA 1972).

Accordingly, we direct the trial court to vacate the present consecutive sentences and to either impose concurrent sentences or else notify Orr of the court’s intention to impose consecutive sentences and give Orr the opportunity to withdraw his plea.

REVERSED and REMANDED with directions.

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

      . Circuit court case numbers 80-52-CFA, 80-113-CFA, 80-114-CFA, and 80-205-CFA.

      . Initially, the notice of appeal was filed prematurely. However, the sentences being attacked have now been rendered and therefore the appeal has matured. Williams v. State, 324 So.2d 74 (Fla.1975); Committee Note to Fla.R.App.P. 9.110(h).


text:
    Robert A. HEDDEN, Appellant, v. Jean A. HEDDEN, Appellee.
    No. 81-107.
    District Court of Appeal of Florida, Fifth District.
    Aug. 19, 1981.
    James R. Dressier, Cocoa Beach, for appellant.
    Kendall T. Moran of Moran & Wasileski, Titusville, for appellee.
   PER CURIAM.

The trial court awarded a special equity as to the husband’s entire interest in real property acquired by the parties jointly during the marriage. This was error because there was not an “unrebutted showing ... that all of the consideration for the property held as tenants by the entireties was supplied by [her] from a source clearly unconnected with the marital relationship”. Ball v. Ball, 335 So.2d 5 at 7 (Fla.1976). See also Sudholt v. Sudholt, 389 So.2d 301 (Fla. 5th DCA 1980); Verace v. Verace, 383 So.2d 995 (Fla. 5th DCA 1980). There was evidence offered by the wife that a portion of the down payment for the property came from her mother. However, there was no proof that money was a gift to the wife solely. In fact, the evidence showed it was a loan to both parties and what part was paid back was paid out of joint funds. The only other evidence concerning this loan was that the remainder was “cancelled.”

The Final Judgment of Dissolution is affirmed in all respects except the award of the special equity in the marital property. That portion of the Judgment is reversed.

AFFIRMED IN PART; REVERSED IN PART.

DAUKSCH, C. J., and SHARP, and CO-WART, JJ., concur.


text:
    Walter S. WILLIAMS, Appellant, v. STATE of Florida, Appellee.
    No. 81-89.
    District Court of Appeal of Florida, Fifth District.
    Aug. 19, 1981.
    James B. Gibson, Public Defender, and Michael S. Becker, Asst. Public Defender, Daytona Beach, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and C. Michael Barnette, Asst. Atty. Gen., Day-tona Beach, for appellee.
   SHARP, Judge.

After pleading guilty to one count of burglary of a dwelling in violation of section 810.02(3), Florida Statutes (1979), and one count of grand theft in violation of section 812.014(2)(b)l, Florida Statutes (1979), appellant was adjudged guilty of both counts. He was required to pay the victim five thousand three hundred dollars ($5,300) in restitution for grand theft, and he was sentenced to two years imprisonment (with credit for time served in jail) for the burglary offense and to a consecutive term of fifteen years probation for the grand theft offense. Grand theft pursuant to section 812.014(2)(b) as charged in this case is a third degree felony for which the penalty may not exceed five years imprisonment. § 775.082(3)(d), Fla.Stat. (1979). Appellant argues, and the State agrees, it was error to impose a term of probation which exceeds the maximum sentence allowed by the criminal statute. Therefore we vacate the sentence of fifteen year probation for grand theft and remand this case to the trial court for appropriate resentenc-ing. Twining v. State, 380 So.2d 496 (Fla.2d DCA 1980); Peeples v. State, 376 So.2d 287 (Fla.5th DCA 1979). Otherwise, the judgments and sentences are affirmed.

AFFIRMED IN PART, REVERSED IN PART, AND REMANDED FOR RESEN-TENCING.

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


text:
    In re The GUARDIANSHIP OF Blanche Carolyn DAILEY, Incompetent. Ernest Ray JOHNSON, Appellant, v. Mary Helen DARNELL, Appellee.
    No. 81-82.
    District Court of Appeal of Florida, Fifth District.
    Aug. 19, 1981.

      Charles M. Holcomb, of Holcomb, Theriac & Steinberg, Merritt Island, for appellant.
    Thomas E. Thoburn, Cocoa, for appellee.
   PER CURIAM.

Appellant filed a petition seeking removal of appellee as guardian of the person and property of Blanche Dailey. A hearing on the petition was scheduled. The trial court heard summaries of the testimony the attorneys planned to offer at the hearing, but it refused to hear any evidence. The court opined that the petition failed to state a cause of action, although counsel for appel-lee never made a motion to dismiss, (oral or written), and he was prepared to try the matter on the merits. The court further stated it felt this petition had been filed to counter another matter pending before another judge involving the same parties. It then denied the petition “on the basis of the record” and the pleadings. We construe the trial court’s ruling as constituting a judgment on the pleadings.

The petition alleged that Dailey, an elderly lady who had been declared to be incompetent, was not receiving adequate care. It stated that Dailey’s bills were not being paid and she was not being given sufficient medical care. It also alleged the guardian failed to provide Dailey with needed supervision and basic necessities. This petition is sufficient to withstand a motion for judgment on the pleadings. §§ 744.377(1), 744.-361(1), Fla.Stat. (1979).

We reverse the judgment and remand for further proceedings. Based on this record and a motion made in this court by one party, which was not objected to by the other, the trial judge should seriously consider recusing himself from handling any further proceedings in this matter, upon the filing of a motion to recuse in the lower court by either party.

REVERSED AND REMANDED.

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

      . Fla.R.Civ.P. 1.140(c).


text:
    Ronnie Eugene BALLARD, Appellant, v. STATE of Florida, Appellee.
    No. 80-1488.
    District Court of Appeal of Florida, Fifth District.
    Aug. 19, 1981.
    James B. Gibson, Public Defender, and Christopher S. Quarles, Asst. Public Defender, Daytona Beach, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and James Dickson Crock, Asst. Atty. Gen., Daytona Beach, for appellee.
   COWART, Judge.

Because of Villery v. Florida Parole and Probation Commission, 396 So.2d 1107 (Fla.1981) appellant’s split sentence is vacated and this cause is remanded for resentencing as provided in Villery. See Wesley v. State, 400 So.2d 175 (Fla. 5th DCA 1981).

SENTENCE VACATED; CAUSE REMANDED FOR RESENTENCING.

COBB and SHARP, JJ., concur.


text:
    Michael Todd ROZIER, Appellant, v. STATE of Florida, Appellee.
    No. 80-1277.
    District Court of Appeal of Florida, Fifth District.
    Aug. 19, 1981.

      James B. Gibson, Public Defender, and Julianne Piggotte McLarty, Asst. Public Defender, Daytona Beach, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Edwin H. Duff, III, Asst. Atty. Gen., Day-tona Beach, for appellee.
   COWART, Judge.

Without consent of the owner, appellant entered a dwelling through the window and was apprehended hiding therein. On this single factual event he was tried on a two count information. The first count charged that in violation of section 810.02(3), Florida Statutes, appellant did enter or remain in the dwelling “with the intent to commit an offense therein, to-wit: theft.” The second count charged that in violation of the same statute he did enter or remain in said dwelling “stealthily and without the consent of [the owner].” The jury found appellant not guilty as to count 1 and guilty as to count 2. The question presented on this appeal is whether the allegations of count 2 were sufficient to allege a violation of the burglary statute, section 810.02(3), Florida Statutes (1979).

Section 810.02, Florida Statutes (1979), provides in part:

(1) “Burglary” means entering or remaining in a structure or a conveyance with the intent to commit an offense therein, unless the premises are at the time open to the public or the defendant is licensed or invited to enter or remain.

The basic elements of this statutory crime of burglary are (1) entering or remaining (2) in a structure or conveyance (3) with the intent to commit an offense therein.

The gravamen or gist of this offense is the criminal intent entertained by the wrongdoer at the time he commits the prohibited act.

This statute does not require an intent to commit a specific or particular crime. However, the courts have applied Florida’s “general to particular” rule of pleading to require the State to specify in the charging document a particular offense and have enforced that rule by holding that a charging document which fails to specify a particular offense is subject to a motion to dismiss. See Charles v. State, 36 Fla. 691, 18 So. 369 (1895); State v. Fields, 390 So.2d 128 (Fla. 4th DCA 1980); Lee v. State, 385 So.2d 1149 (Fla. 4th DCA 1980). The result of this is that while the statute does not require an intent to commit any specific or particular crime, the State is required to allege and prove an intent to commit a particular crime. Of course, the accused’s specific intent, being a state of mind is rarely, if ever, susceptible of direct proof. As a consequence the defendant can claim an entitlement to an acquittal by merely creating a reasonable doubt as to his subjective intent to commit the crime alleged; this can even be done by defense counsel suggesting in argument that the accused may have intended to commit some offense other than the one alleged. Understandably the State looks for some relief from this difficulty.

Section 810.07, Florida Statutes, enacted in 1975, provides:

Prima facie evidence of intent
In a trial on the charge of burglary, proof of the entering of such structure or conveyance at any time stealthily and without consent of the owner or occupant thereof shall be prima facie evidence of entering with intent to commit an offense. (emphasis added)

In Lee, the burglary information charged the defendant entered or remained in a dwelling “with intent to commit an offense therein contrary to Florida Statutes 810.-02(1)(3) and 810.07” and contended that the statutory references were a sufficient substitute for specifying a particular offense. The defendant attacked the sufficiency of the information by a pretrial motion to dismiss. The Fourth District Court of Appeal did not agree with the contention of the State, saying that section 810.07 had to do with proof of intent. In Fields the burglary information failed to specify a particular offense but, unlike in Lee, the defendant did not attack the information by a pretrial motion to dismiss; instead he moved for arrest of judgment after a jury verdict of guilty. The court in Fields held that while the complete omission of an essential element of an offense was fatal, an information containing an incomplete or imprecise allegation of an essential element was subject only to a timely challenge by motion to dismiss; otherwise, the objection as to the defective allegation would be waived. The court went further and said:

we hold that in alleging the crime of burglary, the state must either list the specific crime intended to be committed within the structure, or, alternatively, allege that an offense was intended to be committed therein in that the entry was gained stealthily and without consent of the owner or occupant. By either mode of pleading, the defendant would be sufficiently notified in the accusatory pleading of the crime brought by the state to which he must respond, (emphasis added)

390 So.2d at 131.

In Kane v. State, 392 So.2d 1012 (Fla. 5th DCA 1981), this court followed Fields in holding that a burglary information alleging only that the accused entered or remained in a certain dwelling with the intent to commit an offense therein (without specifying the particular offense) was defective but not fatally so and if the defect was not attacked by timely motion to dismiss it would be considered waived.

The State in this case contends that the charge in count 2 sufficiently alleged intent by alleging the statutory presumption of section 810.07. We do not agree. Section 810.07, Florida Statutes, was apparently an attempt by the legislature to help the State with its evidentiary problem in the trial of burglary cases by establishing a prima facie case as to the accused’s intent to commit an offense. This was done by legislating that proof of two other facts that are more susceptible of direct proof, that is, that the entry (1) was stealthily and (2) was without the owner’s consent, was sufficient evidence to carry the case to the jury (prima facie evidence) as proof of the accused’s intent to commit a crime in the structure. We do not now have to go so far as to agree or disagree with the dicta in Fields stating that allegations in the charging document relating to stealth and lack of consent are a sufficient substitute for allegations of a particular crime intended because the information in Fields specifically alleged an intent to commit an offense and in this case count 2 of the information does not make that allegation. We hold that the “the intent to commit an offense therein” is an essential element of this statutory offense of burglary and that section 810.07 is not sufficient to make “stealthily and without consent of the owner or occupant thereof” an allegational equivalent of that intent element.

We do note with interest that while section 810.07 attempts to make stealth and lack of consent an evidentiary equivalent of proof of an intent to commit an offense in a structure, that statute does not make those two facts prima facie evidence of intent to commit a particular crime, such as theft. As long as the “general to particular” rule is applied to the element of intent in burglary cases, requiring the State to allege and prove the accused’s intent to commit a particular crime, the statutory presumption created by section 810.07, Florida Statutes, relating as it does only to a prima facie case as to an intent to commit an offense generally, will be of little or no value to the State because it will be insufficient to carry a burden of proof as to intent to commit a particular crime. In view of the substantial authority cited above which requires the state to allege and prove the specific offense intended in a burglary case, we do not feel we can now hold otherwise. Nor can we extend the words and meaning of section 810.07 to make it applicable to allegations in the charging document as distinguished from proof at trial. The solution to this problem is either for the Florida Supreme Court to rule that the “general to particular” rule is not applicable to the intent element of statutory burglary or for the legislature to amend section 810.07, Florida Statutes, to provide that proof of stealth and lack of consent constitutes pri-ma facie evidence of the intent to commit a particular crime, such as theft.

We hold that an allegation that the accused intended to commit an offense is an essential element of burglary and that the statutory provision relating to prima facie evidence is not an allegational substitute for such element. Since count 2 of the information herein did not contain that essential element, we set aside the judgment and vacate the sentence as to the offense of burglary.

The next question is whether or not the allegations in count 2 of the information herein were sufficient to allege a trespass in a structure or conveyance as a violation of section 810.08(1), Florida Statutes (1979). We hold that the allegation in count 2 of the information “without the consent of [the owner or custodian thereof]” was a sufficient allegational equivalent of the words “without being authorized, licensed, or invited” in section 810.08, Florida Statutes (1979), and that the word “willfully” as used in section 810.08(1), Florida Statutes, refers only to a general intent and does not constitute a separate essential element of trespass under that statute as to require specific allegations different in kind than the usual allegation charging burglary. “Willfully” generally, and as used in this trespass statute, refers to a general intent and merely means that, ás in burglary, the entry or remaining be intentionally, knowingly and purposely done. In addition to the specific intent to commit an offense, burglary requires a general intent to enter or remain no different in kind from the willful act involved in the trespass statute. With these two interpretations of the statute, we find that the allegations in count 2 of the information herein are sufficient to allege a violation of section 810.08(1) of the Florida Statutes which is punishable as a second degree misdemeanor under section 810.08(2)(a). Although the jury found the accused not guilty of count 1, that count was sufficient to allege a felony of burglary under section 810.02(1), Florida Statutes arising out of the same circumstances as the misdemeanor of trespass sufficiently alleged in count 2 of the information. Section 26.012(2)(d), Florida Statutes (1979), provides that the exclusive original jurisdiction of circuit courts includes “all felonies and ... all misdemeanors arising out of the same circumstances as a felony which is also charged.” The second degree misdemeanor trespass alleged in count 2 arose out of the same circumstances as the felony which was also charged in count 1. Accordingly the circuit court did have jurisdiction and the allegations and proof were sufficient to uphold a conviction of the defendant as to the offense of trespass in a structure in violation of section 810.08(2)(a), a misdemeanor of the second degree. Therefore, the judgment of conviction of count 2 is hereby reduced to a judgment of conviction for trespass and the sentence on the felony conviction is hereby vacated. However, the record before us indicates that the time for which the accused was entitled to credit for time he spent in the county jail before sentence under section 921.161(1), Florida Statutes, alone exceeds the maximum punishment for the second degree .misdemeanor. Therefore we do not remand the cause for sentencing as to the second degree misdemeanor but hereby discharge the accused from further punishment on this trespass conviction.

The judgment of conviction below is affirmed as modified.

AFFIRMED AS MODIFIED.

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

      . In order to enhance punishment these basic elements can be augmented by allegations and proof of additional elements, such as that the defendant, in the course of committing the offense, made an assault upon some person or was armed or armed himself within such structure with explosives or a dangerous weapon (section 810.02(2)(a) and (b)) or that the structure entered was a dwelling or there was a human being in the structure or conveyance at the time the offender entered or remained in it (section 810.02(3)).

      . Vawter v. State, 63 So.2d 255 (Fla.1953); Charles v. State, 36 Fla. 691, 18 So. 369 (1895); Dowis v. State, 326 So.2d 196 (Fla. 4th DCA 1976); Cole v. State, 276 So.2d 100 (Fla. 2d DCA 1973).

      . For similar reasoning relating to the word “knowingly,” see State v. Buffett, 397 So.2d 1060 (Fla. 2d DCA 1981).

      . The allegation in count 2 was not sufficient to allege a trespass which would be a misdemean- or of the first degree under section 810.08(2)(b) because count 2 did not allege that there was a human being in the structure at the time the offender trespassed as required by that subsection.

      . We do not hold that trespass is a necessarily lesser included offense of burglary. There is some thought in some legal circles that because statutory burglary does not now require a breaking that the state should be required under the statute to affirmatively allege and prove that the accused was not licensed or invited to enter or remain. If such an element of “lack of consent” from the owner or occupant were required in burglary charges then it would probably be sufficient to make trespass a necessarily lesser included offense. Of course even now trespass can be made a permissible lesser included offense of burglary by an additional allegation that the entry or remaining was without authority, license or invitation of the owner or lessee.


text:
    Willie Clyde COVINGTON, Appellant, v. STATE of Florida, Appellee.
    No. 80-1224.
    District Court of Appeal of Florida, Fifth District.
    Aug. 19, 1981.
    James B. Gibson, Public Defender, and Thomas R. Mott, Asst. Public Defender, Daytona Beach, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Edwin H. Duff, III, Asst. Atty. Gen., Day-tona Beach, for appellee.
   PER CURIAM.

This is an appeal from a judgment and sentence pursuant to appellant’s plea of guilty. The Public Defender has filed an Anders motion and brief requesting leave to withdraw as counsel for appellant and representing to this court that no reversible error appears. On March 17, 1981, this court gave appellant thirty (30) days within which to file a brief in his own behalf. No such brief has been filed. The court has reviewed counsel’s brief and the record herein and no reversible error appears. Any question of the voluntariness of a plea should be presented to the lower court.

Appellant was convicted of second degree theft, a third degree felony, which is punishable by up to five years imprisonment. §§ 812.014(2)(b)(l) and 775.082(3)(d), Florida Statutes (1979). As he was sentenced to three years imprisonment with credit for time served, appellant was properly sentenced.

The appeal from the judgment is DISMISSED and the sentence is AFFIRMED.

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

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


author: HURLEY, Judge.

text:
    LAWYER’S TITLE INSURANCE CORPORATION, Appellant, v. CITY OF WEST PALM BEACH, Florida, a municipal corporation, Appellee.
    No. 79-941.
    District Court of Appeal of Florida, Fourth District.
    Aug. 19, 1981.

      Kenneth J. Scherer of Desantis, Cook, Meehan, Cohen, Gaskill & Silverman, North Palm Beach, for appellant.
    William P. Doney, West Palm Beach, for appellee.
   HURLEY, Judge.

Lawyer’s Title Insurance Corporation appeals from a summary judgment in favor of the City of West Palm Beach which upheld the latter’s imposition of an occupational license tax on insurance companies located in the city, and further upheld such tax on Lawyer’s Title as an “abstract company.” We agree that the municipality may properly levy the occupational license tax on insurers but, finding a factual issue as to whether Lawyer’s Title is an “abstract company,” we reverse that portion of the judgment.

Lawyer’s Title commenced this action against the City of West Palm Beach with a two count complaint. Count I alleged a class action on behalf of itself and all insurance companies which were licensed by the State of Florida and had paid an occupational license fee to the City. Count II was brought in an individual capacity and alleged that the City was wrongfully assessing an occupational license tax against Lawyer’s Title for operating an abstracting company within city limits since Lawyer’s Title was not an abstracting company and had not performed any acts constituting abstracting. Following motions for summary judgment by both parties, the trial court entered summary judgment for the City on both counts. It held that while an occupational license tax based on premiums, income, or volume of transactions may not be levied on an insurer, the City could properly levy the tax if it is not keyed into those bases. Additionally, the City’s right to tax Lawyer’s Title as an abstracting company was upheld.

Section 205.042, Florida Statutes (1979), grants municipalities the authority to levy an occupational license tax for the privilege of engaging in or managing any business, profession, or occupation within their jurisdiction. Specifically, Section 205.042 provides:

The governing body of an incorporated municipality may levy, by appropriate resolution or ordinance, an occupational license tax for the privilege of engaging in or managing any business, profession, or occupation within its jurisdiction. However, such governing body shall first give at least 15 days’ public notice between the first and last reading of such resolution or ordinance by publishing such notice in a newspaper of general circulation within its jurisdiction as defined by law. The said public notice shall contain the proposed classifications and rates applicable to the occupational license tax which is the subject thereof. Such occupational license tax may be levied on:
(1) Any person who maintains a permanent business location or branch office within said municipality, for the privilege of engaging in or managing any business within its jurisdiction.
(2) Any person who maintains a permanent business location or branch office within said municipality, for the privilege of engaging in or managing any profession or occupation within its jurisdiction.
(3) Any person who does not qualify under the provisions of subsection (1) or subsection (2) and who transacts any business or engages in any occupation or profession in interstate commerce, if such license tax is not prohibited by s. 8 of Art. I of the United States Constitution.

Pursuant to this authority, the City of West Palm Beach enacted Chapter 29 of its City Code which imposes an occupational license tax on various businesses and professions. Among these is the insurance industry which, under the City Code, is subject to an occupational license tax assessed on a per company, agency, branch, salesman and agent basis. It is this tax which forms the basis of the class action alleged in Count I of the complaint herein. Lawyer’s Title argues on appeal that this tax is an unlawful exercise of the taxing power and is specifically barred by Section 624.401(3), Florida Statutes (1979). On the contrary, we believe that appellant’s reliance on this section is misplaced and, in fact, the tax herein is supportable under other provisions of the Florida Insurance Code.

Section 624.401(3) deals with the state’s preemption of the regulation of insurers and their agents and representatives as follows:

This state hereby preempts the field of regulating insurers and their agents and representatives, and no county, city, municipality, district, school district, or political subdivision shall require of any insurer, agent, or representative regulated under this code any authorization, permit, or registration of any kind for conducting transactions lawful under the authority granted by the state under this code.

While municipalities are permitted to impose regulatory fees under Section 166.221, Florida Statutes (1979), the city concedes on appeal that a regulatory fee on insurers would not be permitted pursuant to this section in light of Section 624.401(3), since Section 166.221 specifically provides:

A municipality may levy reasonable business, professional, and occupational regulatory fees, commensurate with the cost of the regulatory activity, including consumer protection, on such classes of businesses, professions, and occupations, the regulation of which has not been preempted by the state or a county pursuant to a county charter.

(Emphasis added.)

As noted above, however, Chapter 29 of appellee’s City Code, which imposed the disputed tax, was enacted under the authority of the previously-quoted Section 205.042, dealing specifically with occupational license taxes. In this context, two other sections of the Insurance Code discussed below are more relevant.

Referring specifically to the imposition of a license tax by a municipality, Section 624.520(1), Florida Statutes (1979), provides:

This state hereby preempts the field of imposing excise, privilege, franchise, income, license, permit, registration and similar taxes and fees, measured by premiums, income, or volume of transactions, upon insurers and their agents and other representatives, and no county, city, municipality, district, school district, or other political subdivision or agency in this state shall impose, levy, charge or require the same, subject however to the provisions of subsection (2).

(Emphasis added.)

In addition, Section 624.507, Florida Statutes (1979), allows for a license tax as to insurance agents and solicitors in particular:

Municipal corporations may require a license tax of insurance agents and solicitors not to exceed 50 percent of the state license tax specified as to such agents and solicitors under this part chapter, and unless otherwise authorized by law. Such a tax may be required only by a municipal corporation within the boundaries of which is located the agent’s business office, or if no such office is required under this code, by the municipal corporation of the agent’s place of residence.

Having considered these sections together, and in the context of the Insurance Code as a whole, we find that the occupational license tax at issue herein, while fitting into the tax categories listed in Section 624.-520(1) is not keyed into “premiums, income, or volume of transactions.” As such, it is not within the purview of that section’s preemption, but rather, constitutes an exception thereto. Thus, the imposition of the occupational license tax on insurance companies within the City of West Palm Beach was within appellee’s power and, there being no factual issue to be resolved, summary judgment was proper as to Count I of the complaint.

As to the summary judgment allowing the City to tax Lawyer’s Title as an abstracting company, we believe reversal is mandated. While the City offered an affidavit of the City Clerk indicating that Lawyer’s Title had advertised in the yellow pages of the telephone book under “Ab-stracters” from 1971 to 1979, Lawyer’s Title presented a deposition of one of its agents wherein the agent .testified that Lawyer’s Title had not been in the business of abstracting since 1974 and that he had contacted the telephone company on a number of occasions regarding removal of the advertisement. Since these portions of the record reveal that an issue of material fact has clearly been raised, summary judgment on Count II was improper.

Accordingly, we affirm the summary judgment as to Count I, reverse as to Count II, and remand for further proceedings.

Affirmed in part, reversed in part, and remanded.

ANSTEAD, J., and RIVKIND, LEONARD, Associate Judge, concur.


text:
    Michael James GONNELLA, Appellant, v. STATE of Florida, Appellee.
    No. 79-2105.
    District Court of Appeal of Florida, Fourth District.
    Aug. 19, 1981.
    Sheldon Golding, Fort Lauderdale, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Ondina Felipe, Asst. Atty. Gen., West Palm Beach, for appellee.
   PER CURIAM.

The appellant seeks reversal of an order denying his motion to suppress evidence. Upon denial of his motion, the appellant entered a nolo contendere plea, reserving his right to appeal the denial of the motion to suppress. The trial court withheld adjudication of guilt and placed appellant on probation.

This case involves a warrantless search of appellant’s luggage at an airport. The original trial court judge relied upon his finding of probable cause to support his denial of the motion to-suppress; however, he did not find exigent circumstances, nor does the record support such a finding. The State, on appeal, relies solely upon the appellant’s consent to search in support of affirmance. We relinquished jurisdiction to the trial court to make findings of fact and conclusions as to whether the appellant freely and voluntarily consented to a search of his luggage. After hearing testimony, a different trial judge found that appellant had not freely and voluntarily consented to a search and certified his findings to us. Accordingly, the trial judge should have granted the motion to suppress.

The order of the trial court withholding adjudication of guilt and placing the appellant on probation is reversed and this cause is remanded for further proceedings consistent with this opinion.

REVERSED and REMANDED.

ANSTEAD, MOORE and HURLEY, JJ., concur.


author: MOORE, Judge.

text:
    Marvin NEWKIRK, Appellant, v. R. O. CROSBY and Stan Russ, Appellees.
    No. 80-56.
    District Court of Appeal of Florida, Fourth District.
    Aug. 19, 1981.
    Jacob A. Rose of Florida Rural Legal Services, Inc., West Palm Beach, for appellant.
    Alexander Myers of Christiansen, Jack-nin, & Myers, Palm Beach, for appellee, Crosby.
   MOORE, Judge.

Newkirk appeals from a final summary judgment in favor of Crosby, the owner of an apartment building in which Newkirk had rented an apartment. The summary judgment denied Newkirk’s claim for compensatory and punitive damages for an alleged assault, battery and unlawful eviction committed by Russ. Russ, who was allegedly Crosby’s lessee, leased the apartment to Newkirk. The summary judgment relieved Crosby of liability because the trial court apparently found an absence of an agency relationship between Crosby and Russ, the tortfeasor.

We find that the trial court erred in granting summary judgment due to the existence of material issues of fact as to the relationship between Crosby and Russ. We further hold that the trial court improperly denied Newkirk’s motion to compel Crosby to answer questions relating to the business relationship between Crosby and Russ.

The factual matters in Newkirk’s sworn complaint, the affidavits of both parties, and the depositions indicate a factual conflict as to whether the relationship between Crosby and Russ was one of principal-agent rather than merely lessor-lessee. These documents suggest that Russ may have been acting as a rent collector for Crosby rather than as a mere lessee. The lease between Crosby and Russ provides that Russ shall pay his rent by remitting all of the rents that he collects from tenants, except for $2.00 per unit, per week. Russ’s predecessor was a rent collector who received payments on the basis of the amount collected. Crosby pays the building’s utilities bills. While these factors do not conclusively demonstrate a principal-agent relationship, they do raise material issues of fact concerning the existence of such a relationship. In determining the absence of the relationship the trial court necessarily weighed the facts and the reasonable inferences to be drawn therefrom. This should be left to the jury. Consequently, summary judgment was improper. Herold v. Computer Components International, Inc., 252 So.2d 576 (Fla. 4th DCA 1971).

The trial court also erred by denying Newkirk’s motion to compel Crosby to answer discovery questions concerning his business relationship with Russ and his rent collection practices at other properties. This information is discoverable because it is relevant to the subject matter of the pending action and not privileged. See, Fla. R. Civ. P. 1.280; Murray Van and Storage, Inc. v. Murray, 343 So.2d 61 (Fla. 4th DCA 1977). The questions are reasonably calculated to lead to the discovery of admissible evidence as to Crosby’s relationship with Russ. The trial court, therefore, should have granted Newkirk’s motion to compel.

In view of our holding, it is unnecessary to discuss the other points raised on appeal. We reverse the summary final judgment and the order denying discovery and remand for further proceedings.

DOWNEY and ANSTEAD, JJ., concur.


text:
    Nancy H. WAGNER, Appellant/Cross-Appellee, v. William H. WAGNER, Appellee/Cross-Appellant.
    No. 80-283.
    District Court of Appeal of Florida, Fourth District.
    Aug. 19, 1981.
    Hans C. Feige and H. T. Maloney of Patterson, Maloney, Blyler & Feige, Fort Lauderdale, for appellant/cross-appellee.
    David L. Kline of Abrams, Anton, Robbins, Resnick, Schneider & Mager, Hollywood, for appellee/cross-appellant.
   PER CURIAM.

We remanded this cause to the trial court to reconsider the issue of lump sum alimony in view of the Supreme Court’s decision in Canakaris v. Canakaris, 382 So.2d 1197 (Fla. 1980). Upon' remand, the trial court amended the final judgment and granted the appellant wife lump sum alimony which, in turn, caused her to dismiss her appeal. We have further considered the issues raised on cross-appeal and upon review of the amended final judgment, we find that the trial court did not abuse its discretion and, consequently, we affirm the cause upon the authority of Canakaris v. Canakaris, supra.

ANSTEAD and HURLEY, JJ., and WARREN, LAMAR, Associate Judge, concur.


text:
    Karl J. WILKERSON and Gloria Wilkerson, Appellants, v. GULFSTREAM LAND AND DEVELOPMENT CORPORATION, Appellee.
    No. 80-978.
    District Court of Appeal of Florida, Fourth District.
    Aug. 19, 1981.
    Salvatore V. Fiore of Fiore & Bloomgar-den, P.A., Fort Lauderdale, for appellants.
    Robert M. Klein of Stephens, Lynn, Cher-nay & Klein, Miami, for appellee.
   HURLEY, Judge.

This appeal follows the entry of a summary final judgment which prevented appellants from maintaining a personal injury action against appellee. The issue presented on appeal is whether a parent corporation of a wholly owned subsidiary is immunized from third party tort liability by virtue of its subsidiary’s having paid out workmen’s compensation benefits. We think not and therefore, we reverse.

Karl J. Wilkerson sustained injuries while employed by Gulfstream Utilities Corporation, a wholly owned subsidiary of appellee, Gulfstream Land and Development Corporation. The injuries were incurred when Wilkerson fell into a hole located in certain real property owned by appellee. Following the accident, Wilkerson filed a workmen’s compensation claim against his employer Gulfstream Utilities Corporation and its workmen’s compensation carrier, and received benefits pursuant to that claim. In addition, the Wilkersons instituted this negligence suit against appellee as the owner of the premises on which the accident occurred, seeking to recover for personal injury and loss of consortium. Since its subsidiary had paid compensation benefits to Wilkerson and the two corporations shared the same insurance policy, appellee moved for summary judgment claiming immunity from an independent tort action. When summary final judgment was entered in favor of appellee, appellant took this appeal.

We acknowledge that in Goldberg v. Context Industries, Inc., 362 So.2d 974 (Fla.3d DCA 1978), cert. denied, 370 So.2d 459 (Fla.1979), our sister court found that an independent tort action against a parent corporation was barred where the plaintiff employee had collected workmen’s compensation benefits from the parent’s wholly owned subsidiary and the two corporations were jointly insured on the same compensation policy. However, we do not believe that a parent corporation must necessarily be shielded from suit by an employee of its subsidiary. Rather, we align ourselves with those jurisdictions which have dealt with this issue and have uniformly upheld the right of the subsidiary’s employee to maintain such an independent action. See, e.g., Boggs v. Blue Diamond Coal Co., 590 F.2d 655 (6th Cir.), cert. denied, 444 U.S. 836, 100 S.Ct. 71, 62 L.Ed.2d 47 (1979) (applying Kentucky law); Choate v. Landis Tool Co., 486 F.Supp. 774 (E.D.Mich.1980); O’Brien v. Grumman Corp., 475 F.Supp. 284 (S.D.N.Y.1979) (applying Georgia law); Latham v. Technar, Inc., 390 F.Supp. 1031 (E.D.Tenn.1974); Thomas v. Hycon, Inc., 244 F.Supp. 151 (D.D.C.1965) (applying Maryland Law); Mingin v. Continental Can Co., 171 N.J.Super. 148, 408 A.2d 146 (1979); Samaras v. Gatx Leasing Corp., 75 A.D.2d 890, 428 N.Y.S.2d 48 (2d Dep’t 1980); Phillips v. Stowe Mills, Inc., 5 N.C.App. 150, 167 S.E.2d 817 (1969).

The result herein is dictated by basic corporate law principles which require that the corporate fiction be recognized and the corporate veil only be pierced where the corporate structure is used fraudulently. In analyzing the parent/subsidiary problem we now face, the court in Boggs v. Blue Diamond Coal Co., supra, explained:

[A] business enterprise has a range of choice in controlling its own corporate structure. But reciprocal obligations arise as a result of the choice it makes. The owners may take advantage of the benefits of dividing the business into separate corporate parts, but principles of reciprocity require that courts also recognize the separate identities of the enterprises when sued by an injured employee.

590 F.2d at 662.

The fact that appellee and its subsidiary were covered under the same workmen’s compensation insurance policy would not alter this reasoning. O’Brien v. Grumman Corp., supra; Mingin v. Continental Can Co., supra.

Accordingly, the summary final judgment herein is reversed and the cause is remanded for proceedings consistent herewith.

Reversed and Remanded.

ANSTEAD and GLICKSTEIN, JJ., concur.


text:
    Howard F. McCLANAHAN, Appellant, v. Faye I. McCLANAHAN, Appellee.
    No. 80-1517.
    District Court of Appeal of Florida, Fourth District.
    Aug. 19, 1981.
    Robert M. W. Shalhoub and Edna L. Caruso, West Palm Beach, for appellant.
    Thomas A. Bratten, West Palm Beach, for appellee.
   PER CURIAM.

The appellant/husband appeals those portions of a final judgment which awarded appellee/wife $200 per month in permanent periodic alimony and one-half of the husband’s interest in the jointly owned marital residence as lump sum alimony. The parties had lived together for 26'A years. They had raised four children, one of whom lives with the wife. The husband pays $200 per month in child support. Both parties work for Southern Bell. Although the husband’s salary exceeds the wife’s, the disparity appears adequately compensated by the permanent periodic alimony award to the wife. Despite the broad discretion of the trial judge noted in Canakaris v. Canakaris, 382 So.2d 1197 (Fla. 1980), we conclude error was committed in awarding lump sum alimony to the wife herein. There was simply no demonstration of need on the part of the wife. The award of lump sum alimony is therefore stricken and, as modified, the judgment is affirmed.

AFFIRMED.

DOWNEY and BERANEK, JJ., and OWEN, WILLIAM C., Jr., Associate Judge, concur.


text:
    DUVAL-BIBB CO., d/b/a Orange News and Mission Insurance Co., Appellants, v. Mary PRICE, Appellee.
    No. YY-57.
    District Court of Appeal of Florida, First District.
    Aug. 19, 1981.
    Robert C. Barrett, of Akerman, Senter-fitt & Eidson, Orlando, for appellants.
    Thomas R. Mooney, of Meyers, Mooney & Adler, P. A., Orlando, for appellee.
   PER CURIAM.

For lack of notice that the issue would be heard and determined, the deputy’s finding that the employer fired appellee in violation of § 440.205, Fla.Stat. (1979), is vacated. For lack of substantial competent evidence, the deputy’s award of temporary total disability benefits for the period from July 23, 1980 to August 13, 1980 is vacated. Benefits from July 13,1980 to July 23,1980 have already been paid, so the deputy’s award of benefits during this period is also vacated. For lack of substantial competent evidence, the deputy’s award of penalties, attorney’s fees and costs is vacated.

REVERSED.

ROBERT P. SMITH, Jr., C. J., and JOA-NOS and THOMPSON, JJ., concur.


text:
    Ricky A. MITCHEM, Appellant, v. STATE of Florida, Appellee.
    No. YY-382.
    District Court of Appeal of Florida, First District.
    Aug. 19, 1981.

      Michael E. Allen, Public Defender, and Carl S. McGinnes, Asst. Public Defender, Tallahassee, for appellant.
    Jim Smith, Atty. Gen., and Miguel A. Olivella, Jr., Asst. Atty. Gen., Tallahassee, for appellee.
   PER CURIAM.

The deputy’s testimony improperly commenting on appellant’s refusal while in custody to answer questions about the offense was objected to and was the subject of a timely mistrial motion. The denial of that motion was error requiring a new trial irrespective of the weight of the other evidence of appellant’s guilt. Marshall v. State, 393 So.2d 584 (Fla. 1st DCA 1981). For the court’s guidance on retrial, we find also that the court should have charged the jury on attempted robbery as requested in this prosecution for robbery. Brown v. State, 206 So.2d 377 (Fla.1968).

REVERSED.

ROBERT P. SMITH, Jr., C. J., and JOA-NOS and THOMPSON, JJ., concur.


text:
    Earine Bernard JACKSON, Petitioner, v. Honorable R. A. GREEN, Jr., Circuit Judge, and Honorable Elzie S. Sanders, Acting Circuit Judge, In and For Bradford County, Florida, Respondents.
    No. AE-24.
    District Court of Appeal of Florida, First District.
    Aug. 19, 1981.
    V. Hulslander of O’Connell & Hulslander, Gainesville, for petitioner.
    Jim Smith, Atty. Gen., and Lawrence A. Kaden, Asst. Atty. Gen., Tallahassee, for respondents.
   PER CURIAM.

This original proceeding in prohibition results from a denial of petitioner’s motion for discharge alleging a violation of the speedy trial rule. We find that the trial court correctly denied petitioner’s motion for discharge and we deny the petition for writ of prohibition.

The issue is whether a prisoner in Florida who allegedly committed the crime of battery of a law enforcement officer before January 1, 1981 must be brought to trial within 180 days of arrest or within one year of arrest, when no demand for a speedy trial has been made. This issue arises because the Florida Supreme Court has amended the 180 day speedy trial time, without demand, to apply to every person charged with a felony including prisoners in Florida. See The Florida Bar. In Re Rules of Criminal Procedure, 389 So.2d 610 (Fla. 1980). Compare current Rule 3.191(a)(1), Fla.R.Crim.P. with former Rule 3.191(b)(1), Fla.R.Crim.P.

On October 19, 1980, while an inmate at Florida State Prison, petitioner was taken into custody at the prison for battery of a law enforcement officer. On March 18, 1981 petitioner was charged by information with the aforementioned crime. Petitioner's motion for discharge, filed May 28, 1981, was denied by Judge Green in a written order dated June 8, 1981. Petitioner then filed a petition for writ of prohibition in this Court alleging that the 1980 amendments to the Florida Rules of Criminal Procedure apply to petitioner such that the State should have brought him to trial within 180 days of arrest.

Florida rules of court have prospective effect only, unless expressly provided otherwise. See Poyntz v. Reynolds, 37 Fla. 533, 19 So. 649 (1896). In the 1980 amendments to the Florida Rules of Criminal Procedure, the Court stated that except for the rules relating to the mental competency of the defendant, “[a]ll other rules shall take effect on January 1, 1981, at 12:01 A.M., and govern all proceedings within their scope.” The Florida Bar. In Re Rules of Criminal Procedure, 389 So.2d 610 (Fla. 1980). The 1980 amendments altering the speedy trial time are not expressly retroactive. The operative event in the instant case, which began the running of the speedy trial time, was the taking of petitioner into custody. This event occurred prior to the effective date of the 1980 amendments to the speedy trial time.

We find that the 1980 amendments to the Florida Rules of Criminal Procedure altering the speedy trial time, without demand, for a Florida prisoner do not apply to the instant cause. Accordingly, our order of June 11, 1981, directing respondent to show cause why the relief requested by petitioner should not be granted, is discharged and the Writ of Prohibition is DENIED.

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


text:
    Johnny DAVIDSON, Appellant, v. STATE of Florida, Appellee.
    No. 80-1388.
    District Court of Appeal of Florida, Fourth District.
    Aug. 19, 1981.
    Richard L. Jorandby, Public Defender, and Charles D. Peters, Asst. Public Defender, West Palm Beach, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Mark Horn, Asst. Atty. Gen., West Palm Beach, for appellee.
   PER CURIAM.

The parties agree that paragraphs I, II and IV of the Order Revoking Appellant’s Probation should be stricken as there was no evidence introduced at the revocation hearing to support the conclusion that the conditions of probation designated in those paragraphs had been violated.

Accordingly, we strike paragraphs I, II and IV of the Order Revoking Appellant’s Probation, and affirm the order as to paragraph III.

AFFIRMED as MODIFIED.

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


text:
    SUNNY SOUTH AIRCRAFT SERVICE, INC., a Florida Corporation, Appellant, v. INVERSIONES, 1120 C.A., a Venezuelan Corporation, Appellee.
    No. 81-1061.
    District Court of Appeal of Florida, Fourth District.
    Aug. 19, 1981.
    Edward R. Curtis of Dolan, Fertig and Curtis, P.A., Fort Lauderdale, for appellant.
    David Hertzig of Hoffman & Hertzig, P.A., Coral Gables, for appellee.
   PER CURIAM.

ON MOTION TO DISMISS

Appellee has moved to dismiss this appeal which seeks review of an order denying appellant’s motion to vacate a default for the reason that such a non-final order is not appealable. Said motion is granted on authority of Carribbean Agencies, Inc. v. Agri-Export, Inc., 384 So.2d 281 (Fla. 4th DCA 1980). As this court did in Doctors Hospital of Hollywood, Inc. v. Hunter W. Madison and Minnie W. Madison, 404 So.2d 132 (Fla. 4th DCA 1981), we certify that this decision is in direct conflict with Pedro Realty, Inc. v. Silva, 392 So.2d 1005 (Fla. 3d DCA 1981).

LETTS, C. J., and DOWNEY and MOORE, JJ., concur.


author: COBB, Judge. DAUKSCH, Chief Judge,

text:
    Thomas Joseph HANNAH, Appellant, v. STATE of Florida, Appellee.
    No. 80-1413.
    District Court of Appeal of Florida, Fifth District.
    Aug. 19, 1981.

      Jack A. Kirschenbaum of Wolfe, Kir-schenbaum, Caruso, Mosley & Kabboord, P. A., Cocoa Beach, for appellant.
    Jim Smith, Atty. Gen., Tallahassee and C. Michael Barnette, Asst. Atty. Gen., Day-tona Beach, for appellee.
   ON MOTION FOR REHEARING

COBB, Judge.

The appellant, Thomas Joseph Hannah, was found guilty of several related drug charges by a jury verdict returned on August 27, 1980. At that time, he was remanded to custody pending receipt by the trial court of a presentence investigation report. He was neither adjudicated nor sentenced.

As of October 31,1980, the defendant still had not been adjudicated or sentenced. On that date, he filed in the office of the Clerk of the Circuit Court of Brevard County the following “Notice of Appeal:”

NOTICE IS HEREBY GIVEN that THOMAS JOSEPH HANNAH, Defendant, Appellant, appeals to the District Court of Appeal, Fifth District of Florida, the conviction entered by the jury on August 27, 1980. The Honorable Roger F. Dykes accepted the jury verdict of guilty and remanded the Defendant, Appellant to custody pending pre-sentence investigation and said Defendant, Appellant has not yet been sentenced.

It was not until November 12, 1980, that the trial court adjudicated Hannah guilty and imposed sentence.

On May 6, 1981, this court sua sponte dismissed the appeal on the basis that a jury verdict is not appealable, citing Smith v. State, 395 So.2d 575 (Fla.5th DCA 1981). The appellant has moved for rehearing, but the motion fails to address the determinative issues:

1. Is the notice sufficient to constitute a premature appeal from a judgment, as opposed to the appeal of a verdict?
2. If so, can the rule enunciated by the Florida Supreme Court in Williams v. State, 324 So.2d 74 (Fla.1975), be applied where the notice of appeal is filed prior to any oral pronouncement of judgment or any reduction to writing of the judgment?

Upon consideration of the clear wording of the notice filed on October 31, 1980, and the Williams opinion, we answer both of the above questions in the negative: the notice purports to appeal the jury verdict; in Williams the notice was directed to a judgment which had been orally pronounced but not rendered. If the Williams exception is to be extended, the innovation should come from the Florida Supreme Court. See Hoffman v. Jones, 280 So.2d 431 (Fla.1973).

Accordingly, the motion for rehearing is denied. We certify this opinion, pursuant to Rule 9.030(a)(2)(A)(v), Florida Rules of Appellate Procedure, to the Florida Supreme Court as passing upon a question of great public importance: can a notice of appeal filed subsequent to verdict but prior to any oral pronouncement of judgment preserve an appeal?

DENIED.

SHARP, J., concurs.

DAUKSCH, C. J., dissents with opinion.

DAUKSCH, Chief Judge,

dissenting:

I respectfully dissent. In my opinion the Williams v. State, 324 So.2d 74 (Fla. 1975), case should be extended to include a case such as this where appellant’s counsel made a mistake by filing the notice of appeal too early. In this type of ease we should rule the notice of appeal laid in limbo, just like in Williams, until the judgment was rendered, since we can assume one would be rendered.

This is not to say the rule would extend any further back; that is, one cannot file a notice of appeal before the verdict, which almost inevitably results in either an ap-pealable judgment or an appealable order of probation. It is so rare as to be nearly never that a trial judge enters a judgment of not guilty on a verdict of guilty so that any inconvenience which may result from a notice of appeal being improvidently, as opposed to untimely, filed is almost nil.

By the way, it is clear why the notice of appeal was filed early because the appellant was ordered to jail after the verdict and he wanted out. He could only get out by posting a bond on appeal and he could not do that until he filed his notice of appeal. Of course the judge was required to release him on his trial bail as the case of Andress v. Coleman, 320 So.2d 451 (Fla. 4th DCA), cert. dismissed 320 So.2d 393 (1975), dictates but evidently counsel and the judge were unaware of that rule. Until adjudication an accused is entitled to remain free on his bail, assuming he does not violate a proper bail condition. Andress.

Although I am pleased the majority has certified the question to the Supreme Court in order to allow a review of what I consider a ruling inconsistent with the spirit of the Williams decision I also do not think the majority’s ruling would violate the warning so strongly made in Hoffman v. Jones, 280 So.2d 431 (Fla. 1973), regarding appellate courts invading the function of the Supreme Court. The decision in this case merely interprets and refuses to extend the Williams ruling. That is a lot different than deciding contributory negligence is no longer a lawful defense in Florida in face of Supreme Court rulings to the opposite. I suggest it is one of our basic functions to interpret, and by that extend in proper situtations, cases decided by our Supreme Court. To certify the question in this case is to transfer our duty in this regard.


author: RYDER, Judge.

text:
    Calvin MILEY and Rosalie Miley, his wife, Appellants, v. Thelma MILEY, Appellee.
    No. 80-2161.
    District Court of Appeal of Florida, Second District.
    Aug. 21, 1981.
    Eric S. Ruff of Trinkle & Redman, P.A., Plant City, for appellants.
    Edward S. Campbell, III, of LaBarbera & Campbell, Tampa, for appellee.
   RYDER, Judge.

Calvin and Rosalie Miley appeal the summary judgment entered on Thelma Miley’s complaint for specific performance of a contract to sell real estate. We hold that the trial court erred in dismissing appellants’ counterclaim for reformation and we reverse.

Appellee’s complaint alleged an agreement for deed whereby appellants agreed to convey the property to appellee and Larry Miley. Appellee agreed to pay off a mortgage on the property. Appellee complied, and appellants refused to convey it. Appellants’ amended counterclaim alleged that the agreement required an additional consideration of $1,000.00, an easement for access to a well on the property, and a right to repurchase the property should appellee elect to sell. The counterclaim noted that appellants permitted appellee and Larry Miley to occupy the property without payment of the $1,000.00 because Larry and Calvin Miley are brothers. Appellants alleged that two years later, they had a realtor draw up the agreement for deed. The written agreement omitted the terms outlined in the counterclaim through a mutual mistake or scrivener's error. The counterclaim requested reformation of the written contract to the terms stated.

Appellee moved to dismiss the counterclaim, arguing that the additional consideration was barred by the statute of frauds, section 725.01, Florida Statutes (1979). Ap-pellee alleged that the oral promise to create an easement was similarly barred under Katcher v. Sans Souci Co., 200 So.2d 826 (Fla.3d DCA 1967). Appellee further alleged that the court could not consider parol evidence without clear evidence of mutual mistake or fraud. The court below granted the motion to dismiss the counterclaim, and appellants, although not agreeing to the merits, stipulated to summary judgment on the remaining issues.

We hold that the grounds asserted were inadequate to require dismissal of the counterclaim. The statute of frauds is not a bar to reformation of a land contract. Genarro v. Leeper, 313 So.2d 70 (Fla.2d DCA 1970). Katcher v. Sans Souci Co., supra, is not to the contrary, as it dealt with an attempt to place an easement on land without an underlying written memorandum to reform. We also do not think the parol evidence rule has application where mutual mistake is alleged. Otherwise, reformation would not be an available remedy under any circumstance. See Genarro v. Leeper, supra.

Below, appellants pled in their counterclaim all the necessary elements for reformation of the agreement for deed. See Jacobs v. Parodi, 50 Fla. 541, 39 So. 833 (1905); Genarro v. Leeper, supra.

The order dismissing the counterclaim is REVERSED and the case REMANDED for further proceedings.

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


text:
    Jerold MILLIGAN, Appellant, v. STATE of Florida, Appellee.
    No. UU-204.
    District Court of Appeal of Florida, First District.
    Aug. 21, 1981.
    Michael E. Allen, Public Defender, and Carl S. McGinnes, Asst. Public Defender, for appellant.
    Jim Smith, Atty. Gen., and Miguel Olivel-la, Jr., Asst. Atty. Gen., for appellee.
   PER CURIAM.

Jurisdiction of this cause was temporarily relinquished to the lower court to clarify an apparent scrivener’s error appearing in the record transcription of jury instructions given below. This matter has now been clarified by affidavit of the official court reporter, and the judgment below is AFFIRMED.

McCORD, BOOTH and SHIVERS, JJ., concur.


author: THOMPSON, Judge.

text:
    Billy Jerold MOSLEY, Appellant, v. STATE of Florida, Appellee.
    No. WW-34.
    District Court of Appeal of Florida, First District.
    Aug. 21, 1981.
    Tyrie A. Boyer of Boyer, Tanzler, Blackburn & Boyer, Jacksonville, for appellant.
    Carolyn M. SnurkoWski, Asst. Atty. Gen., Tallahassee, for appellee.
   THOMPSON, Judge.

Mosley appeals his conviction for the sale or delivery of cannabis, possession of a firearm by a convicted felon, and attempted second degree murder. He contends in part that the trail court erred by refusing to give a requested jury instruction regarding his right to remain silent. We agree and reverse.

Mosley was tried with two co-defendants in a consolidated trial. None of thé defendants testified at trial. Mosley’s attorney requested that the court instruct the jury that it was not to draw any adverse inferences from Mosley’s exercise of his right to remain silent. The attorneys for the co-defendants requested that the court not give such an instruction regarding their clients’ exercise of the same right. The court then refused to give the jury instruction requested by Mosley.

The United States Supreme Court, in Carter v. Kentucky, - U.S. -; 101 S.Ct. 1112, 1119-20, 67 L.Ed.2d 241 (1981), eliminated all doubt, if any existed, that the failure to give a requested instruction on a defendant’s right to remain silent requires reversal. The Court stated that:

The principles enunciated in our cases construing this privilege, against both statutory and constitutional backdrops, lead unmistakably to the conclusion that the Fifth Amendment requires that a criminal trial judge must give a “no adverse inference” jury instruction when requested by a defendant to do so.
In Bruno, the Court declared that the failure to instruct as requested was not a mere “technical error ... which do[es] not affect .. . substantial rights.... ” It stated that the “right of an accused to insist on “the privilege to remain silent is [o]f a very different order of importance ...” from the mere etiquette of trials and . . . the formalities and minutiae of procedure.” 308 U.S. [287], at 293-294, 60 S.Ct. [198], at 200 [84 L.Ed. 451]. Thus, while the Bruno Court relied on the authority of a federal statute, it is plain that its opinion was influenced by the absolute constitutional guarantee against compulsory self-incrimination.
A trial judge has a powerful tool at his disposal to protect the constitutional privilege — the jury instruction — and he has an affirmative constitutional obligation to use that tool when a defendant seeks its employment. No judge can prevent jurors from speculating about why a defendant stands mute in the face of a criminal accusation, but a judge can, and must, if requested to do so, use the unique power of the jury instruction to reduce that speculation to a minimum, [emphasis supplied; footnotes omitted]

In this case, Mosley’s requested jury instruction should have been given, even though his co-defendants requested that such an instruction not be given. It is not reversible error to give the instruction over a defendant’s objection, but it is reversible error to refuse to give the instruction when requested. As stated in Carter:

The significance of a cautionary instruction was forcefully acknowledged in Lakeside, where the Court found no constitutional error even when a no-inference instruction was given over a defendant’s objection. The salutary purpose of the instruction, “to remove from the jury’s deliberations any influence of unspoken adverse inferences,” was deemed so important that it there outweighed the defendant’s own preferred tactics.

101 S.Ct. at 1119-20 (emphasis supplied; footnote omitted).

The trial court erred by not giving the requested jury instruction, and since this error requires reversal and a new trial, we need not consider the remaining points on appeal.

ROBERT P. SMITH, Jr., C. J., and JOA-NOS, J., concur.