author: NESBITT, Judge.

text:
    STATE of Florida, DEPARTMENT OF HEALTH AND REHABILITATIVE SERVICES, Appellant, v. Patti HALL, Appellee.
    No. 81-31.
    District Court of Appeal of Florida, Third District.
    Feb. 2, 1982.

      Leonard Helfand, Miami, for appellant.
    Steven Lubow, Miami, for appellee.
    Before HENDRY, NESBITT and DANIEL S. PEARSON, JJ.
   NESBITT, Judge.

The Department of Health and Rehabilitative Services (HRS) appeals the award of attorney’s fees entered against it and in favor of the appellee, Patti Hall, by the Career Service Commission (Commission). We affirm.

The question presented to this court is whether the Commission may award attorney’s fees to a career service employee when her employer voids an appealed disciplinary action after the Commission has accepted the appeal, but before the date set for hearing the matter. The facts are, for the most part, undisputed.

Ms. Hall was employed by HRS as an administrative assistant at the Sunland Training Center in Miami. HRS suspended her from her position for a period of three days effective December 3,1979. Ms. Hall retained counsel who timely perfected an appeal to the Commission, as authorized by Section 110.309, Florida Statutes (1979). On December 28, 1979, the Commission accepted the grievance and set it for hearing on May 5, 1980. On April 21, 1980, Ms. Hall’s attorney submitted a witness list which, under the Commission’s rules, triggers the issuance of subpoenas which compel the attendance of prospective hearing witnesses. Just one week later, and only a week before the scheduled hearing date, counsel for HRS advised Ms. Hall’s attorney and the Commission that the suspension had been voided and that Ms. Hall had been reinstated with full back pay. HRS confirmed the attorney’s advice on May 6,1980.

In the meantime, on May 5, 1980, Ms. Hall’s attorney appeared before the Commission and requested that it retain jurisdiction to determine and award attorney’s fees to Ms. Hall. The authority and propriety of the Commission to do so was then litigated before the Commission on petition filed by HRS and Ms. Hall’s response thereto. The Commission’s order denying HRS’ petition had the effect of construing Section 110.309(5), Florida Statutes (1979) and Florida Administrative Code Rule 22M-2.il as empowering the Commission to retain jurisdiction over the proceeding in order to determine and award attorney’s fees. After an evidentiary hearing, the Commission entered an order denying a motion by HRS to dismiss for mootness and granting attorney’s fees on behalf of Ms. Hall; which order HRS appeals.

Section 110.309(5), supra, authorizes the Commission to award “reasonable attorney’s fees, witness fees, and other out of pocket expenses incurred during the prosecution of an appeal against an agency in which the commission sustains the employee.” HRS argues that this provision requires some form of “on the merits” determination by the Commission before attorney’s fees may be awarded. This argument must fall. HRS cannot withdraw its disciplinary action virtually on the eve of the appeal hearing, obviating a decision on the merits, and then be heard to complain that the lack of such a decision renders an award of attorney’s fees improper.

Rule 22M-2.il promulgated by the Commission provides that the Commission may award attorney’s fees and costs “incurred during an appeal in which the employee prevails.” This construction harmonizes with other statutory provisions authorizing the award of attorney’s fees. Under these statutes, attorney’s fees may be awarded even where a party has taken a voluntary dismissal. Dolphin Towers Condominium Association, Inc. v. Del Bene, 388 So.2d 1268 (Fla.2d DCA 1980) [construing Section 718.303(1), Florida Statutes (1979) ]; MacBain v. Bowling, 374 So.2d 75 (Fla.3d DCA 1979) [construing Section 713.29, Florida Statutes (1975)]; Gordon v. Warren Heating & Air Conditioning, Inc., 340 So.2d 1234 (Fla.4th DCA 1976) [construing Section 57.105, Florida Statutes (1975) ]. Therefore, a merits determination is not a prerequisite to an award of attorney’s fees where the statute provides that they will inure to the party who prevails.

The use of the word “prevails” in Rule 22M-2.il is entitled to great weight. The contemporaneous construction placed upon the statute by officials charged with the duty of enforcing it should not be disregarded or overturned by the courts except for the most cogent reasons and unless clearly erroneous. United States Gypsum Company v. Green, 110 So.2d 409 (Fla.1959); Miami Beach First National Bank v. Dunn, 85 So.2d 556 (Fla.1956); ABC Liquors, Inc. v. Department of Business Regulation, Division of Alcoholic Beverages and Tobacco, 397 So.2d 696 (Fla.1st DCA 1981); State Farm Mutual Automobile Insurance Company v. Kilbreath, 362 So.2d 474 (Fla.4th DCA 1978).

The Commission’s construction of its own rule is not clearly erroneous. The purpose and legislative intent of allowing aggrieved employees attorney’s fees and other costs under Section 110.309(5), supra, is to place them on parity with their agency-employer and render the employees financially whole when they vindicate their rights before the Commission.

In the case at bench, HRS voluntarily and unilaterally annulled all disciplinary action taken against Ms. Hall, thus granting her all the relief she could have obtained before the Commission, except, of course, the award of attorney’s fees and costs. Since HRS could not unilaterally dismiss the appeal that Ms. Hall had taken against it, the Commission properly maintained jurisdiction over the appeal for purposes of determining the award. Ms. Hall prevailed in her appeal to the Commission and was entitled to attorney’s fees under Section 110.-309(5), supra, and Rule 22M-2.il.

Affirmed.

      . Thus arises the only disputed fact, one not relevant to our inquiry. Appellee maintained in the proceedings below, and in its appellate brief, that the suspension was for a period of five days. On the other hand, HRS referred below to a three-day suspension, as did the Commission in its order granting attorney’s fees.

      . Subsequently, HRS- agreed to purge Ms. Hall’s employment file of all reference to the suspension.

      . Board of Regents v. Coffey, 378 So.2d 52 (Fla. 1st DCA 1979), relied upon by HRS, is readily distinguishable from the present controversy. In that case, Coffey was fired by the Board of Regents for stealing. On appeal, the Commission found him not guilty of theft but nonetheless guilty of violating the university’s regulations, for which his dismissal was reduced to a six-month suspension without pay. On those facts, our sister court held that the Commission had not sustained Coffey’s position. Consequently, he was not entitled to attorney’s fees under Section 110.309(5).

      . The amount of the award is not challenged here.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    BETH S., by her next friends and attorneys, Terry DeMeo and Rena Wisotsky, individually and on behalf of all others similarly situated, Appellants, v. GRANT ASSOCIATES, INC., a Florida corporation, d/b/a Grant Center Hospital and Treatment Center and Lee L. Haber, as administrator of Grant Center Hospital and Treatment Center, Appellees.
    No. 81-163.
    District Court of Appeal of Florida, Third District.
    Feb. 2, 1982.
    Rena Wisotsky and Maria K. Masinter, Legal Services of Greater Miami, Miami, for appellants.
    Joe N. Unger, Miami, Pomeroy, Betts & Miller, Miami, for appellees.
    Before HENDRY, NESBITT and FERGUSON, JJ.
   PER CURIAM.

Affirmed. Syna v. Shell Oil Company, 241 So.2d 458 (Fla.3d DCA 1970), cert. denied, 245 So.2d 871 (Fla.1971).


text:
    Austin CARVAJAL, as Personal Representative of the Estate of Rodolfo Carvajal, a minor, deceased, Appellant, v. Cleofe MURGUIA and Aido Murguia, Appellees.
    No. 81-285.
    District Court of Appeal of Florida, Third District.
    Feb. 2, 1982.
    Joe N. Unger, Bernard P. Goldfarb and Associates, Miami, for appellant.
    Morales, Rudolph & Hevia and Nestor Morales, Miami, for appellees.
    Before NESBITT and JORGENSON, JJ., and PEARSON, TILLMAN (Ret.), Associate Judge.
   PER CURIAM.

Affirmed. Groh v. Hasencamp, 407 So.2d 949 (Fla.3d DCA 1981).


text:
    Juan E. ACOSTA, Appellant, v. Carmen DeLara ACOSTA, Appellee.
    No. 81-292.
    District Court of Appeal of Florida, Third District.
    Feb. 2, 1982.

      Cummins & Wanshel and Laurence A. Wanshel, Miami, for appellant.
    Sibley, Giblin, Levenson & Glaser and Allen J. Smith, Miami Beach, for appellee.
    Before HENDRY, NESBITT and FERGUSON, JJ.
   PER CURIAM.

That portion of the trial court’s order providing for appellant’s automatic incarceration upon his failure to make future alimony and child support payments is reversed. Before the court may hold appellant in contempt for failure to comply with financial provisions of the final judgment of dissolution, the court must determine either that appellant has the ability to comply with the order and wilfully refuses to do so, or that he previously had the ability to comply but divested himself of that ability either negligently or intentionally in order to frustrate the intended purpose of the order. Faircloth v. Faircloth, 339 So.2d 650 (Fla.1976). See also Hammond v. Sandstrom, 376 So.2d 466 (Fla. 3d DCA 1979), and cases cited; Wright v. Wright, 331 So.2d 395 (Fla. 4th DCA 1976).

A notice of compliance having been filed with this court indicating that the arrearag-es cited in the order on motion for contempt have been paid, the remaining provisions of the trial court’s order are moot. We therefore decline to rule on them.

Affirmed in part; reversed in part.


author: BASKIN, Judge.

text:
    Larry McMILLIAN, Appellant, v. The STATE of Florida, Appellee.
    No. 81-363.
    District Court of Appeal of Florida, Third District.
    Feb. 2, 1982.

      Bennett H. Brummer, Public Defender and Warren S. Schwartz and Elliot H. Scherker, Asst. Public Defenders, for appellant.
    Jim Smith, Atty. Gen. and Anthony C. Musto and Paul Mendelson, Asst. Attys. Gen., for appellee.
    Before BASKIN, DANIEL S. PEARSON and JORGENSON, JJ.
   BASKIN, Judge.

In this appeal, we are asked to determine whether a prosecutor’s comment to the jury during closing argument constituted prejudicial error requiring reversal. We hold that the court’s denial of defendant’s Motion for Mistrial following the state’s comment, “Ladies and gentlemen, after hearing the facts, if you want to let Larry McMilli-an walk out of here, if you want to let this kind of horrible crime go on in Dade County, Florida — ”, cannot be deemed harmless error. We reverse.

Mary Diack was seated in her automobile when she was approached by a black man in dark clothing who askedN whether she had any jumper cables. When she responded that she did not, he asked her for a quarter to make a telephone call. As she looked for a quarter, the man put his towel-wrapped hand through the automobile window and demanded money. When Ms. Diack tried to roll up the window, the man removed her keys from the ignition and took her watch and $110. He then fled in a green Mustang.

While police were investigating the incident at the scene, a green Mustang passed by. The police chased the car, but when they reached it, no one was inside. Sometime later, the police, assisted by a dog, found defendant McMillian. Msl Diack was allowed to view defendant McMillian, who stood handcuffed where he had been detained by police. Ms. Diack announced: “That’s him, but he’s changed his clothes.” She indicated that her assailant had worn dark pants; McMillian was wearing beige pants.

When defendant McMillian was arrested, he had $73 in currency, $6.99 in change, Ms. Diack’s watch, and causeway tokens similar to those taken from her. He testified that Willie Wright had borrowed his car to get some beer and when he returned, Willie gave McMillian the victim’s watch and told him to leave the area because the police were looking for his car. On his way home, defendant drove past the place where the robbery had occurred; his automobile ran out of gas, and he was later arrested. The jury returned a verdict finding defendant guilty of robbery. He was sentenced to serve ten years in the state penitentiary. This appeal ensued.

During appellate argument the state conceded that the prosecutor’s comment was improper. Whether the comment constituted harmful error must be determined by consideration of its effect when viewed in context with other circumstances appearing in the record. Darden v. State, 329 So.2d 287 (Fla.1976), cert. dismissed, 430 U.S. 704, 97 S.Ct. 1671, 51 L.Ed.2d 751 (1977). In Pait v. State, 112 So.2d 380 (Fla.1959), the Supreme Court of Florida announced the standard for reversal predicated upon improper argument, stating:

[W]hen an improper remark to the jury can be said to be so prejudicial to the rights of an accused that neither rebuke nor retraction could eradicate its evil influence, then it may be considered as grounds for reversal ... even in the presence of a rebuke by the trial judge.

Id. at 385. If, upon objection and timely motion for mistrial, an appellate court is not satisfied beyond a reasonable doubt that the error did not contribute to the conviction, reversal is appropriate. Chapman v. California, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967); Glantz v. State, 343 So.2d 88 (Fla. 3d DCA 1977).

Our review of the record discloses no support for the state’s comment that McMillian’s release would foster this type of crime in Dade County. Furthermore, the evidence against defendant McMillian is far from overwhelming. Ms. Diack testified that when she first identified the defendant, he was the only black male present, was handcuffed and in police custody. Although she indicated that he was the man that had robbed her, she stated that he had changed his clothing. When asked, “So you had a fairly good idea that the police had caught the suspect, yes or no?”, she replied, “Well, if that’s the man who was driving the car, yes.” The vulnerable nature of her identification, when considered along with the fact that when arrested defendant possessed less money than the amount taken from Ms. Diack, increases the likelihood that defendant’s conviction was obtained not solely from proof presented by the state, but with the reinforcement of its prejudicial comment to the jury. The court’s instruction to the jury to disregard the remark could not erase the error, and deprived defendant of his constitutional right to a fair trial.

For these reasons, we reverse the conviction and remand for a new trial.


text:
    Robert GINE, Sr., as the father and natural guardian of Robert Gine, Jr., a minor, Appellant, v. Jerry HOBBS, American Contractors Corporation, and Royal Globe Insurance Company, Appellees.
    No. 81-459.
    District Court of Appeal of Florida, Third District.
    Feb. 2, 1982.
    Mark J. Feldman, Miami, for appellant.
    Stephens, Lynn, Chernay & Klein and Robert M. Klein, Miami, for appellees.
    Before HUBBART, C. J., and BARK-DULL and BASKIN, JJ.
   PER CURIAM.

Affirmed. Preger v. Gomory, 55 So.2d 541 (Fla.1951); Evans v. Southern Holding Corp., 391 So.2d 231 (Fla. 3d DCA 1980), review denied, 399 So.2d 1142 (Fla.1981); Pope v. Cruise Boat Co., 380 So.2d 1151 (Fla. 3d DCA 1980); Holliman v. Southern Bell Telephone & Telegraph Co., 349 So.2d 751 (Fla. 3d DCA 1977); Shephard v. Azzarelli Construction Co., 294 So.2d 667 (Fla. 2d DCA 1974).


text:
    Justo MAQUEIRA, individually, and Osvaldo Santiago, individually and d/b/a Queen Sandal, Appellants, v. Jack ALMAS, Appellee.
    No. 81-648.
    District Court of Appeal of Florida, Third District.
    Feb. 2, 1982.

      Edward B. Johnson, Jr., Key West, for appellants.
    Barry J. Clyman, Miami, for appellee.
    Before HENDRY, NESBITT and FERGUSON, JJ.
   PER CURIAM.

Reversed. Striking of pleadings and entry of default judgment and final judgment is too severe a sanction for failure to file a pre-trial catalogue in a non-jury trial where there is no further showing that failure by a Key West attorney to comply with the standard pre-trial order was willful or with flagrant disregard for court’s authority. See, e.g., Catogas v. Sapp, 397 So.2d 1182 (Fla. 3d DCA 1981); Beaver Crane Service, Inc., v. National Surety Corp., 373 So.2d 88 (Fla. 3d DCA 1979); cf. Watson v. Peskoe, 407 So.2d 954, (Fla. 3d DCA 1981).


text:
    The STATE of Florida, Appellant, v. Bernard BONNER, Appellee.
    No. 81-686.
    District Court of Appeal of Florida, Third District.
    Feb. 2, 1982.
    Jim Smith, Atty. Gen. and Paul Mendel-son, Asst. Atty. Gen., for appellant.
    Bennett H. Brummer, Public Defender and Howard K. Blumberg, Asst. Public Defender, for appellee.
    Before HUBBART, C. J., and BARK-DULL and BASKIN, JJ.
   PER CURIAM.

Affirmed. Roberts v. State, 390 So.2d 769, 770 (Fla. 3d DCA 1980).


text:
    The STATE of Florida, Appellant, v. Rogelio VELOSO, Appellee.
    No. 81-825.
    District Court of Appeal of Florida, Third District.
    Feb. 2, 1982.
    Jim Smith, Atty. Gen. and Calianne P. Lantz, Asst. Atty. Gen., for appellant.
    Weiner, Robbins, Tunkey & Ross and Geoffrey C. Fleck, Miami, for appellee.
    Before HUBBART, C. J., and BARK-DULL and BASKIN, JJ.
   PER CURIAM.

The order granting the motion to dismiss the information in the trial court is reversed upon the reasoning found in the recent Supreme Court opinion of Ensor v. State, 403 So.2d 349 (Fla.1981). The order granting the motion to suppress is also reversed, in accordance with the stipulation made in the trial court.

Reversed and remanded for further proceedings.

      . It is noted that this decision was rendered subsequent to the principal order under review in the case sub judice.


author: DANIEL S. PEARSON, Judge.

text:
    Mary Irene LANEY, Appellant, v. James Milton ROBERTS and Arthur S. Peacock, Jr., Co-Personal Representatives of the Estate of Mary Lou Phillips Merickel, Appellees.
    No. 81-895.
    District Court of Appeal of Florida, Third District.
    Feb. 2, 1982.
    Quinton, Lummus, Dunwody & Adams and James D. Adams, Tampa, for appellant.
    Brumer, Cohen, Logan & Kandell and Kenneth R. Duboff, Miami, Richard A. Cri-sonino, Orlando, for appellees.
    Before SCHWARTZ, BASKIN and DANIEL S. PEARSON, JJ.
   DANIEL S. PEARSON, Judge.

Mary Irene Laney (nee Mary Irene Phillips, and called Irene) was born in 1928. She was the third child of six children of Ira and Rebecca Phillips. In 1932, when Irene was four years old, the Phillipses were financially devastated by the depression and sent their children to different relatives who were able to provide for the children. Irene was sent to live with her aunt and uncle, Mary and Jessie Merickel. At that time, the Phillipses and Merickels entered into an oral agreement under which the Merickels would adopt Irene. Irene’s natural mother and the only surviving party to the agreement testified:

“Q. How long did you and Mr. Phillips care for her?
“A. Until she was four years old.
“Q. What happened at that time?
“A. Due to the depression, the Merick- . els, Mary and Jessie came to our house and wanted to adopt Irene.
“Q. Did you agree to that?
“A. Yes.
“Q. Did Mr. Phillips agree to that?
“A. Yes.
“Q. Why did you agree to that?
“A. Due to the depression, and I had four children, and it was hard to live out there, we thought that it was the right thing to do for her sake.
“Q. Did you have an agreement with Mr. and Mrs. Merickel at that time?
“A. Yes, we did.
“Q. What was your agreement with them?
“A. To adopt her and raise her as their own daughter, to the best of their ability, educate her.
“Q. Was this agreement a written agreement or an oral agreement?
“A. Oral.”

From that time forward, until Irene’s marriage in 1946, Irene resided continually with the Merickels, and the Merickels raised and provided for Irene. Irene’s natural parents did not provide for Irene in any way after she began living with the Merick-els. Indeed, the next communication between Irene and her natural parents was in 1948 when Irene was twenty, had been married two years, and had already given birth to a child. The Phillipses had known nothing of these events.

During her years with the Merickels, at school and in the community, Irene used the name Irene Merickel. Her childhood friends knew that Irene resided with the Merickels, referred to them as “mother and dad,” was a loving daughter to the Merick-els, and, in the community at large, the Merickels were considered to be Irene’s parents. When Irene was married, the wedding invitation announced the marriage of the Merickels’ “daughter Mary Irene.”

Jessie Merickel died intestate in early 1979. Mary Lou Merickel survived her husband by several months and died intestate later that same year. Irene brought an action against Roberts and Peacock, the co-personal representatives of Mrs. Merickel’s estate. Her action was based on the widely recognized theory of virtual adoption. Annot., 97 A.L.R.3d 347 (1980). Such an action seeks the specific performance of an agreement to adopt after the death, intestate, of the last surviving putative foster parent, when, paradoxically, the agreement can no longer be specifically performed. But what can be enforced by such an action is the establishment of filiation where the child can be shown to have been virtually adopted. Sheffield v. Barry, 153 Fla. 144, 14 So.2d 417 (1943). The action is:

“. . . invoked to avoid an unfair result from the application of intestacy statutes. Its underlying theories are drawn from the realm of contract law and the relevant elements include some showing of an agreement between the natural and adoptive parents, performance by the natural parents of the child in giving up custody, performance by the child by living in the home of the adoptive parents, partial performance by the foster parents in taking the child into the home and treating her as their child, and, finally, the intestacy of the foster parent.” Habecker v. Young, 474 F.2d 1229, 1230 (5th Cir. 1973) (applying Florida law).

And see Roberts v. Caughell, 65 So.2d 547 (Fla.1953); Sheffield v. Barry, supra. The trial court entered judgment in favor of the defendants. Irene Laney appeals, and we reverse.

In the present case, every element of the action — the agreement to adopt; the surrender of custody by Irene’s natural parents; the performance by Irene in living throughout her childhood in the home of the Merickels; the partial performance by the Merickels in taking Irene into the home and treating her as their child; and the intestacy of Mrs. Merickel — was clearly and convincingly established by Irene. The defendants’ argument that this overwhelming evidence is eroded by a single instance when Irene was legally required (ironically, because not formally adopted) to sign her marriage application in the name given her at birth is ludicrous. Such paltry evidence is legally insufficient to overcome her claim to virtual adoption. See In re Estate of Lamfrom, 90 Ariz. 363, 368 P.2d 318 (1962). And, even if, arguendo, the relationship between Irene and the Merickels was distant — even non-existent — after 1963 when Irene was thirty-five, such a fact does not serve to defeat Irene’s claim, long since vested by virtue of the actions of the Mer-ickels and Irene during Irene’s childhood. The performance required by the child is satisfied by living in the home of the adoptive parents, not by being an ideal child forever, or even during childhood. Lastly, despite the defendants’ contrary suggestions, there is absolutely no evidentiary value in the fact that Irene knew she was not formally adopted (which fact, by definition, is the gist of this lawsuit) or was unaware of the agreement (to which she was not a party) between her natural parents and the Merickels until Mrs. Merickel died.

Accordingly, we reverse the judgment below with directions to enter judgment for the plaintiff.

Reversed and remanded, with directions.

      . This theory, sometimes referred to as “equitable adoption” or “adoption by estoppel,” while authorizing a claim for an intestate share of the adoptive parent’s estate, has been held not to authorize a claim by a virtually adopted child under the Florida Wrongful Death Act. Grant v. Sedco Corporation, 364 So.2d 774 (Fla.2d DCA 1978).

      . It is no impediment to the action that the agreement to adopt be oral, since if, arguendo, such an agreement is within the statute of frauds, the very proof required to establish entitlement to relief, performance by the child and partial performance (that is, all the indicia of adoption without formal adoption) by the “adoptive” parents, would take the agreement out of the statute. Roberts v. Caughell, 65 So.2d 547 (Fla.1953).

      . The plaintiff need only prove the elements of virtual adoption by a preponderance of the evidence. Roberts v. Caughell, supra; Moran v. Adler, 570 S.W.2d 883 (Tex.1978). Contra, In re Estate of Lamfrom, 90 Ariz. 363, 368 P.2d 318 (1962) (burden to prove by clear and convincing evidence).


text:
    Robert MASTICK, Appellant, v. The STATE of Florida, Appellee.
    No. 81-1095.
    District Court of Appeal of Florida, Third District.
    Feb. 2, 1982.

      Bennett H. Brummer, Public Defender and Beth C. Weitzner, Asst. Public Defender, for appellant.
    Jim Smith, Atty. Gen. and Alan T. Lip-son, Asst. Atty. Gen., for appellee.
    Before HENDRY, NESBITT and FERGUSON, JJ.
   PER CURIAM.

Where neither the probation order nor transcript of plea proceeding evidenced that, as a condition of probation defendant was to report to the Probation Intake office after completion of a six-month jail term, it was error to find him in violation of probation three (3) years later for failure to report and to impose an additional six-month period of incarceration. An unmarked condition on a standard probation form is not, explicitly or implicitly, part of the agreement between the parties. Croteau v. State, 334 So.2d 577 (Fla.1976). A probation order must sufficiently instruct the probationer as to what he must do or refrain from doing while on probation. Gardner v. State, 365 So.2d 1053 (Fla. 4th DCA 1978).

Reversed.


text:
    Joseph James DAVERSA, Appellant, v. Amelia Fry DAVERSA, Appellee.
    No. 81-1356.
    District Court of Appeal of Florida, Third District.
    Feb. 2, 1982.
    Hall & Hauser and Richard F. O’Brien, III, Miami, for appellant.
    K. Neil Glassford, South Miami, for ap-pellee.
    Before HENDRY, NESBITT and FERGUSON, JJ.
   PER CURIAM.

The single issue on this appeal is whether the trial court abused its discretion in granting a discovery motion.

By Separation and Property Settlement Agreement made between the parties in March, 1975 appellant obligated himself to pay as alimony “$300.00 per month or an amount equal to 15.5% of [his] gross income from all sources ... said amount to be adjusted annually....” He agreed to pay an equal amount on the same terms for child support. Appellant paid $600.00 for child support and alimony from the date of dissolution until 1979 when he increased the payments to $800.00 — $400.00 each for alimony and support — which continued for several months. Appellant then reduced the payments to the original $600.00 per month.

Appellee then requested appellant to produce copies of his income-tax returns for the years 1976 through 1979 to which an objection was entered. The trial court overruled the objection and ordered appellant to produce the records. Appeal is taken from that non-final order to produce.

Whether appellant is complying with the agreement to pay the alternative percentage of his gross income as alimony and child support can best be determined by an examination of his records of income for the periods in question. This court will not consider appellant’s untimely defense that the settlement agreement is ambiguous. On these facts the trial court did not abuse its discretion in granting the discovery motion. The evidence sought herein is relevant to the ostensible issue of compliance with the settlement agreement. Orlowitz v. Orlowitz, 199 So.2d 97 (Fla.1967) and Jacobs v. Jacobs, 50 So.2d 169 (Fla.1951).

Affirmed.


text:
    Robert CRUZ, Appellant, v. The STATE of Florida, Appellee.
    No. 81-2005.
    District Court of Appeal of Florida, Third District.
    Feb. 2, 1982.
    Robert Cruz, in pro. per.
    Jim Smith, Atty. Gen., for appellee.
    Before HENDRY, SCHWARTZ and BASKIN, JJ.
   PER CURIAM.

Pursuant to Fla.R.App.P. 9.140(g), the petitioner has appealed from an order which, apart from correctly striking the five years probation which followed his ten year prison sentence, Villery v. Florida Parole & Probation Commission, 396 So.2d 1107 (Fla.1981), summarily denied his motion for post-conviction relief under Fla.R.Crim.P. 3.850. The court has required the state to respond and has considered that response and the record presented. We find that the petitioner’s contentions are either frivolous on their face or are completely refuted by the transcript of the colloquy which took place when he pled guilty to the charges in question. Since it therefore conclusively appears that the defendant is entitled to no relief, the order under review is

Affirmed.


text:
    COMPANIA ANONINA NAVIERA DE TRANSPORTE Y TURISMO, a/k/a Transytur Line, Appellant, v. POLICUERO, C. A., a Venezuelan corporation, and Interamericana De Ajustes, C. A., a Venezuelan corporation, as Subrogee, Appellees.
    No. 81-2302.
    District Court of Appeal of Florida, Third District.
    Feb. 2, 1982.
    Richard F. Ralph, Miami, for appellant.
    Gerhardt A. Schreiber, Coral Gables, for appellees.
    Before HUBBART, C. J., and BARK-DULL and BASKIN, JJ.
   PER CURIAM.

Finding no abuse of discretion in the trial court’s denial of appellant’s motion to dismiss predicated upon forum non conveniens, we affirm. We note that the parties contracted for determination of their rights according to the laws of the United States, one of the factors properly considered by the court.

Affirmed.


author: PER CURIAM

text:
    Manuel CRESPO, Appellant, v. FIDELITY REALTY CO., INC., and Daniel Travieso, Appellees.
    No. 81-2305.
    District Court of Appeal of Florida, Third District.
    Feb. 2, 1982.
    Rohan & Rohan and Laurence J. Rohan, Miami, for appellant.
    Krause, Reinhard, Pozen & Buchbinder and Ronald E. Dobelstein, Miami, Maguire & Friend and Michael R. Friend, Coral Gables, for appellees.
    Before HUBBART, C. J., and BARK-DULL and BASKIN, JJ.
   PER CURIAM

Affirmed. See: Hill v. Bridgers, 397 So.2d 1212 (Fla. 2d DCA 1981).


text:
    Richard LEWIS, Appellant, v. The STATE of Florida, Appellee.
    No. 82-94.
    District Court of Appeal of Florida, Third District.
    Feb. 2, 1982.
    Richard Lewis, in pro. per.
    Jim Smith, Atty. Gen., for State.

      Before NESBITT, BASKIN and FERGUSON, JJ.
   PER CURIAM.

Petitioner, pursuant to Florida Rule of Appellate Procedure 9.140(g), having taken this appeal from the summary denial of his motion for post conviction relief under Florida Rule of Criminal Procedure 3.850, and this court having considered the record presented and having further determined that it conclusively appears therefrom that petitioner is entitled to no relief, the denial of his motion is affirmed.


author: DAUKSCH, Chief Judge.

text:
    James McArthur HUTCHESON, Appellant, v. STATE of Florida, Appellee.
    No. 80-1252.
    District Court of Appeal of Florida, Fifth District.
    Feb. 3, 1982.
    James Lien, Orlando, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Barbara Ann Butler, Asst. Atty. Gen., Day-tona Beach, for appellee.
   DAUKSCH, Chief Judge.

This is an appeal from a conviction for trafficking in stolen property.

Appellant was the Florida sales representative for Spyder Sales and Service Company, a Texas equipment manufacturing company. Spyder shipped forklifts to appellant who received, possessed, stored and sold them on behalf of Spyder. On February 14,1979, appellant reported to the police that a Spyder forklift bearing serial number FE4470978 had been stolen. On March 2, 1979, appellant sold and delivered a Spyder forklift with serial number FE4000978 and Spyder’s warranty papers and received from Mr. Horn a check for the purchase price made payable to Spyder Sales and Service. Appellant cashed the check through a business associate, went to Texas and delivered at least part of the Horn sale proceeds to a representative of Spyder. Then he gave notice of resignation as an employee and left Spyder’s employment. Soon thereafter Mr. Horn called on Spyder for warranty work and it came to light that the original serial number on that forklift was FE4470978, the number on the forklift reported stolen. On these facts appellant was convicted of a violation of section 812.019(1), Florida Statutes (1979), which provides in part that

Any person who traffics in, or endeavors to traffic in, property that he knows or should know was stolen shall be guilty of a felony of the second degree....

Section 812.012, Florida Statutes (1979), sets out definitions for the chapter and specifically provides:

(6) “Stolen property” means property that has been the subject of any criminally wrongful taking.
(7) “Traffic” means: (a) to sell, transfer, distribute, dispense, or otherwise dispose of property; (b) to buy, receive, possess, obtain control of, or use property with the intent to sell, transfer, distribute, dispense, or otherwise dispose of such property.

The appellant asserts and we agree that there was insufficient evidence to support the conviction as charged in the information. The information charges that the appellant “did . . . unlawfully traffic in or endeavor to traffic in property, to-wit: a forklift that he knew or should know (sic) was stolen.” The evidence was clear that appellant was the authorized agent of the company which owned the forklift and he had the authority to sell it. He committed no crime in selling the forklift. His crime, if any, was in failing to remit the full proceeds from the sale to his employer. If the state had charged him with feloniously misappropriating those funds perhaps the evidence would have supported a conviction. The state attorney made a mistake, charged one crime and proved something else. Thus we must reverse the conviction.

REVERSED.

ORFINGER, J., concurs.

COWART, J., concurs in result only.


author: SHARP, Judge.

text:
    Gary R. GRIFFIN, Appellant, v. ST. JOHNS RIVER WATER MANAGEMENT DISTRICT, Appellee.
    No. 81-1015.
    District Court of Appeal of Florida, Fifth District.
    Feb. 3, 1982.

      Ross A. McVoy of Madigan, Parker, Gat-lin, Swedmark & Skelding, Tallahassee, for appellant.
    Vance W. Kidder, Staff Atty., Tallahassee of St. Johns River Water Management Dist., for appellee.
   ON MOTION TO DISMISS

SHARP, Judge.

Pursuant to Chapter 120 of the Administrative Procedure Act, Griffin appeals the denial of his application for a permit by the St. Johns River Water Management District. In his notice of appeal, Griffin stated that he was also requesting review of the permit denial by the Governor and the Cabinet sitting as the Land and Water Adjudicatory Commission, pursuant to section 373.114, Florida Statutes (1979); and further, that he would seek review of the agency action in the circuit court, pursuant to section 373.617, Florida Statutes (1979).

Approximately one month after filing his notice of appeal, Griffin filed a motion to abate this appeal pending the completion and resolution of the circuit court proceedings. The St. Johns River Water Management District objected to the abatement and filed a motion to dismiss the appeal for failure to “exhaust an administrative remedy” by completing the administrative appeal at the cabinet level. For the reasons stated herein, we dismiss this appeal.

In Griffin’s behalf we note with concern the complexity of the provisions in Chapter 373 dealing with appeals. Section 373.617, Florida Statutes (1979) provides:

(2) Any person substantially affected by a final action of any agency with respect to a permit may seek review within 90 days of the rendering of such decision and request monetary damages and other relief in the circuit court in the judicial circuit in which the affected property is located; however, circuit court review shall be confined solely to determining whether final agency action is an unreasonable exercise of the state’s police power constituting a taking without just compensation. Review of final agency action for the purpose of determining whether the action is in accordance with existing statutes or rules based on competent substantial evidence shall proceed in accordance with Chapter 120. (Emphasis supplied).

Further, section 373.114 provides:

The Governor and cabinet, sitting as the Land and Water Adjudicatory Commission, shall have the exclusive power by a vote of four of the members to review, and may rescind or modify, any rule or order of a water management district, except those rules which involve only the internal management of the water management district, to insure compliance with the provisions and purposes of this chapter.... Such request for review is not a precondition to the effectiveness of such rule or order, or to the seeking of judicial review as provided in 373.133 and 120.68. (Emphasis supplied).

Some case law apparently indicates that pursuit of Chapter 120 review in the District Court of Appeal is a prerequisite to being able to raise the “inverse condemnation” or “taking” issue in the circuit court. Key Haven Associated Enterprises, Inc. v. Board of Trustees of the Internal Improvement Trust Fund, 400 So.2d 66 (Fla. 1st DCA 1981); Albrecht v. State, 407 So.2d 210 (Fla.2d DCA 1981), modified on rehearing, (Fla.2d DCA December 11, 1981) [1981 F.L.W. 2600]; Coulter v. Davin, 373 So.2d 423 (Fla.2d DCA 1979). Some courts have also held that an issue, like “unjust taking” of property, must be raised in the Chapter 120 appeal before it can be raised in the circuit court. Coulter. However, none of these cases consider the later applicable statutes, section 253.763 or section 373.617.

In view of the statutes and the case law, we understand why appellant felt it was necessary to protect his rights by pursuing all three avenues of appeal simultaneously. However, our interpretation of the statutes makes this unnecessary. The Legislature has the power and discretion to provide the mechanism for judicial review of administrative agency action. So long as one adequate method is established, due process does not require that the courts provide another, and the statutory method should be followed. Fla. Welding & Erection Service, Inc. v. American Mutual Ins. Co., 285 So.2d 386 (Fla.1973).

Section 373.617(2) clearly sets up a bifurcated appeal procedure, both avenues of which must be pursued simultaneously because of the time deadlines. If the aggrieved party wants to appeal issues dealing with whether the agency followed the statutes or rules or acted on competent substantial evidence, it must perfect its appeal in accordance with section 120.68. If it claims the agency action constitutes an “unconstitutional taking” of property, it must file an action in the circuit court, pursuant to section 373.617(2). There the circuit court can fully litigate de novo this issue and prepare a complete record. After the circuit court has rendered its final decision on the “taking” issue, either side can then seek appellate review in the District Court of Appeal under Rule 9.030(b)(1)(A).

We reject the concept that the “taking” issue should first be raised and determined in the District Courts of Appeal under this statute. If that was done, at worst it would bar consideration of this issue by the circuit court on principles of res judicata thereby defeating the bifurcated appeal provision of section 373.617(2), and at best it would result in an “administrative morass” of undue proportions. Therefore, we conclude that the portion of this appeal dealing with the “taking issue” should be dismissed without prejudice to appeal from the circuit court after conclusion of its efforts under section 373.617(2).

The balance of the issues sought to be appealed pursuant to chapter 120 would now be appropriate for review by this Court, had appellant not sought discretionary review by the Land and Water Adjudicatory Commission,^ pursuant to section 373.114. Since the Commission may modify or rescind the action of the Water Management District, it cannot be considered (as yet) “final” agency action. See School Board v. Noble, 372 So.2d 1111 (Fla.1979). Final disposition by the Commission must occur before this court will have jurisdiction pursuant to Rules 9.110(a)(2) and 9.030(b)(1)(C) and section 120.68. Brooks v. School Board, 382 So.2d 422 (Fla. 5th DCA 1980).

Griffin’s appeal to the Commission will toll the time for seeking judicial review in this court, pursuant to Chapter 120. Therefore, we dismiss this appeal without prejudice to refile it within the time required by Chapter 120, upon final disposition of the discretionary appeal by the Commission. However, if that time has run prior to the issuance of this opinion, we will entertain a petition to reinstate the Chapter 120 appeal and treat it as prematurely filed but subsequently matured. See Williams v. State, 324 So.2d 74 (Fla.1975).

APPEAL DISMISSED.

ORFINGER and COBB, JJ., concur.

      . The parties indicate that both courses of appeal have in fact been pursued.

      . Johnson v. McNeill, 151 Fla. 606, 10 So.2d 143 (1942).

      . The lack of a complete record on the taking issue in a Chapter 120 review of an agency action by the District Court of Appeal was a problem. Since administrative agencies are not supposed to decide constitutional issues, (Pickerill v. Schott, 55 So.2d 716 (Fla.1951)) the agency may not have heard testimony on that issue, and the District Courts of Appeal are not set up to take testimony, even though Chapter 120 provides for a wealth of remand and review possibilities.

        . Key Haven Associated Enterprises, Inc. v. Board of Trustees, 400 So.2d 66 (Fla. 1st DCA 1981) (Booth, J., dissenting); Rice v. Department of Health and Rehabilitative Services, 386 So.2d 844, 845 (Fla. 1st DCA 1980) (Booth, J., dissenting).

      . Phillips v. Santa Fe Community College, 342 So.2d 108 (Fla. 1st DCA), appeal dismissed, 345 So.2d 426 (1977); Peterson v. State Dep’t. of Environmental Regulation, 350 So.2d 544 (Fla. 1st DCA 1977).


text:
    STATE of Florida, Appellant, v. Walter HILLIARD and Robert Critcher, Appellees.
    No. 80-320.
    District Court of Appeal of Florida, Fourth District.
    Feb. 3, 1982.
    Jim Smith, Atty. Gen., Tallahassee, and Laura R. Morrison, Asst. Atty. Gen., West Palm Beach, for appellant.
    David R. Damore, Fort Lauderdale, for appellee Critcher.
   PER CURIAM.

The state’s numerous violations of discovery rules and court orders directing discovery ultimately led, on the eve of trial, to an order dismissing the information as to appellees, the court having determined on the basis of an evidentiary hearing that the state’s non-compliance was not inadvertent, the violations were substantial, and the defendants were irreparably prejudiced in the preparation of their defense.

The record adequately supports the trial court’s findings and the state has failed to show an abuse of discretion.

AFFIRMED.

DOWNEY and ANSTEAD, JJ., and OWEN, WILLIAM C., JR., (retired), Associate Judge, concur.


author: DOWNEY, Judge.

text:
    STATE of Florida, Appellant, v. Carlton HAMILTON, Appellee.
    No. 80-1853.
    District Court of Appeal of Florida, Fourth District.
    Feb. 3, 1982.

      Jim Smith, Atty. Gen., Tallahassee, and Andrea T. Mohel, Asst. Atty. Gen., West Palm Beach, for appellant.
    Craig C. Keller of Keller & Keroff, P. A., West Palm Beach, for appellee.
   DOWNEY, Judge.

A car, which appellant Hamilton was driving and in which Sammie Carter was a passenger, was stopped by Deputy Nault because it was being driven at 65 miles per hour in a 55 mile per hour zone. When Hamilton could not produce a driver’s license, Nault returned to his unit to make a driver’s license check. While Nault was doing so Deputies Wells and Sells arrived as a back-up team. Wells approached the driver’s side of the car, while Sells went to the passenger’s side. Sells ordered the passenger, Carter, out of the car. As he exited the vehicle Carter told Sells there was a gun in the car. Sells relayed this information to Wells. Wells testified that he saw a box under the front seat and asked Hamilton what was in it. Hamilton’s response was to push it further back under the seat, which gesture was seen by both Wells and Sells. Wells then asked Hamilton for the box, and as Hamilton exited the ear, he gave the box to Wells. Knowing there was a gun in the car, Wells was extremely concerned about his safety. He opened the box because he thought it might contain a gun. However, instead of a gun, the box contained a baggie of powder that appeared to be cocaine and Hamilton was placed under arrest for possession of cocaine. Thereafter, Sells saw a bulge under the mat on the driver’s side of the car; he picked up the mat and found a loaded .357 magnum. Since the car was partially on the roadway, it had to be towed, and a pre-towing inventory search of the car was conducted. The inventory search revealed approximately $4,700 cash in the car trunk.

Thereafter the state filed an information charging Hamilton and Carter with: (1) possession of cocaine with intent to sell, and (2) carrying a concealed firearm. Hamilton filed a motion to suppress physical evidence (the cash, the .357 magnum, and the cocaine).

The trial court granted Hamilton’s motion to suppress upon the ground

“that if the gun had been in the box it would have been securely encased and, therefore, the officer did not have probable cause to search the box for weapons. All subsequent searches were also illegal.”

We reverse the order of suppression on numerous grounds. First, we hold that, once Wells and Sells had probable cause to believe there was a gun in the car (and they clearly had such cause after Carter told Sells there was a gun in the car and Sells relayed the information to Wells), they had the right to protect themselves by searching the car and any areas accessible to the driver or passenger. Brown v. State, 358 So.2d 596 (Fla. 2d DCA 1978); Romanoff v. State, 391 So.2d 783 (Fla. 4th DCA 1980). A container (such as the box in the present case) located in areas accessible to the car’s occupants is not immune from a search for weapons, because a weapon for which police are legitimately searching might be in the container. See Hochstetler v. State, 400 So.2d 974 (Fla. 4th DCA 1981); cf. New York v. Belton, — U.S. —, —, 101 S.Ct. 2860, 2864, 69 L.Ed.2d 768, 775 (1981).

We disagree with the circuit court’s above quoted reasoning because a law enforcement officer ought not be required to guess at the risk of his life whether a box or other receptacle contains a securely encased firearm or one that is not securely encased. This is so because secure encasement of a firearm is a legal defense for an individual against a charge of unlawful possession of a firearm. § 790.25(3)(1), Fla. Stat. (1979). However, the possibility that a firearm is securely encased is neither a ground for nor a prohibition against a protective search for a firearm; such a possibility is legally irrelevant to the propriety of conducting a protective search. We hold that under the facts of this case the war-rantless search of the box was lawful as a protective search.

We further hold that the circuit court erred in granting the motion to suppress insofar as the loaded .357 magnum was concerned. We reiterate that the officers had probable cause to believe there was a gun in the car. When they did not find the gun in the box, they were justified in continuing their protective search for the gun in the rest of the car. Brown v. State, supra; Romanoff v. State, supra.

Last, since appellee concedes the validity of the inventory search turns on the validity of the search of the box and we have held that the search of the box was valid, we hold that the circuit court erred in suppressing the money found in the trunk of the car.

For the foregoing reasons, we reverse the order granting Hamilton’s motion to suppress and remand the cause with directions that the circuit court enter an order denying that motion.

REVERSED AND REMANDED, with directions.

GLICKSTEIN and HURLEY, JJ., concur.


text:
    Lauren Moore DELEHANT, Appellant, v. Dorothea Margaret DELEHANT, Appellee.
    No. 80-1872.
    District Court of Appeal of Florida, Fourth District.
    Feb. 3, 1982.
    L. A. O’Laughlin and Rupert Jansen Smith, Fort Pierce, for appellant.
    Vincent A. Lloyd of Lloyd & Brown, Fort Pierce, for appellee.
   PER CURIAM.

This is the second time this court has been asked to review an award of the marital house of the parties to the wife as lump sum alimony. Again, we find facial error in the trial court’s order of July 28, 1980, finalized by the subsequent final judgment, both of which were entered by the successor trial judge.

In order to comply with our earlier opinion, the original trial judge should have completed the matter or the successor trial judge should have conducted a trial de novo on the issues except dissolution and child custody. Neither was done.

Accordingly, we reverse the order and final judgment and remand to the trial court for proceedings consistent herewith.

REVERSED AND REMANDED.

GLICKSTEIN and HURLEY, JJ., and GREEN, OLIVER L., Associate Judge, concur.

      . See our earlier opinion in Delehant v. Delehant, 383 So.2d 231 (Fla. 4th DCA 1980).

      . See Bradford v. Foundation & Marine Constr. Co., 182 So.2d 447 (Fla.2d DCA), cert. denied, 188 So.2d 821 (Fla.1966); Dash v. Dash, 306 So.2d 543 (Fla.3d DCA 1974).


text:
    DEVCON (PANAMA) INTERNATIONAL CORPORATION and National Union Fire Insurance Company of Pittsburgh, Pa., Appellants, v. SHEFFIELD STEEL PRODUCTS, INC., Appellee.
    Nos. 81-53, 81-610.
    District Court of Appeal of Florida, Fourth District.
    Feb. 3, 1982.
    Bruce Charles King and Robert M. Bro-chin of Kimbrell, Hamann, Jennings, Wom-ack, Carlson & Kniskern, P.A., Miami, for appellants.
    Edward E. Hedstrom of Hedstrom & Smith, Palatka, for appellee.
   PER CURIAM.

This is an appeal from a summary final judgment entered in favor of appellee Sheffield Steel Products, Inc. on its claim for shipping costs against appellants Devcon (Panama) International Corporation and National Union Fire Insurance Company of Pittsburgh, Pa. At the time the summary judgment was entered there was an issue of fact as to whether appellants’ responsibility for shipping costs was part of an overall agreement between appellant Devcon and appellee for the purchase and sale of certain steel products. In addition, Devcon, by way of defense and in a counterclaim still pending, claimed that appellee breached the contract by delivering defective goods, and there is sufficient evidence in the record to create an issue of fact on this claim. Because of the existence of these issues, we believe it was error for the trial court to enter final summary judgment. Holl v. Talcott, 191 So.2d 40 (Fla.1966).

Accordingly, the final judgment is hereby reversed and this cause is remanded for further proceedings consistent herewith.

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


author: LETTS, Chief Judge.

text:
    MARINE MIDLAND BANK-NEW YORK, Appellant, v. William F. ARMS and Great American Bank of Davie, Appellees.
    No. 81-354.
    District Court of Appeal of Florida, Fourth District.
    Feb. 3, 1982.
    J. Robert Olian of Britton, Cohen, Kaufman, Benson & Schantz, Miami, for appellant.
    Dixon Thomas of Dubow & Thomas, Da-nia, for appellee Arms.
   LETTS, Chief Judge.

At issue here is the question of whether a bank account opened in the name of a husband OR his wife could be, as the trial found, “a tenancy by the entirety” and therefore exempt from garnishment proceedings brought against the husband alone. We affirm.

By itself, a bank account issued in the name of a husband OR his wife would not be sufficient to establish any kind of joint tenancy. However, in the case before us the signature card has been checked in the appropriate box, marked “Joint Account” and the language of the accompanying appropriate paragraph to the checked box sets forth that all the funds may be withdrawn by “either one or both or the survivor.”

These facts, coupled with the testimony of the husband to the effect that both he and his wife “owned” the account and the further showing that the money to create the account came from assets owned solely by the wife, were more than sufficient to sustain the trial judge’s conclusion that the intention of the parties was to create a tenancy by the entirety. See First National Bank of Leesburg v. Hector Supply Co., 254 So.2d 777 (Fla.1971).

AFFIRMED.

DOWNEY and HURLEY, JJ., concur.


text:
    HALLMARK INDUSTRIES, INC., Henry J. Oldenkamp and Ken Goodyke, Appellants, v. SCARBOROUGH CHEMICALS, INC., Appellee.
    No. 81-668.
    District Court of Appeal of Florida, Fourth District.
    Feb. 3, 1982.
    J. Terence McManus of Ingalsbe, McMa-nus & Wiitala, P.A., North Palm Beach, for appellants.
    J. David Pobjecky of Troiano & Roberts, P.A., Lakeland, for appellee.
   LETTS, Chief Judge.

The maker of a promissory note contends that suit should have been brought by the payee in the County where the note was signed pursuant to Section 47.061, Florida Statutes (1979). The trial judge disagreed. We agree with the trial judge.

Within the body of the note in question, it is set forth that the consideration therefor is an agreement “a copy of which is attached hereto.” The note and the attached agreement were signed in Palm Beach County on the same day before the same notary public.

The signed agreement, duly attached to the note, clearly and unequivocally provided that “the forum for all litigation which may result from the terms and conditions of this agreement to include any declaratory actions brought hereon shall be brought in the County of Martin, State of Florida.”

Simply stated, parties to an agreement can agree on venue. Producers Supply, Inc. v. Harz, 6 So.2d 375 (Fla.1942). In the case now before us, the promissory note makes specific reference to the attached agreement and the agreement speaks of its terms and conditions within which the promissory note, of necessity, is included. The two instruments are inextricably intertwined. Such an admixture is more than sufficient to take this cause of action out of the purview of Section 47.061, Florida Statutes (1979) which requires that suit be brought in the county where the maker signed the note.

Accordingly we hold that Martin County is the appropriate forum for suit on this note, especially since the complaint incorporates and attaches the very agreement discussed herein and specifically refers to the paragraph agreeing to venue.

AFFIRMED.

ANSTEAD and HURLEY, JJ., concur.


author: DELL, Judge.

text:
    Wayne H. ESTEY, Appellant, v. SHARP ELECTRONICS CORPORATION, etc., Appellee.
    No. 81-714.
    District Court of Appeal of Florida, Fourth District.
    Feb. 3, 1982.
    Charles W. Musgrove and J. Ralph Mabie, West Palm Beach, for appellant.
    Armistead W. Ellis, Jr., of Nohrr, Nohrr, Brushwood & Howze, P.A., Melbourne, for appellee.
   DELL, Judge.

Wayne H. Estey appeals from an order on proceedings supplementary which set aside a transfer of real property from the appellant to his father. The appellant claims that he held the land pursuant to a resulting trust. We agree and accordingly reverse the trial court’s order that the property is subject to the appellee’s execution.

In 1972, the appellant’s father, L. W. Estey, acquired land, the title to which he put in appellant’s name. The deed to the property listed the grantee as “Wayne H. Estey c/o L. W. Estey.” Appellant did not learn of the inclusion of his name on the deed until several months later. Appellant’s father paid all taxes and expenses related to the land. Further, although the land was income producing by virtue of its yield of citrus, appellant never received any such income. In short, appellant never enjoyed any of the benefits from the land, nor did he incur any expenses related to the property. On June 28, 1979, a judgment was entered against the appellant by the appellee. During the course of discovery, appellee learned that the property in question had been transferred to L. W. Estey by appellant. This transfer occurred after the judgment had been entered. There is no evidence that appellee had any knowledge of the property until after discovery was taken in aid of execution. It is well settled that,

A judgment creditor cannot have his debt satisfied out of the property held in the name of his judgment debtor under a resulting trust for another, unless it is made to appear that it was on the faith of the judgment debtor’s apparent ownership that the credit was given which resulted in the judgment sought to be satisfied.

Laganke v. Sutter, 137 Fla. 71, 187 So. 586 (1939); First National Bank of Arcadia v. Savarese, 101 Fla. 480, 134 So. 501 (Fla.1931).

It is generally stated that the party seeking to establish a resulting trust has the burden of proving its existence by “clear, strong and unequivocal evidence.” Powell v. Race, 151 Fla. 536, 10 So.2d 142 (Fla.1942). However, Section 56.29(6)(a), Florida Statutes (1981) alters this conclusion.

When, within one (1) year before the service of process on him, defendant has had title to, or paid the purchase price of, any personal property to which his wife, any relative, or any person on confidential terms with defendant claims title and right of possession at the time of examination, the defendant has the burden of proof to establish that such transfer or gift from him was not made to delay, hinder, or defraud creditors.

This section specifically provides that a defendant has the burden of proving a resulting trust only when “personal property” is at issue. Where real property is concerned, as here, the statute indicates that the burden of proving fraud is upon the plaintiff. (Expressio unis est exclusio alter-ius).

Also supporting appellant’s position is a presumption regarding property exchanged between relatives.

Where a transfer of property is made to one person and the purchase price is paid by another, and the transferee is a wife, child or other natural object of bounty of the person by whom the purchase price is paid, and the latter manifests an intention that the transferee should not have the beneficial interest in the property, a resulting trust arises.

Restatement (Second) of Trusts, § 443. See also, Martin v. Wilson, 115 So.2d 573 (Fla. 1st DCA 1959) and V Scott on Trusts, § 442 (3d Ed. 1967).

Therefore, the dispositive issue is, did appellant’s father manifest an intention that appellant was not to have a beneficial interest in the land? We find that such an intention is amply demonstrated by the record. First, it is important to note that appellant was not told of the inclusion of his name on the deed until several months after his father acquired the property. If an outright gift were intended it is logical to assume that appellant would have learned of it much earlier. (It is axiomatic that delivery is essential to the creation of a gift. In re Slawson’s Estate, 41 So.2d 324 (Fla.1949).) Conversely, appellant’s lack of knowledge is no impediment to the creation of a resulting trust.

If A purchases property and has the conveyance made to B, a resulting trust arises in favor of A even though B had no knowledge that the conveyance was made to him. The trust arises because A presumptively did not intend that B should have the beneficial interest, not because B intended to hold the property in trust. B would be unjustly enriched if he were permitted to retain the property when A never intended to give him a beneficial interest. If B knew of the conveyance to him but thought that a gift to him was intended, he should nevertheless be compelled to hold upon a resulting trust for A, unless in reliance upon his belief that a gift was intended he has so changed his position that it would be inequitable to compel him to surrender the property.

Scott on Trusts, § 440, supra.

The next and most compelling indication of the father’s intention to retain ownership of the property is the fact that it was he who incurred all of the expenses of maintaining the land. Appellant contributed nothing, nor was he expected to. All taxes and costs related to the property were paid by the father. Appellant had never even been on the property.

It is the intention of the payor at the time of the transfer and not at some subsequent time which determines whether a resulting trust arises. Compare § 457. The conduct of the payor and of the transferee subsequent to the transfer, however, may .be such as to show that at the time of the transfer the payor did not intend to make a gift to the transferee. Thus, the fact that the payor manages the property, collects rents, pays taxes and insurance, pays for repairs and improvements, or otherwise asserts ownership, and the acquiescence by the transferee in such assertion of ownership, is evidence to rebut the inference of an intention by the payor to make a gift to the transferee.

Restatement (Second) of Trusts, § 443.

Lastly, is the fact that the deed itself does not express an intention that L. W. Estey had purchased the land as a gift for his son. He had the vendor of the property convey the land to appellant, Wayne H. Estey, in care of L. W. Estey. While the legal significance of this language is not conclusive of the issue, it does support appellant’s position that he only held the land in trust for his father. An analogous situation is found in property law. Were a purchaser to buy the parcels of land in question, certainly the language of the deed would be sufficient to put him on notice as to possible defects in the title.

A purchaser is bound by the recitals in conveyances in his chain of title. When anything appears in these title deeds sufficient to put a prudent man on inquiry which if prosecuted with ordinary diligence would lead to actual knowledge of some right or title in conflict with the title he is about to purchase, it is his duty to make inquiry, and if he does not do so he is chargeable with actual knowledge of what the inquiry would have disclosed. The description of a grantee as trustee in a recorded deed is notice of a trust of some description and puts a subsequent purchaser or mortgagee upon inquiry as to the existence or nature of such trust.

8 Thompson on Real Property, § 4310 (1963).

The circumstances surrounding the purchase of this property adequately support the proposition that appellant held no beneficial interest in the land. His only association with it was the inclusion of his name on the deed. This fact, of itself, does not outweigh the other factors which indicate that the true owner of the property had been, and always was, appellant’s father.

Appellee’s primary argument in opposition to appellant’s contention that a resulting trust was created relies upon discrepancies between appellant’s deposition and his father’s. These discrepancies are not of such a profound nature as to indicate fraud on appellant’s part. Most of the inconsistencies are differences of degree rather than kind. It is of little consequence that “nominal” consideration was paid by the father as opposed to “no” consideration. The same is true of whether the father put appellant’s name on the deed to avoid future entanglements with his estranged wife or if the father intended the property to pass to appellant upon the father’s death and then to be used to care for the wife. It is not inconsistent for a father to control property in such a way as to have it pass to his only heir upon his death. As far as the wife was concerned, the fact that the husband (father) expressed a desire to have her provided for does not alter the status of the land as between he and appellant.

Appellee does not offer any evidence of the father’s intent, which is the dispositive feature in the creation of a resulting trust. However, the facts which are in the record portray a piece of property which from the time of its purchase has been in the control of appellant’s father. There is no basis for concluding that appellant had any possesso-ry interest in the land. As such, it was improper for the court to subject this property to execution by appellant’s creditors.

Accordingly, the order of the trial court subjecting the land in question to execution by appellant’s creditors is reversed.

ANSTEAD and HERSEY, JJ., concur.


text:
    Patricia Lee SCATTERGOOD, Appellant/Cross-Appellee, v. Alfred M. SCATTERGOOD, Appellee/Cross-Appellant.
    No. 81-733.
    District Court of Appeal of Florida, Fourth District.
    Feb. 3, 1982.
    Richard Joseph Saliba of Grail, Saliba & McDonough, Vero Beach, for appellant/cross-appellee.
    Charles A. Sullivan, Jr., of Sullivan, Cobb, Sullivan & Orr, Vero Beach, for appel-lee/cross-appellant.
   PER CURIAM.

Appellant/former-wife failed to demonstrate that the trial court abused its discretion by declining to award alimony after an extremely brief marriage. Thus, we affirm that portion of the final judgment. Canakaris v. Canakaris, 382 So.2d 1197 (Fla.1980). However, we reverse paragraph two of the final judgment which requires the former-wife to sell to the former-husband two items of jewelry which the court found to be gifts from the former-husband. Once it was established that the two items were gifts, the former-wife was entitled to exclusive and uninterrupted possession. See Sihler v. Sihler, 376 So.2d 941 (Fla.2d DCA 1979).

Affirmed in part and reversed in part.

GLICKSTEIN, HURLEY and DELL, JJ., concur.


text:
    Michael James GORNEY and Patrick Shawn Autry, Appellants, v. STATE of Florida, Appellee.
    No. 81-834.
    District Court of Appeal of Florida, Fourth District.
    Feb. 3, 1982.
    John Scarola of Montgomery, Lytal, Reiter, Denney & Searcy, P. A., and Edna L. Caruso, West Palm Beach, for appellants.
    Jim Smith, Atty. Gen., Tallahassee, and Laura R. Morrison, Asst. Atty. Gen., West Palm Beach, for appellee.
   PER CURIAM.

REVERSED. We find that the trial court erred in failing to grant the motions to suppress filed by appellants. The police detained the appellants after observing them proceeding in rental cars on the highway and apparently making contact with one another by portable civilian band radios. We do not believe these circumstances were sufficient to give rise to a founded suspicion that the appellants were engaged in criminal activity so as to justify their detention. Kayes and Palmer v. State, 409 So.2d 1075 (Fla. 2d DCA 1981); Royer v. State, 389 So.2d 1007 (Fla. 3d DCA 1980); State v. Stevens, 354 So.2d 1244 (Fla. 4th DCA 1978).

Accordingly, this cause is reversed and remanded for further proceedings consistent herewith.

DOWNEY, ANSTEAD and DELL, JJ., concur.


text:
    STATE of Florida, Appellant, v. Michaela FIVES, Appellee.
    No. 81-847.
    District Court of Appeal of Florida, Fourth District.
    Feb. 3, 1982.
    Jim Smith, Atty. Gen., Tallahassee, and Andrea T. Mohel, Asst. Atty. Gen., West Palm Beach, for appellant.
    Richard L. Jorandby, Public Defender, and Louis G. Carres, Asst. Public Defender, West Palm Beach, for appellee.
   DOWNEY, Judge.

The issue presented in this case involves the commencement of the running of the time for speedy trial.

Appellee was arrested and incarcerated in Dade County pursuant to Dade County charges on October 16,1980. Other charges were pending in Broward County. Thus, when appellee was arrested in Dade County on October 16, 1980, Broward County officials either lodged a detainer against appellee with the Dade County officials or they had a Broward County warrant served upon appellee. The distinction is vital because, if the former transpired, the speedy trial time did not begin to run because lodging a detainer with the custodian does not amount to an arrest, which is the catalyst that triggers the running of the speedy trial time. On the other hand, if the Broward warrant was served upon appellee in Dade County on October 16, 1980, that amounted to his arrest and custody for the criminal episode that gave rise to the Broward charges and commenced the passage of time for trial under Florida Rule of Criminal Procedure 3.191. State v. Bassham, 352 So.2d 55 (Fla.1977); Eaddy v. State, 352 So.2d 98 (Fla. 4th DCA 1977); Williams v. Eastmoore, 297 So.2d 572 (Fla. 1st DCA 1974).

In any event, on February 12, 1981, a capias was issued on the Broward charges and served on appellee in Dade County and she was transferred from Dade to Broward County. Thereafter, on April 21, 1981, ap-pellee moved for discharge, alleging that the speedy trial time had commenced October 16, 1981, and had long since expired. At the hearing on said motion no evidence was taken but counsel argued the matter at some length before the trial judge. It was indicated to the judge that the facts were not in dispute. However, the hearing transcript indicates that the parties obviously do not agree on the vital facts necessary to a proper resolution of the motion. Appellee contended she was arrested in Dade County on October 16, 1980, on the Broward charges, while appellant argues that a Bro-ward county detainer was lodged with the Dade officials and that no arrest took place on Broward charges until February 12, 1981.

Clearly, this case needs an evidentiary hearing to establish the actual facts. For that purpose we reverse the order appealed from and remand the cause to the trial court for an evidentiary hearing on the motion for discharge.

REVERSED AND REMANDED, with directions.

ANSTEAD, J., and OWEN, WILLIAM C., JR., (Ret.), Associate Judge, concur.


author: SCHOONOVER, Judge.

text:
    Nathaniel WATTS, Appellant, v. STATE of Florida, Appellee.
    Nos. 81-1247, 81-1248.
    District Court of Appeal of Florida, Second District.
    Feb. 3, 1982.
    Jerry Hill, Public Defender, Bartow, and Marcia L. Zimmerman, Asst. Public Defender, Tampa, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Deborah A. Osmond, Asst. Atty. Gen., Tampa, for appellee.
   SCHOONOVER, Judge.

The appellant, Nathaniel Watts, has appealed the judgments and sentences entered against him by the trial court. The court’s action was the result of a revocation of probation hearing held over the appellant’s objection after his retained counsel did not appear at the hearing. We reverse.

These are consolidated appeals from two criminal cases involving the appellant. In one case, he pled guilty to unarmed robbery. In the other, he pled guilty to burglary of a conveyance and grand theft. He was placed on five years probation on each of the charges. The three sentences were to be served concurrently.

After the appellant was arrested for involuntary sexual battery, warrants charging him with violating six conditions of his probation were issued.

On the day of the probation revocation hearing, the appellant informed the court that he had retained private counsel. He stated the attorney had visited him the preceding day and agreed to be in court for the hearing. The court refused to continue the hearing to allow the appellant to contact his attorney and made no effort to have him contacted by anyone else. Instead, the appellant was informed that he would have to accept the representation of the public defender’s office. The assistant public defender and the appellant informed the court that there had been no prior contact between them and that they had not discussed the case. The hearing was held over the appellant’s objection, and at its conclusion, the appellant was found guilty of violating his probation. He was immediately adjudicated guilty and sentenced to serve a total of twenty-five years in the state prison.

The appellant contends that he was denied his right to effective assistance of counsel. We agree.

A hearing for violation of probation is a critical stage in a proceeding against a defendant. Gleichauf v. State, 334 So.2d 174 (Fla. 4th DCA 1976).

This court has held that a probationer faced with revocation proceedings has the right to counsel at those proceedings. Van Cleaf v. State, 328 So.2d 568 (Fla. 2d DCA 1976).

We realize the trial court has an interest in bringing matters before it to a speedy determination. However, under the facts of this case, the probationer’s interest in retaining his liberty far outweighed the court’s interest.

Once the court was notified that the appellant had a private attorney who had agreed to represent him, it had the duty to ascertain if the appellant was in fact represented by that attorney. Baker v. Wainwright, 527 F.2d 372, 375 (5th Cir. 1976). Its failure to do so resulted in the denial of the appellant’s right to effective assistance of counsel.

The trial court’s error was not made harmless by appointing the public defender to represent the appellant. He had the right to be represented by his own attorney. § 948.06, Fla.Stat. (1979).

We accordingly reverse and remand for proceedings consistent herewith.

RYDER, A. C. J., and CAMPBELL, J., concur.


author: DANAHY, Judge.

text:
    STATE of Florida, Appellant, v. Charles LEWIS, Appellee.
    No. 81-1341.
    District Court of Appeal of Florida, Second District.
    Feb. 3, 1982.
    Jim Smith, Atty. Gen., Tallahassee, and Michael J. Kotler, Asst. Atty. Gen., Tampa, for appellant.
    James Birkhold, Law Offices of Edwin T. Muloek, Bradenton, for appellee.
   DANAHY, Judge.

The state appeals from an order of the trial court which granted appellant’s motion to suppress. We reverse. e

Appellant is the brother of James Lewis, who was the driver of the car in the episode fully described in State v. Lewis, 406 So.2d 79 (Fla.2d DCA 1981). Appellant is the man who took the toolbox and threw it into the El Camino pickup truck as described in the opinion in James’ case. The facts in both cases are the same. So is our disposition.

REVERSED and REMANDED for further proceedings.

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


text:
    Thomas Ray McDONALD, Appellant, v. STATE of Florida, Appellee.
    No. AB-354.
    District Court of Appeal of Florida, First District.
    Feb. 4, 1982.
    Melanie Hines Alford, Asst. Public Defender, for appellant.
    Jim Smith, Atty. Gen., Carolyn M. Snur-kowski, Asst. Atty. Gen., for appellee.
   PER CURIAM.

We affirm the order revoking appellant’s probation. However, we remand for correction of the harmless clerical error finding that appellant violated Condition No. 8 of his probation because the alleged violation of Condition No. 8 was dismissed by the trial court at the evidentiary hearing below. Grant v. State, 384 So.2d 928 (Fla. 3d DCA 1980); Landry v. State, 380 So.2d 1191 (Fla. 5th DCA 1980). Violation of the other two probation conditions was a sufficient basis for revocation of appellant’s probation and no abuse of the trial court’s discretion was shown.

Accordingly, the order of revocation is AFFIRMED but REMANDED with instructions to correct the clerical error.

BOOTH, SHIVERS, and JOANOS, JJ., concur.


text:
    King Edward RIVERS, Appellant, v. Juanita RIVERS, Appellee.
    No. AC-351.
    District Court of Appeal of Florida, First District.
    Feb. 4, 1982.

      George G. Phillips, Pensacola, for appellant.
    Nathaniel Dedmond, Pensacola, for appel-lee.
   PER CURIAM.

The appellant-husband appeals a final judgment awarding periodic permanent alimony to the appellee-wife in a dissolution proceeding. The primary thrust of appellant’s argument here is that appellee’s petition for dissolution failed to request permanent alimony, or, alternatively, that appel-lee by her testimony at the final hearing waived an award of permanent alimony, by reason of which appellant was misled into believing that permanent periodic alimony was not an issue to which he needed to respond at the final hearing. We reverse and remand for a rehearing on the award of permanent periodic alimony.

Our review of the evidence, including the financial affidavits filed by both parties, reveals adequate evidence both of the wife’s need for periodic alimony, as well as the husband’s ability to pay. The husband, a railroad conducter, has gross earnings nearly two and one-half times the earnings of the wife, who is a licensed practical nurse. The parties have one child, eleven years of age, custody of whom was awarded to the wife, with provisions made for contribution to her support by the husband.

Despite the adequacy of the evidence to support the challenged award of permanent alimony, we nevertheless must consider the manner in which the case was presented in the trial court in order to resolve the issues raised by appellant. Initially, we note that in the body of the petition, the wife alleged that the marital home should be awarded to her as lump sum alimony in order to enable her to properly support herself and the minor child. The petition also alleged that the husband had sufficient income to- “contribute to the support of petitioner and her minor child,” and that without such support the petitioner and her minor child “will be deprived of the necessities of life.” The concluding paragraph, or prayer for relief, did not specifically refer to alimony, but only generally prayed for equitable division or award of the marital properties to the wife, and “such other relief as the court deems necessary....”

At the final hearing, in response to her attorney’s question as to what she wanted in the way of property or financial awards, the wife answered:

A. I would like to keep the house and custody of my daughter. I don’t want to give up anything in there except the things he asks for. I don’t want any alimony. I want child support for her. (emphasis supplied)

Further along in the proceedings the wife’s attorney propounded the following question to the husband, and received the following answer:

Q. (By Mr. Dedmond) Now, in spite of the fact that your wife, for her own reasons I don’t know, doesn’t want any alimony, don’t you think you are entitled to pay it, you should pay her something to support her? (emphasis supplied)
A. No, sir.

At the conclusion of the testimony the trial judge apparently orally announced his ruling, which we assume, from statements contained in the briefs filed here (although unfortunately no record was made of the trial court’s oral ruling or other discussions at the conclusion of the testimony), included the announcement that an award of $200.00 per month permanent periodic alimony would be made to the wife. The wife’s attorney, subsequent to the final hearing, prepared and filed an amended petition for dissolution of marriage in which permanent alimony was specifically requested. The certificate of service on opposing counsel was dated February 9, 1981, and the clerk’s file mark indicates filing on February 12, 1981. An order was entered by the court granting leave to file the amended pleading on February 12, 1981, the same date on which the final judgment of dissolution was signed by the judge.

Appellant claims that the wife’s attorney’s ex parte application to the court for leave to file the amended petition was improper, and that the court’s award of permanent periodic alimony under the circumstances was justified neither by the original petition nor by the evidence presented at the final hearing, particularly the wife’s testimony, pointed out above, which appellant contends amounts to a waiver of periodic alimony.

We would agree that the attorney’s application to the court subsequent to a final hearing, for the purpose of obtaining an order permitting an amendment to the pleading, without notice to opposing counsel, would be contrary to the Rules of Civil Procedure. We have noted the assertion by the wife’s attorney in her brief to the effect that opposing counsel was made aware at the conclusion of the final hearing that application would be made for amendment of the petition to conform to the evidence. Whether or not this is the case we are unable to determine, since we have no record of what was said by counsel at the conclusion of the testimony. However, we conclude that this procedural error, if it in fact occurred, was harmless, in view of our reading of the original petition, portions of which are above quoted. It appears to. us that the allegations of the original petition were sufficient to place appellant on notice that the award of support or alimony for the wife would be an issue in the case.

A somewhat more difficult question is presented, however, by the wife’s testimony at the final hearing. We agree with appellant’s contention that, taken in isolation, the wife’s statements indicate that she was not seeking periodic alimony payments. Notwithstanding, it is equally plausible, taking into consideration the entire evidence of the case, that what the wife was doing was expressing a preference for an award of her husband’s interest in the marital home, in lieu of periodic alimony. The final judgment did not award her the house, but only granted her its use and occupancy so long as needed for herself and the minor child.

We conclude that the wife’s statements at the hearing did not amount to a waiver of periodic alimony, and that the record otherwise contained ample evidence to justify the trial court’s award of periodic alimony. Notwithstanding, the circumstances are such that we have given serious consideration to appellant’s contention that he was misled into believing that it was unnecessary to present evidence or to defend further against the possibility of a periodic alimony award. In so doing, we have concluded that appellant should be given an opportunity, at a rehearing, to present such evidence and argument in opposition to the periodic alimony award as he may choose. The belated amendment to the petition did not counteract appellee’s testimony which on its face is inconsistent with the award. As a matter of fact, we view the amendment not as “conforming to the evidence,” but contrary to it, in the sense that appellee by her testimony appeared willing to forego an award of permanent periodic alimony.

For the reasons stated, the award of periodic alimony is vacated and the cause is remanded for rehearing. In the event the permanent alimony award is not reinstitut-ed, then the court shall be at liberty to readdress all property and monetary matters; provided further, however, in that event appellee shall be entitled to request that any sums accruing as alimony under the judgment appealed be considered as temporary alimony.

REVERSED and REMANDED.

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

      . All property and monetary issues in dissolution cases are interrelated and interdependent. Canakaris v. Canakaris, 382 So.2d 1197 (Fla.1980).


author: LARRY G. SMITH, Judge. WENTWORTH, Judge,

text:
    George Muncie CANTER, Appellant, v. FLORIDA PAROLE AND PROBATION COMMISSION, Appellee.
    No. AE-459.
    District Court of Appeal of Florida, First District.
    Feb. 4, 1982.

      George Muncie Canter, pro se.
    Rosa H. Carson, Asst. Gen. Counsel, Tallahassee, Florida Parole and Probation Commission, for appellee.
   LARRY G. SMITH, Judge.

The appellant, George Muncie Canter, appeals an order of the Commission denying his request for review of his presumptive parole release date (PPRD). The appellee-Commission moved to dismiss the appeal as untimely, contending that appellant was actually seeking a second review of his PPRD which had already been reviewed by it under Section 947.173(1), Florida Statutes (1979), and affirmed by order entered some five months earlier. We agree with the Commission’s position that appellant has no right to seek a second review under Section 947.173(1), and we further agree that since appellant did not seek review of the earlier establishment of his PPRD, his present appeal would be untimely for that purpose. Furthermore, we find no statutory or rule authority conferring upon inmate petitioners the right to a “special review” by the Commission. Therefore, we affirm the Commission’s denial of appellant’s petition insofar as it claims the right to a “special review” on the basis of “new information,” and we further find that even if considered by the Commission in its discretion, the information supplied by petitioner entitled him to no relief.

The facts are that appellant's PPRD was initially established on September 10, 1980. Appellant sought review pursuant to Section 947.173(1), Florida Statutes (1979), alleging that the Commission erroneously aggravated him upon the assumption that for separate offenses he had received a consecutive probation term and a jail sentence, when in fact the probation term was to run concurrently with the jail sentence. On December 18, 1980, the Commission affirmed his PPRD, and appellant sought no judicial review of the Commission’s order. However, on May 25, 1981 appellant filed a “petition for review” with the Commission, in which he alleged that, subsequent to the Commission’s affirmance of his PPRD, the trial court had entered an order correcting the sentence for the separate offenses by specifying that the jail sentence and the probationary term were to run concurrently, rather than consecutively. On the basis of this “new information,” petitioner claimed the right to another review of his PPRD, basing his contention upon Section 947.16(4), which provides that subsequent to establishment of the PPRD, the Commission may, at its discretion, review and change the PPRD upon the acquisition of “new information not available at the time of the initial interview.” Upon receipt of the petition the Commission treated it as an attempt to obtain a second review of his PPRD and declined to consider the “new information” furnished by petitioner.

Because of the multiplicity of petitions for review filed by inmate petitioners and the numerous appeals to this court resulting from the Commission’s action in denying them, we think it is pertinent to elaborate upon the limited review of the PPRD process pursuant to the statute and rules of the Commission. A PPRD is established in accordance with Section 947.172, and the inmate is entitled to one review by the Commission. Section 947.173, Florida Statutes (1979). Only one request for review is allowed, and only one review is required. Both the statute Section 947.-173(1)) and the applicable rule (Rule 23-16.-051(3), Florida Administrative Code), require the filing of a request for review with the Commission within sixty days after the date of establishment of the PPRD, and both the rule and the statute require as a predicate to relief, that the request shall show cause “in writing, with individual particularities,” the reasons for the requested review. (Section 147.173(1)). This administrative review or denial of the inmate’s request constitutes final agency action and is appealable in accordance with the dictates of Section 120.68, Administrative Procedure Act, and the Florida Appellate Rules. Neither the statutes nor the rules permit subsequent, amended, or supplemental requests for review setting forth new or additional grounds or reasons why the inmate contends the Commission erred in fixing his PPRD, and the Commission is at liberty to either ignore or summarily deny such additional requests for review. The Commission’s refusal to entertain or consider such additional requests, or its denial, would not constitute final agency action which could serve as the basis for an appeal to this court.

Contrary to the assertion by appellant, there is no additional “right of review” conferred upon inmate petitioners by Section 947.16(4), Florida Statutes (1979). The PPRD, once established and affirmed upon review, if any, by the Commission, is binding upon the inmate, subject to judicial review as outlined in Daniels, by timely appeal to the court. This court has heretofore carefully considered and spelled out the binding effect of the PPRD process upon the Commission. James v. Florida Parole and Probation Commission, 395 So.2d 197 (Fla. 1st DCA 1981); McKahn v. Florida Parole and Probation Commission, 399 So.2d 476 (Fla. 1st DCA 1981). The only exceptions to the binding effect of the PPRD established, as held in McKahn, supra, are found in Sections 947.16(4), and 947.173(3). Under Section 947.16(4) the Commission is given the discretion to review the official record or conduct additional interviews with the inmate at its discretion, subject to the restrictions, however, that the PPRD “shall not be changed except for reasons of institutional conduct or the acquisition of new information not available at the time of the initial interview.” This language must be read, according to McKahn, in pari materia with the expression of legislative intent contained in Section 943.173(3) which states: “It is the intent of this legislation that, once set, presumptive parole release dates be modified only for good cause in exceptional circumstances.” While we recognize that the James and McKahn decisions were concerned with the statutes primarily in terms of the limitations they impose upon the Commission, rather than from the standpoint of inmate rights or remedies, it is clear from a plain reading of the statutes that their primary function is to set the parameters which must guide the Commission’s discretion in altering an established PPRD. These sections do not purport to provide for a second, alternative, or cumulative form of PPRD review.

On one point, however, we disagree with the position taken by the Commission on this appeal. That is, we consider that the order of the trial court entered subsequent to appellant’s Section 947.178 review correcting an error in sentencing qualifies as “new information not available at the time of the initial interview” within the purview of Section 947.16(4), so as to furnish a basis for the Commission, in its discretion, to determine whether this new information would warrant consideration of a change in appellant’s PPRD. In this instance, of course, there is no merit whatever to petitioner’s contention that he is entitled to any change, because the Commission’s own rule provides that the Commission may treat consecutive and concurrent sentences in a like manner when applying aggravating factors. See Rule 23-19.01(5), Florida Administrative Code. The validity of this rule has not been challenged in these proceedings, and cannot appropriately be initially attacked in this court since adequate administrative remedies for that purpose are available. Section 120.54(5), 120.-56, Florida Statutes (1979); Comer v. Florida Parole and Probation Commission, 388 So.2d 1341 (Fla. 1st DCA 1980).

The Commission’s motion to dismiss the appeal is granted. The Commission’s action in denying review is affirmed.

McCORD, J., concurs.

WENTWORTH, J., specially concurs with opinion.

WENTWORTH, Judge,

concurring specially.

I agree to the majority conclusion of af-firmance.

      . There is, however, a regular statutorily mandated subsequent review for any inmate whose PPRD falls more than 2 years after the initial hearing date, and the review shall take place within 2 years after the initial hearing and every 2 years thereafter. Section 947.174(1), Florida Statutes. Section 947.174, subsection (2), providing that the Commission for good cause “may at any time” request subsequent review by a hearing examiner panel, merely implements Section 947.174, and coincides with the discretionary review authority conferred by Section 947.16(4).

      . See Daniels v. State, 401 So.2d 1351 (Fla. 1st DCA 1981).

      . The Commission’s discretionary action in denying or refusing to consider an inmate’s petition for review of “new information not available at the time of the initial interview” would be subject to review and reversal by a district court of appeal only upon a clear showing of “exceptional circumstances” rendering the Commission’s action an abuse of discretion. Section 120.68(12), Administrative Procedure Act; Corte v. Dept. of Administration, Career Service Commission, 386 So.2d 875 (Fla. 1st DCA 1980).

      . It should be noted that under the express provisions of Section 120.52(10)(d), Florida Statutes, prisoners (and parolees) have no access to Section 120.57 proceedings, and are thus barred from the remedy — available generally to substantially affected parties — of presenting a rule challenge in connection with other grievances cognizable under 120.57. See State ex rel Department of General Services v. Willis, 344 So.2d 580 (Fla. 1st DCA 1977).


text:
    Gennarro D. JACKSON, Appellant, v. FLORIDA PAROLE AND PROBATION COMMISSION, Appellee.
    No. AH-321.
    District Court of Appeal of Florida, First District.
    Feb. 4, 1982.
    Rehearing Denied March 10, 1982.
    Gennarro D. Jackson, pro se, for appellant.
    Jim Smith, Atty. Gen., for appellee.
   PER CURIAM.

The decision of the Circuit Court for the Eighth Judicial Circuit, in and for Union County, is affirmed.

BOOTH, SHIVERS, and JOANOS, JJ., concur.


text:
    Kenneth Jack HODGE, Appellant, v. Sharon Ann Ayers HODGE, n/k/a Sharon Ann Jones, Appellee.
    No. AB-147.
    District Court of Appeal of Florida, First District.
    Feb. 4, 1982.

      James H. Harrison, Malone & Harrison, Orlando, for appellant.
    Kenneth E. Brooten, Jr., Gainsville, for appellee.
   PER CURIAM.

In this case the appellant-husband appeals a trial court order directing him to continue making child support payments for his minor child who is now over the age of eighteen years, and to pay the appellee-wife’s attorney’s fees incurred in connection with proceedings initiated by the wife for enforcement of the child support order. We affirm.

The divorce decree in this case was entered in 1965, at which time the court ordered payment of child support by the husband “until further order of the court.” In July, 1975, pursuant to stipulation by the parties, an order was entered terminating the husband’s obligations to pay child support under a split-custody arrangement the parties desired to experiment with, with the further proviso that this arrangement should continue until September 1, 1976, after which date the parties could either agree or the court would rule on the future arrangement. In April, 1976, pursuant to the wife’s petition for modification, the court ended the split-custody arrangement and restored primary custody of the child to the wife, with visitation by the husband. No child support payments were ordered at that time. In October, 1976, upon the wife’s petition, the court ordered the husband to resume child support payments of $150.00 per month. The order was silent as to the future termination of child support.

The husband complied with the October 19, 1976 order through November, 1980, at which time he informed the trial court that the child had reached the age of eighteen, and that by operation of Section 743.07(1), Florida Statutes, enacted in 1973, reducing the age of majority from twenty-one to eighteen, no further obligation existed for child support payments by him. The husband did not seek a modification, but merely stopped payments.

On appeal, appellant relies upon language in White v. White, 296 So.2d 619 (Fla. 1st DCA 1974), for his contention that since the original child support order specified no time for termination of payments, there was no obligation existing prior to the effective date of Section 743.07, and that pursuant to the statute, his obligation to pay child support terminated upon the child’s reaching the age of eighteen. The husband further contends that the July, 1975 court order terminated his obligation to pay child support. Consequently, he argues, all rights and obligations existing prior to July 1, 1973 were terminated. Furthermore, he contends, when the trial court ordered him to resume child support payments in October, 1976, that order, being subsequent to the enactment of Section 743.07, became subject to all provisions of that law.

Appellant’s reliance upon White v. White, supra, is misplaced, and we find Finn v. Finn, 312 So.2d 726 (Fla.1975), to be the controlling authority. In the Finn case, the court expressly held that an order for child support, predating the enactment of Section 743.07, without specifying a termination date, must be construed to require child support payments until age twenty-one. As for appellant’s second contention, that the order entered in July, 1975 terminating his child support obligation had the effect of vitiating any obligations arising under the original 1965 decree, as dictated by Finn, supra, we agree with the trial court’s determination that the 1975 order did not have the effect appellant urges. The trial court found, and we agree, that the 1975 modification, at the request of the parties, was only temporary in nature, and when child support payments were ordered in October, 1976, this was simply a resumption of the obligation for child support originally established in 1965.

On the second point, we find no abuse of discretion in the trial court’s assessment of attorney’s fees against the husband. See Jones v. Cockayne, 380 So.2d 1081 (Fla. 1st DCA 1980).

AFFIRMED.

ROBERT P. SMITH, Jr., C. J., and LARRY G. SMITH and WIGGINTON, JJ., concur.


text:
    James W. TATUM, Appellant, v. Mary Ann TATUM, Appellee.
    No. AB-482.
    District Court of Appeal of Florida, First District.
    Feb. 4, 1982.
    Frank E. Sheffield, Tallahassee,- for appellant.
    Stanley Bruce Powell of Powell, Powell & Powell, Niceville, for appellee.
   PER CURIAM.

AFFIRMED. Hodge v. Hodge, 409 So.2d 230 (Fla. 1st DCA 1982).

ROBERT P. SMITH, Jr., C. J., and LARRY G. SMITH and WIGGINTON, JJ., concur.