author: LETTS, Judge.

text:
    STATE of Florida, Appellant, v. Kayne OPPERT, Appellee.
    No. 79-744.
    District Court of Appeal of Florida, Fourth District.
    March 5, 1980.
    Rehearing Denied April 9, 1980.
    Jim Smith, Atty. Gen., Tallahassee, and Glenn H. Mitchell, Asst. Atty. Gen., West Palm Beach, for appellant.
    Marsha G. Madorsky of Sandstrom & Haddad, Fort Lauderdale, for appellee.
   LETTS, Judge.

The State appeals an order of discharge entered because of the passage of 90 days after a defense granted continuance with no specific waiver of speedy trial. We reverse.

The waters in this area are muddy indeed and we have already partially certified the question now before us to the Supreme Court. See Fluellen v. Butterworth, 372 So.2d 943 (Fla. 4th DCA 1979).

With the utmost of respect we would repeat our apprehensions voiced in State v. Reese, 359 So.2d 33 (Fla. 4th DCA 1978) to the effect that the Supreme Court ruling in Negron v. State, 306 So.2d 104 (Fla.1975) is based on an inapplicable construction of Rule 3:191(d)(3) of the Florida Rules of Criminal Procedure.

In the meantime, in State v. Kurtz, 354 So.2d 890 (Fla. 4th DCA 1978) cert. den. 360 So.2d 1249 (Fla.1978) this court held that when a defendant “files a motion for [a] continuance of his trial and the motion is granted, then the Speedy Trial Rule no longer applies except to the limited extent of Rule 3.191(d)(3).” If this ruling in Kurtz is correct, it means that a defense motion for a continuance operates in and of itself as a specific waiver of speedy trial. As a consequence if the Supreme Court ruling in Coppola v. State, 337 So.2d 779 (Fla.1976) is still the law, then there was no requirement for the defendant to be brought to trial within 90 days. See also Humphrey v. State, 369 So.2d 1032 (Fla. 4th DCA 1979) and. State v. Duda, 368 So.2d 918 (Fla. 4th DCA 1979).

It is therefore our conclusion that this cause must be reversed and the appellant brought to trial.

REVERSED AND REMANDED.

ANSTEAD and HERSEY, JJ., concur.


source: Caselaw Access Project

author: SCHEB, Judge.

license: Public Domain

text:
    Richard BRAINARD, Appellant, v. STATE of Florida, Appellee.
    No. 79-1933.
    District Court of Appeal of Florida, Second District.
    March 5, 1980.
    Jack O. Johnson, Public Defender, and David A. Davis, Asst. Public Defender, Bar-tow, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Robert J. Landry, Asst. Atty. Gen., Tampa, for appellee.
   SCHEB, Judge.

Richard Brainard pled nolo contendere to possession of more than 100 pounds of cannabis, possession of more than 100 pounds of resin of cannabis with intent to sell, and importation of cannabis in violation of Sections 893.13(l)(a)(2), 893.13(l)(c) and 893.-13(l)(d), Florida Statutes (1979). The trial court adjudged him guilty of all three charges and sentenced him to concurrent ten-year prison terms on the two possession offenses. The court, however, declined to sentence Brainard on the importation offense on the ground it was part of the same transaction as the possession offenses. Brainard contends that his sentence for possession of more than 100 pounds of cannabis was illegal. He argues that the offense was a lesser-included offense of possession of more than 100 pounds of resin of cannabis with intent to sell because all offenses involved the same cannabis. We agree.

At the outset we note that Brainard did not properly reserve the right to appeal the sentence. Nevertheless, since he challenges the legality of the sentence, we will address it. Kohn v. State, 289 So.2d 48 (Fla.3d DCA 1974); Williams v. State, 280 So.2d 518 (Fla.3d DCA 1973).

Possession of resin of cannabis is the same as possession of cannabis because cannabis is defined as including the resin extracted from any part of the plant. § 893.02(2), Fla.Stat. (1979). Further, possession is a category three lesser-included offense of possession with intent to sell. Brown v. State, 206 So.2d 377 (Fla.1968); Purvis v. State, 370 So.2d 32 (Fla.2d DCA 1979). Thus, the court erred in sentencing Brainard for possession of more than 100 pounds of cannabis as well as possession of more than 100 pounds of resin of cannabis with intent to sell. § 775.021(4), Fla.Stat. (1979); Ennis v. State, 364 So.2d 497 (Fla.2d DCA 1978).

Just as we addressed the legality of the sentence imposed on Brainard on the possession charges, we consider whether the trial court erred in failing to sentence him on the charge of importing cannabis. Importation is a crime independent of possession. §§ 893.13(l)(d), (l)(a)(2), Fla.Stat. (1979). Thus, the trial court should have imposed a separate sentence for this offense. Id. § 775.021(4); Fundak v. State, 362 So.2d 295 (Fla.2d DCA 1978).

Accordingly, we affirm Brainard’s convictions of possession of more than 100 pounds of resin of cannabis with intent to sell and importation of cannabis, and vacate the conviction and sentence for possession of more than 100 pounds of cannabis. We remand and direct the trial court to impose a separate sentence for the importation conviction. Such sentence, however, cannot cause the total sentence to exceed the ten-year prison cap which was a part of the plea bargain accepted by the court.

BOARDMAN, Acting C. J., and CAMPBELL, J., concur.


author: PER CURIAM.

text:
    Anthony Walter CAPPETTA, Appellant, v. The STATE of Florida, Appellee.
    No. 79-1549.
    District Court of Appeal of Florida, Third District.
    March 11, 1980.

      A. John Goshgarian, Miami, for appellant.
    Jim Smith, Atty. Gen. and James H. Greason, Asst. Atty. Gen., for appellee.
    ■ Before BARKDULL and BASKIN, JJ., and EZELL, BOYCE F., Jr. (Ret.), Associate Judge.
   PER CURIAM.

Defendant, Anthony Cappetta, appeals the denial of his motion to dismiss information as being vague, indefinite and over-broad.

Cappetta was informed against for conspiracy to commit robbery and/or burglary. The information alleged that the conspiracy occurred “between the 1st day of May, 1979 and the 29th day of May, 1979”. Subsequently, the prosecution filed a statement of particulars pursuant to Fla.R.Crim.P. 3.140(n) and again stated “the alleged offenses occurred between May 1 and May 29, 1979”. Cappetta moved to dismiss the information on the ground that the time period in which the alleged conspiracy occurred as set forth in both the information and statement of particulars was so vague, indefinite and overbroad as to mislead and embarrass him in the preparation of his defense. Following a hearing, the trial judge denied the motion to dismiss. Thereupon, Cappetta entered a plea of nolo con-tendere and reserved his right to appeal. The trial judge accepted the plea, placed him on probation and imposed a $1,000 fine. Cappetta then filed the instant appeal from the order denying his motion to dismiss the information.

Conspiracy is an offense which especially demands the application of the rule that an information or indictment state, with as much certainty as the nature of the case will permit, the facts which constitute the crime intended to be charged. See 16 Fla.Jur.2d Criminal Law § 1553 (1979) and cases cited therein. The law has therefore become well established that if the crime of conspiracy has been alleged to have occurred between certain specified dates (as in the instant case between May 1 and May 29) then the information or indictment must allege that the conspiracy was continuing throughout that specified period or that the conspiracy commenced at the beginning of that period and was not accomplished until the end. See State v. Dayton, 215 So.2d 87, 89 (Fla. 3d DCA 1968); Glasgow v. State, 292 So.2d 370 (Fla. 4th DCA 1974); and State v. Barnett, 344 So.2d 863 (Fla. 2d DCA 1977). See also Fla.R.Crim.P. 3.140(d)(3). The information in the case at bar fails to allege either that the conspiracy continued through the period of May 1st— May 29th or commenced on May 1st and was not accomplished until May 29th. Thus, we conclude the information was insufficient as a matter of law and Cappetta’s motion to dismiss should have been granted.

Accordingly, the information is hereby dismissed and the order placing Cappetta on probation and fining him $1,000 is revoked.

Reversed.

      . See Fla.R.Crim.P. 3.172(C)(iv).


author: SHARP, Judge. DAUKSCH, Chief Judge,

text:
    COLONIAL PENN INSURANCE COMPANY and John Larocca, Petitioners, v. Eleanor Gallaghler BLAIR, Robert Blair, her husband and Pauline Schwarzmann, Respondents.
    No. 79-134.
    District Court of Appeal of Florida, Fifth District.
    March 12, 1980.
    Chobee Ebbets of Smalbein, Eubank, Johnson, Rosier & Bussey, P. A., Daytona Beach, for petitioners.
    Raymond A. Haas of Haas, Boehm & Brown, P. A., Orlando, for respondents.
   SHARP, Judge.

The petitioners, Colonial Penn Insurance Company and John Larocca seek review by common law certiorari of an interlocutory discovery order entered by the trial judge dated August 21, 1979, which denied the petitioners’ Request to Produce Transcript on the authority of McGee v. Cohen, 57 So.2d 658 (Fla. 1952). We grant the petition for certiorari, quash the discovery order, and remand for further proceedings consistent herewith.

The petitioners filed a Request to Produce the transcript of a traffic- court proceeding concerning the accident involved in the present litigation. John Larocca, one of the petitioners, and a defendant in this case, gave testimony in the proceeding about the accident. He was apparently charged with a traffic offense as a result of the accident. The attorney for the plaintiff had a court reporter present at the hearing who transcribed selected portions of the proceeding, including John Larocca’s testimony. The hearing was not recorded or transcribed by the traffic court or any parties. The plaintiff objected to the production of the transcript, claiming it was privileged as “work-product” of counsel.

The petitioners urge that the transcript is not within the “work-product” privilege, but even if it is, it is obtainable under Rule 1.280 of the Florida Rules of Civil Procedure. The petitioners made no attempt to meet the additional showings set forth in Rule 1.280(b)(2) to obtain the transcript, as would be necessary if it were shielded by the “work-product” privilege:

. a party may obtain discovery of documents and tangible things . only upon a showing that the party seeking discovery has need of the materials in the preparation of his case and that he is unable without undue hardship to obtain the substantial equivalent of the material by other means.

However, it is clear from the facts the respondents have the unique and sole transcript of the traffic court proceeding, which the petitioners cannot obtain in any other manner; and it is also obvious that the petitioners need the transcript to prepare their defense in the present law suit, the memories of the parties being a poor and possibly fallible substitute for statements made close in time to the accident.

This Court has jurisdiction to review the interlocutory order rendered in connection with the discovery proceedings where the order complained of does not conform to the essential requirements of law, and may cause material injury to the parties seeking discovery in the preparation and defense of the case, for which remedy by appeal would be inadequate. Goodyear Tire & Rubber Co. v. Cooey, 359 So.2d 1200 (Fla. 1st DCA 1978); Zuberbuhler v. Division of Administration, 344 So.2d 1304 (Fla. 2d DCA 1977), cert. denied 358 So.2d 135 (Fla. 1978); Allstate Insurance Company v. Gibbs, 340 So.2d 1202 (Fla. 4th DCA 1976), cert. denied 354 So.2d 980 (Fla. 1977).

The transcription of portions of the traffic court proceeding does not fall within one of the “work-product” categories:

. . .personal views of any attorney as to how and when to present evidence, his evaluation of its importance, his knowledge of which witnesses will give certain testimony, personal notes and records as to witnesses, jurors, legal citations, proposed arguments, jury instructions, diagrams and charts he may refer to at trial for his convenience, but not to be used as evidence.

Reynolds v. Hofmann, 305 So.2d 294, 295 (Fla. 3rd DCA 1974).

To bring something within the “work-product” ambit, there must be some indication of personal thought, views, knowledge, or evaluation by the attorney, litigant, or agent. Surf Drugs, Inc. v. Vermette, 236 So.2d 108 (Fla. 1970). The petitioners are not seeking here the attorney’s summary or notes of the traffic court proceedings, but rather a transcript of the proceeding made by a court reporter. It is obtainable pursuant to Rule 1.350 of the Florida Rules of Civil Procedure, and the petitioners’ Request to Produce should have been granted by the lower court.

Petition for Certiorari granted; denial of Request to Produce quashed; and remanded for proceedings consistent herewith.

CROSS, J., concurs.

DAUKSCH, C. J., dissenting with opinion.

DAUKSCH, Chief Judge,

dissenting:

I respectfully dissent.

In my opinion, we do not have jurisdiction to hear this matter and we should wait until the case is concluded at the trial level before we review any alleged errors. For all we know, the petitioner here may win the case below and the whole question would be moot. There are many decisions of trial courts regarding discovery matters with which we may disagree but which later may turn out to be either moot or not reversible error. For us to take jurisdiction in this case signals a relaxation of well established and well reasoned hands-off policies of our appellate courts. See United Services Automobile Association v. Byrd, 370 So.2d 1247 (Fla. 4th DCA 1979); Chalfonte Development Corporation v. Beaudoin, 370 So.2d 58 (Fla. 4th DCA 1979); Santini Brothers, Inc. v. Grover, 338 So.2d 79 (Fla. 4th DCA 1976); Siegel v. Abramowitz, 309 So.2d 234 (Fla. 4th DCA 1975); Wright v. Sterling Drugs, Inc., 287 So.2d 376 (Fla. 2d DCA 1973), cert. denied 296 So.2d 51 (Fla. 1974).


text:
    Colleen K. PAUL, Appellant, v. ALLSTATE INSURANCE COMPANY, etc., and Bernard Jerome Dooley, Appellees.
    No. 79-1856.
    District Court of Appeal of Florida, Second District.
    March 12, 1980.
    Donald M. Spangler, of Anderson & Spangler, St. Petersburg, for appellant.
    Steven C. Ruth, of Piper, Esteva, Karvo-nen & Lewis, St. Petersburg, for appellees.
   PER CURIAM.

Colleen K. Paul appeals from a cost judgment awarded in favor of defendants, Allstate Insurance Company and Bernard Jerome Dooley. The cost judgment included costs incurred by the defendant for copies of a deposition of a witness. This portion of the judgment for costs was error. Florida Greyhound Lines v. Jones, 60 So.2d 396 (Fla.1952); Ryan v. Beucher, 360 So.2d 15 (Fla. 2d DCA 1978). While we agree with the reasoning of our sister court of appeal in Moore v. Caughey, 368 So.2d 109 (Fla. 4th DCA 1979), we nonetheless are bound by Jones.

The cost judgment is affirmed in all other respects. Reversed in part and affirmed in part.

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


author: SCHEB, Acting Chief Judge.

text:
    B & B DRUGS ST. PETERSBURG, INC., a Florida Corporation, B & B Drugs Clearwater, Inc., a Florida Corporation, and B & B Drugs Gulfport, Inc., a Florida Corporation, Appellants, v. McKESSON & ROBBINS DRUG COMPANY, Appellee.
    No. 79-1080.
    District Court of Appeal of Florida, Second District.
    March 14, 1980.

      Lee S. Damsker of Gordon & Maney, Tampa, for appellants.
    Kenneth W. Wright, Orlando, for appel-lee.
   SCHEB, Acting Chief Judge.

In proceedings supplemental to execution, the trial court voided a transfer of goods from Jack Kasper to B & B Holding Company and, in turn, to B & B Drugs of St. Petersburg, Inc., on the ground that the transfer was made to defraud creditors. Appellants argue that the court erred in making this determination without first obtaining jurisdiction over Kasper. We agree and reverse.

Jack Kasper foreclosed a security agreement against the inventory of Acorn Drugs. He sold the inventory to B & B Holding Company, which issued a note and security agreement in return. B & B Holding, in turn, transferred the goods to B & B Drugs.

Subsequently, appellee, McKesson & Robbins Drug Company, obtained a judgment against Acorn Drugs. When it was unable to satisfy the judgment, McKesson initiated proceedings supplementary to execution and sought to examine Acorn under oath. McKesson contended that Acorn had fraudulently transferred assets to B & B Drugs to carry on its business under a new name. Therefore, it also sought an order to prevent B & B Drugs from transferring the drug inventory except in the ordinary course of its business.

Recognizing that their interests might be affected by any subsequent orders, the trial court impleaded the three appellant corporations as well as Kasper. In addition, it issued an order directing each of them to show cause why the transfers of the drug inventory should not be declared fraudulent and voided.

Kasper was never served and did not appear in the proceedings, however. Despite this, the court held that his transfer of the inventory to B & B Holding, as well as its transfer to B & B Drugs, was made to defraud Acorn’s creditors. The court went on to declare that the B & B corporations were the alter egos of Acorn and subjected the drug inventory acquired by B & B Drugs to the claims of McKesson, Acorn’s judgment creditor.

This cause is analogous to Ryan’s Furniture Exchange, Inc. v. McNair, 120 Fla. 109, 162 So. 483 (1935). There, H. C. Richard acquired the personal property of Ryan Brothers, Inc. at a sheriff’s sale and subsequently sold the property to Ryan’s Furniture Exchange, Inc. Later, McNair, as receiver of Putnam National Bank, filed an affidavit for proceedings supplementary to execution on a judgment against Ryan Brothers, but did not make Richard a party to the supplementary proceedings. The trial court held that Ryan’s Furniture Exchange was a mere continuation of Ryan Brothers, and that all of the stock of Ryan’s Furniture Exchange was the property of Ryan Brothers. The court set aside the transfers of the property to Ryan’s Furniture Exchange holding that they were made without consideration and with an intent to defraud Ryan Brothers’ creditors. Id., 162 So. at 485. On appeal, the supreme court quashed the order of the trial court because it had denied Richard due process of law by not making him a party to the supplementary proceedings and giving him an opportunity to present his position.

In the case under consideration, Acorn argues that even though the trial court did not make Kasper a party to the supplementary proceedings, it did not violate his due process rights because it did not adjudicate any property interest of his. McNair made the same argument in the companion case to Ryan’s Furniture Exchange, Inc., when he attacked Richard’s petition for writ of certiorari. Richard v. McNair, 121 Fla. 733, 164 So. 836 (1935). McNair contended that Richard, by his sale to Ryan’s Furniture Exchange, had already parted with his claim to all of the property affected by the order in the supplementary proceedings. The supreme court disagreed, noting that although Richard had, in fact, sold the property to Ryan’s Furniture Exchange, it had not paid a substantial portion of the purchase price. The court stated that Richard’s ability to collect the balance depended on the validity of the judgment which the trial court had declared to be void in the supplementary proceedings. Similarly, in the present case, Kasper sold the drug inventory to B & B Holding Company for $50,000 and received a note in exchange.

Thus, the trial court denied Kasper due process of law by invalidating his transfer of the goods to B & B Holding without first affording him an opportunity to present his position. As it now stands, B & B Holding remains liable on its note to Kasper. Although it appears that B & B Holding may have a defense of lack of consideration and illegality against Kasper should he choose to attempt to collect on the note, it might not have these defenses against a holder in due course. § 673.305, Fla.Stat. (1979); 6 Fla.Jur.2d Bills and Notes §§ 468-69 (1978). Consequently, the protection of B & B Holding’s interest also required that the court obtain jurisdiction over Kasper.

Accordingly, we reverse the order of the trial court and remand for further proceedings consistent with this opinion.

OTT and CAMPBELL, JJ., concur.

      . B & B Drugs had essentially the same stockholders, officers and location as Acorn Drugs. Further, Jack Kasper was the father of one of Acorn’s stockholders.

      . The record contains a copy of the note but no indication that it has not been paid. Nevertheless, B & B Holding stated that the note has not been satisfied and McKesson has not presented contradictory evidence.


author: CAMPBELL, Judge.

text:
    STATE of Florida, Appellant, v. Faye BOOKER, Appellee. STATE of Florida, Appellant, v. James A. BRYANT, Appellee.
    Nos. 79-1312, 79-1570.
    District Court of Appeal of Florida, Second District.
    March 14, 1980.

      Jim Smith, Atty. Gen., Tallahassee, and William I. Munsey, Jr., and Michael J. Kot-ler, Asst. Attys. Gen., Tampa, for appellant.
    Jack 0. Johnson, Public Defender, Bar-tow, and Karal B. Rushing, Asst. Public Defender, St. Petersburg, for appellees.
   CAMPBELL, Judge.

Faye Booker and James A. Bryant were charged with possession of heroin by an information filed in the Pinellas County Circuit Court. Booker and Bryant both pleaded not guilty and filed motions to suppress, which were granted by the trial court. The state appeals contending that the trial court erred in finding no probable cause for the arrests of Booker and Bryant. We agree and reverse.

On February 22,1979, Booker and Bryant approached Sam Coleman, a police narcotics purchaser and informer. Bryant told Coleman that they had some heroin and inquired whether Coleman was interested in purchasing some of it. Bryant showed Coleman a yellowish-brown envelope containing numerous foil packets, which Bryant then gave to Booker. Coleman knew from his experience as a narcotics purchaser that heroin was commonly packaged in such foil packets and he informed his contact with the St. Petersburg Police Department that Booker and Bryant were in possession of heroin. On the basis of Coleman’s observation, the police arrested Booker and Bryant. Heroin was found on Booker during a search incident to the arrest.

The trial court determined that Coleman’s observation of the foil packets was insufficient to establish the necessary probable cause to support the arrests and granted both motions to suppress. The court reasoned that if the arrests were invalid, the searches of the defendants incident to those arrests had to be invalid as well.

We hold that there was probable cause to arrest Booker and Bryant. First, the trial court was incorrect in ruling that Coleman’s observation of the foil packets was insufficient to establish probable cause. See State v. Redding, 362 So.2d 170 (Fla.2d DCA 1978). Second, the court failed to take into consideration Bryant’s statement to Coleman that they had “boy” for sale, “boy” being the common street term for heroin. The combination of Coleman’s observation and Bryant’s statement to Coleman gave the police probable cause to make the arrests. The arrests were therefore valid. Since the heroin was discovered during the course of a search incident to a lawful arrest, the trial court erred in granting the motions to suppress.

In light of this opinion, we find it unnecessary to consider the state’s argument that Bryant had no standing to contest the search of Booker.

REVERSED AND REMANDED.

SCHEB, Acting C. J., and OTT, J., concur.


text:
    Leslie Faye GARITSON, Appellant, v. Anna Marie RIFENBURG, d/b/a Anna Marie’s Coffee Shop and Cosmopolitan Mutual Insurance Company, Appellees.
    No. RR-37.
    District Court of Appeal of Florida, First District.
    March 17, 1980.
    Richard H. Gaunt, Jr., of the law office of Frank G. Cibula, Jr., West Palm Beach, for appellant.
    Albert P. Massey, III, of Pyszka, Kessler & Adams, Fort Lauderdale, for appellees.
   PER CURIAM.

The deputy commissioner ruled that the carrier was not responsible for the claimant’s past medical treatment because there was no request for medical benefits. The record does not support this finding. The claimant, in her claim letter and at the commencement of the hearing, requested the payment of past medical bills and future medical attention. The carrier never controverted these payments, but relied upon the general defense that the claim was not compensable. The record supports no conclusion other than that the claimant saw a doctor of her choice at the employer’s suggestion. The issue of compensability having been decided in favor of the claimant and the medical bills having never been controverted, said bills are the responsibility of the carrier. The deputy’s ruling to the contrary is reversed.

We note additional error in the deputy commissioner’s failure to rule on the claim for temporary partial disability benefits from June 13, 1979 through July 11, 1979. This issue was ripe for adjudication and properly before the deputy. The order is accordingly reversed on this point and the cause is remanded to the deputy with directions that he enter an order consistent with this opinion. Action Pool Builders, Inc. v. Grant, IRC Order 2-3743 (March 23, 1979).

ERVIN, SHIVERS and SHAW, JJ., concur.


text:
    Arturo Antonio SACASAS, Appellant, v. The STATE of Florida, Appellee.
    No. 78-1971.
    District Court of Appeal of Florida, Third District.
    March 18, 1980.
    Orr, Nathan & Williams and Douglas L. Williams, Miami, for appellant.
    Jim Smith, Atty. Gen., and Anthony C. Musto, Asst. Atty. Gen., for appellee.
    Before HENDRY and HUBBART, JJ., and CHAPPELL, BILL G., Associate Judge.
   PER CURIAM.

Affirmed on the authority of Vinales v. State, 374 So.2d 570 (Fla. 3d DCA 1979). See Lucas v. State, 376 So.2d 1149 (Fla. 1979); Carey v. State, 349 So.2d 820 (Fla. 3d DCA 1977), cert. den., 354 So.2d 979 (Fla. 1977); Coulson v. State, 342 So.2d 1042 (Fla. 4th DCA 1977).


author: PER CURIAM. HUBBART, Judge

text:
    Aly Khan BANKS, Appellant, v. The STATE of Florida, Appellee.
    No. 78-2311.
    District Court of Appeal of Florida, Third District.
    March 18, 1980.
    Bennett H. Brummer, Public Defender, and Elliot H. Scherkér, Asst. Public Defender, for appellant.
    Jim Smith, Atty. Gen., and Anthony C. Musto, Asst. Atty. Gen., for appellee.
    Before BARKDULL, HUBBART and SCHWARTZ, JJ.
   PER CURIAM.

Affirmed.

HUBBART, Judge

(dissenting).

I must respectfully dissent. In my view, the state’s evidence at trial was unsatisfactory concerning the identity of the defendant as the perpetrator of the two robberies for which he was convicted in the trial court. I would, accordingly, reverse the convictions under review and remand the cause for a new trial based on the authority of Clark v. State, 98 Fla. 874, 124 So. 446 (1929), and Ross v. State, 190 So.2d 187 (Fla. 3d DCA 1966).

My conclusion in this respect is supported by the results of a polygraph examination administered to the defendant subsequent to trial which indicated that the defendant was innocent of the robberies for which he stands convicted. This disturbing evidence was, in my view, properly admitted by the trial court at the hearing on the motion for new trial as the state and the defense stipulated, in effect, to its admissibility. Codie v. State, 313 So.2d 754 (Fla.1975); State v. Brown, 177 So.2d 532 (Fla. 2d DCA 1965). The state’s initial attempt to limit such evidence to sentencing made no sense, as the trial court properly observed, and thereafter the state acquiesced without objection to the admission of such evidence on the motion for new trial.

We witness, I am afraid, another probable miscarriage of justice based on the mistaken eye witness identification of a stranger by the victim of a violent crime. This is not the first such instance of injustice in this country and is unlikely to be the last. E. Borchard, Convicting the Innocent 367 (1932); Wigmore, Science of Judicial Proof §§ 250-254 (3d ed. 1937); J. Frank & B. Frank, Not Guilty 61-63 (1957).

I would reverse and remand for a new trial.


author: BARKDULL, Judge. SCHWARTZ, Judge

text:
    Morton FRIEDMAN, Appellant, v. MUTUAL BROADCASTING SYSTEM, INC., and Larry King and WIOD, Appellees.
    No. 79-1217.
    District Court of Appeal of Florida, Third District.
    March 18, 1980.
    Alan Goldfarb and Joel Lumer, Miami, for appellant.
    Steel, Hector & Davis and Dean C. Col-son, Smathers & Thompson and Earl D. Waldin, Jr., Miami, for appellees.
    Before BARKDULL, SCHWARTZ and BASKIN, JJ.
   BARKDULL, Judge.

The appellant brought a five-count complaint against WIOD and Mutual Broadcasting Co., and an individual known as Larry King, as an outgrowth of a transaction in which the plaintiff had advanced money to King ostensibly for King to promote a cartoon product created by the plaintiff.

At the time the plaintiff and defendant, King, entered into their initial arrangements, King was employed by WIOD as the host of a talk show. Subsequently, he became employed by Mutual in a similar capacity. In the first count, plaintiff sought recovery against WIOD and Mutual for fraud and deceit, allegedly on the theory of respondeat superior. Counts two and three are not applicable to this appeal. In count four, the plaintiff sought recovery for alleged emotional distress, and in count five proceeded on a theory of negligent hiring. We affirm.

As to the first count, there were not acts alleged which demonstrated that the conduct of King, in agreeing with Friedman to promote his cartoon character for monies to King, was in furtherance of the employer’s business or was within the responsibility of the duties King was to exercise for the employer. In this connection, see: Reece v. Ebersbach, 152 Fla. 763, 9 So.2d 805 (1942); City of Miami v. Simpson, 172 So.2d 435 (Fla.1965); Nettles v. Thornton, 198 So.2d 44 (Fla.1st DCA 1967); Jones v. City of Hialeah, 368 So.2d 398 (Fla.3d DCA 1979). The Supreme Court, in considering the issue of liability of the master for the acts of the servant, stated as follows in City of Miami v. Simpson, supra:

“. . . The liability of a master can arise in such instances only when the act of the servant is done within the real or apparent scope of the master’s business. The master’s liability does not arise when the servant steps aside from his employment to commit the tort or does the wrongful act to accomplish some purpose of his own. If the tort is activated by a purpose to serve the master or principal, then he is liable. Otherwise he is not.

There was no cause of action for emotional distress, because there was in fact no impact or independent tort or willful and wanton conduct on the part of King that would have made his employer liable. In this connection, see: Kirksey v. Jernigan, 45 So.2d 188 (Fla.1950); Slocum v. Food Fair Stores of Florida, Inc., 100 So.2d 396 (Fla.1958); Brooks v. South Broward Hospital District, 325 So.2d 479 (Fla.4th DCA 1975); Steiner and Munach v. Williams, 334 So.2d 39 (Fla.3d DCA 1976); Gellert v. Eastern Air Lines, Inc., 370 So.2d 802 (Fla.3d DCA 1979). In Gellert v. Eastern Air Lines, Inc., supra, this court, in considering the question of a claim for damages based on emotional distress, held:

“Under the decisions dealing with recovery for intentional infliction of severe mental distress, recovery therefor is proper only when the causatory conduct is deliberately done with intent to so harm the person, and is of such wanton and outrageous character as would constitute conduct that would warrant the allowance of punitive damages (Kirksey v. Jer-nigan, supra), and constitutes conduct that exceeds all bounds which could be tolerated by society; and is of a nature especially calculated to cause mental damage of a serious kind.”

As to the negligent hiring, there were no facts pled which would have put WIOD or Mutual on notice of the propensities of King to defraud the plaintiff and, further, the acts of King were not done in furtherance of the employer’s business nor within the scope of his responsibilities.

Therefore, the final order of the trial judge, dismissing the second amended complaint, be and the same is hereby affirmed.

Affirmed.

SCHWARTZ, Judge

(dissenting).

The exact and only activity the corporate appellees hired King to perform as a radio talk show host was, simply enough, to talk, to make such statements as he desired over the air in order to fill the allotted time. Since this is the case, I believe that the defendants may be held vicariously responsible for King’s oral misrepresentations during the course of that work, even if, as the complaint indeed demonstrates, they were made to serve only his own personal purposes. The applicable principle, as to which the tort of fraud differs from those involved in the cases cited in the majority opinion, was recognized and applied by the supreme court in Industrial Ins, Co. of New Jersey v. First National Bank of Miami, 57 So.2d 23, 26 (Fla.1952):

We decided long ago, in Aetna Ins. Co. v. Holmes, 59 Fla. 116, 52 So. 801, 802, that “ ‘The acts of an agent, performed within the scope of his real or apparent authority, are binding upon his principal’ ” and further that “ ‘The public have a right to rely upon an agent’s apparent authority, and are not bound to inquire as to his special power, unless the circumstances are such as to put them upon inquiry.’ ” The court was quoting charges which it approved.
In the Restatement of the Law of Agency, we find, Sec. 261, that “ ‘A principal who puts an agent in a position that enables the agent, while apparently acting within his authority, to commit a fraud upon third persons is subject to liability to such third persons for the fraud.’ ” In the following section of the same work [Sec. 262] appears the statement that “ ‘A person who otherwise would be liable to another for the misrepresentations of one apparently acting for him, under the rule stated in Sec. 261, is not relieved from liability by the fact that the apparent agent acts entirely for his own purposes, unless the other has notice of this.’ ” [emphasis supplied]

Accord, Phillips Petroleum Co. v. Royster, 256 So.2d 559 (Fla.1st DCA 1972). That this rule is directly applicable to the media situation involved in this case is demonstrated by Restatement (Second) of Agency § 247 (1957), which similarly states that

A master is subject to liability for defamatory statements made by a servant acting within the scope of his employment, or, as to those hearing or reading the statement, within his apparent authority. [emphasis supplied]

Comment c to this section is directly on point here:

[O]ne who appears to have authority to make statements for the employer gives to his statements the weight of the employer’s reputation. For this reason, the liability of the master may be based upon apparent authority. The motive of the spokesman and the position he holds are therefore immaterial if the master has apparently designated him to speak. In this respect there is a close analogy between defamation, deceit and the principal’s liability upon contracts, in all of which liability may be based upon apparent authority and in none of which is the intent to serve the master or other principal determinative. See § 262. [emphasis supplied]

I also disagree with the court’s conclusion that the complaint is insufficient on the alternative, “negligent hiring” theory. In my view, the allegations as to King’s past derelictions adequately state such a claim under the principles stated in McArthur Jersey Farm Dairy, Inc. v. Burke, 240 So.2d 198 (Fla.4th DCA 1970).

For these reasons, I would reverse the judgment below.

      . Count II remains pending against King individually. Count III was an action for defamation, which was voluntarily dismissed by plaintiff.

      . We have entertained this appeal because, even though it is a partial dismissal rather than a dismissal in its entirety, the counts dismissed are independent, several and distinct. See: Mendez v. West Flagler Family Association, Inc., 303 So.2d 1 (Fla.1974).


text:
    In re ESTATE of Anna A. STERLINE, Deceased. BOROUGH OF LEWISBERRY, Borough of New Cumberland and New Cumberland Library, Appellants, v. Sylvester P. ADAIR, Appellee.
    No. 79-1302.
    District Court of Appeal of Florida, Third District.
    March 18, 1980.

      Richard M. White and Wesley F. White, Miami, for appellants.
    Sylvester P. Adair, Homestead, in pro. per.
    Before HENDRY, HUBBART and SCHWARTZ, JJ.
   PER CURIAM.

Affirmed. In re Estate of Ryecheck, 323 So.2d 51 (Fla.3d DCA 1975); In re Estate of DuVal, 174 So.2d 580, 589 (Fla.2d DCA 1965); In re Estate of Dean, 144 So.2d 65 (Fla.2d DCA 1962); § 733.617(1), Fla.Stat. (1979).


text:
    INDUSTRIAL FIRE AND CASUALTY INSURANCE COMPANY, Appellant, v. Sybil WILLIAMS and Janie Taylor, Appellees.
    No. 79-1362.
    District Court of Appeal of Florida, Third District.
    March 18, 1980.
    Corlett, Merritt, Killian & Sikes and Gerald E. Rosser, Miami, for appellant.
    Ser, DeCardenas, Levine, Busch & Allen and Edward P. Busch, Miami, for appellees.
    Before NESBITT and BASKIN, JJ., and CHARLES A. CARROLL (Ret.), Associate Judge.
   PER CURIAM.

Affirmed. Protective National Insurance Company of Omaha v. McCall, 310 So.2d 324 (Fla. 3d DCA 1975); Weathers v. Mission Insurance Company, 258 So.2d 277 (Fla. 3d DCA 1972).


author: NESBITT, Judge.

text:
    Joyce Oesterle TASH, Appellant, v. Douglas OESTERLE, Appellee.
    No. 79-1475.
    District Court of Appeal of Florida, Third District.
    March 18, 1980.

      Koppen & Watkins and Robert A. Kop-pen, Miami, for appellant.
    Militana, Militana & Militana, Miami, for appellee.
    Before HENDRY, HUBBART and NES-BITT, JJ.
   NESBITT, Judge.

This is the second appearance of this case before this court. In the previous decision, orders granting a change in child custody from the mother to the father and denying the mother’s petition for modification of child support payments were reversed.

After remand, the trial court conducted an evidentiary hearing on the mother’s petition for modification which sought an increase in child support payments, payment of accrued arrearages and attorney’s fees. The court denied the petition and the mother brings this appeal.

The parties were divorced in 1965. The mother was awarded custody of two minors and the father was ordered to pay fifteen dollars per week per child based upon his then earning capacity of $4,800 per annum. Since the older son had attained his majority, the petition sought modification for only the younger son who was, at that time, thirteen. In the interim, the parties have remarried and their respective spouses earn substantial incomes. The son lives with his mother and stepfather during the week; but with his father and stepmother on weekends. He is gifted with a high intelligence quotient and expects to attend medical school. For this reason, by mutual agreement of the parents, the son is enrolled in a private college preparatory academy which, including tuition, books and other fees, costs $4,000 per annum. This sum is paid directly by his stepmother. She also provides him with pocket money for personal use and to purchase gasoline.

The father has a net income of $16,000 per annum. He and his second wife are owners as tenants by the entirety of a home with a taxable valuation of $193,000, which is encumbered by a $69,000 mortgage. He pays monthly. mortgage installments and telephone expenses in the aggregate sum of $1,003. He has no other earnings or demonstrable assets.

The mother testified that it costs $267 per week to provide for the child’s remaining necessities. The court found that figure excessive and immediately eliminated some of the questionable “expenses” attributed to the child. In point of fact, the mother was seeking $200 per week which she admitted was indeed lavish. Whatever the son’s actual needs are, they have been paid by his stepfather. The mother concedes she would continue to enroll the son in the academy in the event the father was required to make adequate child support payments directly to her. The father admits he has made none of the required child support payments to the mother since 1975.

Evidence of the assets of the parties as well as the earnings of their respective spouses was properly admitted. Dixon v. Moody, 352 So.2d 950 (Fla.1st DCA 1977).

Ordinarily, child support arrearages become vested in the custodial parent. Petrucci v. Petrucci, 252 So.2d 867 (Fla.3d DCA 1971). Payments made for the benefit of the child may, under equitable considerations, entitle that parent to a setoff. Jimenez v. Jimenez, 309 So.2d 38 (Fla.3d DCA 1975).

This case is much like Mooty v. Mooty, 131 Fla. 151, 179 So. 155 (1938) where the father was given credit for payments for his daughter’s college education, which payments were in excess of those required under the terms of the final judgment of divorce. Consequently, we find no error in the court’s denial of the motion for payment of arrearages. Accord Stephens v. Stephens, 378 So.2d 1311 (Fla.3d DCA 1980).

The foregoing disposes of the problem of child support arrearages. We must still resolve the more difficult question of prospective child support requested by the mother in her petition for modification.

In Jelke v. Jelke, 233 So.2d 408 (Fla.3d DCA 1970), a father made child support payments beyond those required by the final judgment of divorce. The mother, who had custody of the minors, decided the excess payments were insufficient and filed a petition seeking an increase in child support. This prompted the father to terminate the voluntary support payments. This court concluded that the trial court erred in not adjusting payments in conformity with the voluntary support payments made by the father because it would not assume that such payments would be resumed if the litigation was terminated.

In this case, we have the commendable anomaly of the child being essentially supported by his stepparents. Despite this litigation, they have carried their spouses’ burden of support.

The father’s earning capacity has more than tripled since he was initially required to pay fifteen dollars per week for the son’s support. However, voluntary payments that are supplied by the father’s second wife are now in excess of five times that which he was originally ordered to pay. The record demonstrates that the cost of educating the son at the private academy together with other attendant costs far exceeds the amount to which the child support payments could be increased under the father’s present earning capacity and demonstrated assets. Moreover, in absence of his agreement to educate his son in a private academy, he might plausibly contend that the public school system is adequate.

The agreement of the parents to enroll their son in a private preparatory academy, considered in light of their limited financial ability, necessarily carries with it a tacit agreement that each would contribute to the final care and custody of their son. The substantial earnings of their respective spouses undoubtedly influenced such an agreement.

In Warrick v. Hender, 198 So.2d 348 (Fla.4th DCA 1967), that court stated:

An agreement, either express or implied, which purports to relieve a father of his duty to support a minor child entirely and permanently offends against public policy and is void. However, the mother and father may as between themselves validly agree, expressly or impliedly, that one rather than the other shall provide or procure the proper support if the best interests of the child are served thereby.

198 So.2d at 351.

Despite acrimonious litigation between the parties, their love and concern for the child’s future has worked an implied agreement that both must make sacrifices to provide him with a quality education. As we understand the trial court’s ruling, based upon interrogation it made of the parties, it ratified that implied agreement regarding their son’s support and maintenance. Warrick v. Hender, supra.

Voluntary payments continued over a significant period of time to meet specific needs do have evidentiary value tending to show recognition by the parties of increased needs of a child. Jelke v. Jelke, supra. Consequently, if there is a change of circumstances or should either of the parties terminate their support, a petition for modification will become appropriate.

Under the circumstances presented, the trial court did not abuse its discretion in denying the mother’s application for attorney’s fees. Krasner v. Krasner, 339 So.2d 674 (Fla.3d DCA 1976).

Affirmed.

      . Tash v. Oesterle, 356 So.2d 61 (Fla.3d DCA 1978).


author: HUBBART, Judge.

text:
    Steven L. VICTOR, Appellant, v. Merritt R. STIERHEIM, County Manager of Dade County, Florida, Appellee.
    No. 79-1511.
    District Court of Appeal of Florida, Third District.
    March 18, 1980.

      Steven L. Victor, in pro. per.
    Robert A. Ginsburg, County Atty., and John H. Moynahan, Jr., Asst. County Atty., for appellee.
    Before HENDRY and HUBBART, JJ., and VANN, HAROLD R. (Ret.), Associate Judge.
   HUBBART, Judge.

This is a public employee disciplinary action in which a county police officer was administratively demoted in rank, later reinstated by the county manager after a full hearing but without back pay, and subsequently denied mandamus relief by the circuit court for the forfeited back pay. The police officer appeals.

The central issue presented for review is whether the county manager had a non-discretionary duty based on this record to reinstate the demoted police officer to his former rank together with back pay. We conclude that the county manager in this case had such a duty and that the circuit court erred in denying the instant application for a writ of mandamus to enforce that duty. We, accordingly, reverse.

I

The facts of this case are virtually undisputed. The appellant, Steven L. Victor, was and is now a police sergeant for the Dade County Public Safety Department, Miami, Florida. On October 11, 1978, he was demoted to the rank of police officer by the then acting director of the Dade County Public Safety Department. In the acting director’s letter which ordered this demotion, it was alleged that the appellant had violated a number of Dade County Personnel Rules. The appellant demanded a hearing on these alleged violations contending that he was not guilty of any misconduct. An extensive evidentiary hearing was held on two separate dates by an independent hearing examiner who concluded in a written, detailed report that no evidence of misconduct in violation of county personnel rules had been adduced against the appellant and that the appellant should be reinstated to the position of police sergeant. The hearing examiner further noted that the appellant might be well advised to seek employment elsewhere in view of the adverse perception of him by several of his superior officers and cautioned the appellant not to take more than cold legal comfort from the recommendation made.

On April 6, 1979, the appellee County Manager of Dade County [Merritt R. Stier-heim], upon receipt and review of the evi-dentiary hearing record and findings of the hearing examiner, reinstated the appellant to the rank of police sergeant but without back pay. The basis for the disciplinary denial of back pay was the county manager’s conclusion that the appellant had difficulty in accommodating his intelligence and independence to the hierarchy and rigid requirements of police work. In a letter formally announcing his decision, the county manager stated as follows:

“We have received the findings and recommendations of the Hearing Examiner in the matter of your appeal from the action of the Public Safety Department in demoting you from the position of Police Sergeant.
The review of your case was extremely difficult. The simplest solution in my capacity as reviewer of the Findings of Fact would be to accept the Findings and reinstate you with full back pay. Yet, while the County failed to prove its case to the satisfaction of the Hearing Examiner, Mr. Bailey acknowledges the complexity of the issue by cautioning you from taking more than ‘cold legal comfort’ from his recommendation. You. seem to have difficulty accomodating your intelligence and independence to the hierarchy and rigid requirements of police work.
For the reasons stated above, I believe the greatest equity will be provided by reinstating you to the rank of Police Sergeant without back pay. It is my hope that you accept this decision in a spirit which will enable you to continue in a successful career with the County.”

The appellant thereafter applied for a writ of mandamus in the Dade County Circuit Court against the appellee county manager contending that the county manager on this record had no alternative but to reinstate the appellant with back pay because the appellant had in fact committed no violation of any of the Dade County Personnel Rules. The circuit court after a full hearing denied the application in a written order concluding that the county manager’s disciplinary action was within his discretion to impose based on this record. The appellant police officer appeals to this court.

II

The law is well-settled that the County Manager of Dade County in reviewing the discharge or discipline of a county employee is not bound by the findings of facts, conclusions or recommendations of the hearing examiner who, by law, is required to hear initially the employee disciplinary proceeding. The county manager clearly has the discretion to sustain, reverse, or modify any employee’s suspension, reduction in grade, dismissal or reinstatement and to impose whatever disciplinary action may be appropriate provided that the record will support such action. It is equally clear, however, that absent such a showing in the record, the county manager lacks the discretion to change or modify the findings of the hearing examiner or to impose disciplinary sanctions against the employee. A writ of mandamus lies against the county manager where he fails to perform his non-discretionary duty in such cases. State ex rel. Roberts v. Knox, 153 Fla. 165, 14 So.2d 262 (1943); Metro Dade County v. Corozzo, 212 So.2d 891 (Fla. 3d DCA 1968); McKim v. McNayr, 168 So.2d 78 (Fla. 3d DCA 1964); Hialeah v. State, 97 So.2d 198 (Fla. 3d DCA 1957); Metro Dade County Code § 2-47 (1959).

We have carefully reviewed the record of the evidentiary hearing herein together with the hearing examiner’s findings and recommendations and can find no evi-dentiary support whatever for the conclusion that the appellant violated any Dade County personnel regulation. The county manager in his disciplinary letter based his decision on the appellant’s difficulty in accommodating the latter’s intelligence and independence to the hierarchy and rigid requirements of police work. No specific act of job misconduct, however, is referred to by the county manager and our independent review of the record reveals none. Indeed, the trial court in the order under review and the county in its brief and oral argument before this court has been unable to point to a single act of job misconduct by the appellant in this record. Clearly, there is evidence that the appellant may be disliked by several of his superior officers, but that is hardly a basis upon which to impose disciplinary sanctions against a county employee. Under our civil service system, a public employee may only be disciplined for specific- acts of misconduct which breach specific employee personnel rules. As the appellant committed no such acts, the county manager had no discretion to impose disciplinary sanctions against the appellant.

In this connection, we pass no judgment on whether the appellant would be well advised to seek other employment, as the hearing examiner suggested, given the appellant’s ability, temperament and present job circumstances. Perhaps, all considered, he would be happier in a different line of work. On the other hand, superior intelligence and independence, which this appellant clearly demonstrates, is surely not incompatible with a rewarding career in police work. Indeed, these are most desirable qualities which police departments more and more demands in the new breed of police officer. See §§ 943.11-943.25, Fla. Stat. (1979). Such questions, however, are not for us to decide as only the appellant can determine whether he prefers, under the circumstances, to remain in his present employment. We decide only that being intelligent and independent, absent specific acts of misconduct which breach specific county personnel rules, can form no basis upon which to discipline a county police officer.

We accordingly, reverse the order under review and remand the cause to the trial court with directions to grant the appellant’s application for a writ of mandamus.

      . We find no procedural irregularities in the proceedings below and reject the appellant’s contentions to the contrary. Clearly, the appellant was afforded his full due process rights in the trial court.

      . We note that the appellant has ably represented himself at all stages of the proceedings below and in this court. From all appearances, a career in law would not seem beyond his grasp.


text:
    NORTHSIDE BANK OF MIAMI, a Florida Banking Corporation, Appellant, v. Jules LA MELLE and Adeline La Melle, his wife, etc., et al., Appellees.
    No. 79-1565.
    District Court of Appeal of Florida, Third District.
    March 18, 1980.
    Layne & Brill and Richard Bernstein, Miami, for appellant.
    Simon, Schindler & Tripp and Judith A. Bass, for appellees.

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

The plaintiff-mortgagee appeals a summary final judgment denying foreclosure of its mortgage. In the complaint, the plaintiff elected to accelerate the principal sum due because defendants were allegedly delinquent in making their monthly installment and had allowed the insurance on the property to lapse. The defendant-mortgagors filed an answer containing a general denial and an affirmative defense of estop-pel and unconscionability alleging that the bank had a long history of accepting late monthly installments on the mortgage. The affidavits, depositions and record of payment before the trial court completely supported the affirmative defense of uncon-scionability, New England Mutual Life Insurance Company v. Luxury Home Builders, Inc., 311 So.2d 160 (Fla. 3d DCA 1975); Koschorek v. Fischer, 145 So.2d 755 (Fla. 2d DCA 1962); Lieberbaum v. Surfcomber Hotel Corp., 122 So.2d 28 (Fla. 3d DCA 1960), and the affirmative defense of estoppel, Ford Motor Credit Company v. Waters, 273 So.2d 96 (Fla. 3d DCA 1973). Here, the failure of the mortgagors’ affidavits to be served twenty days prior to the time fixed for the hearing on their motion for summary judgment, required by Florida Rule of Civil Procedure 1.510(c), was immaterial because the same evidence was already before the court through depositions. See Wood v. Kleaveland, 64 So.2d 684 (Fla.1953). Moreover, the mortgagee failed to file any counter-affidavits in opposition to the supporting evidence that the property had been continuously insured so as to avoid the consequences of an adverse summary judgment. Connell v. Sledge, 306 So.2d 194 (Fla. 1st DCA 1975), cert. dismissed 336 So.2d 105 (Fla.1976).

Affirmed.


author: PER CURIAM. EZELL, BOYCE F., Jr. (Ret.), Associate Judge,

text:
    William D. FRANKLIN, Individually, and as Trustee and Elaine Franklin, his wife, Appellants, v. SHERWOOD PARK, LTD., INC., and Sherwood Forest, Ltd., Inc., of Hollywood, Appellees.
    No. 79-1757.
    District Court of Appeal of Florida, Third District.
    March 18, 1980.
    Salter, Yeslow & Burnstein and Myron H. Burnstein, Hollywood, for appellants.
    Joe N. Unger, Podhurst, Orseck & Parks and Joel D. Eaton, Miami, for appellees.

      Before PEARSON and SCHWARTZ, JJ., and EZELL, BOYCE F., Jr. (Ret.), Associate Judge.
   PER CURIAM.

This interlocutory appeal by the defendants is from an order which (1) denied the defendants’ motion to dismiss for lack of personal jurisdiction and (2) denied the defendants’ alternative motion to abate for improper venue. The motion to abate for improper venue should have been treated as a motion to transfer. See Ryder Leasing, Inc. v. Jorge, 168 So.2d 548 (Fla. 3d DCA 1964).

At oral argument, the defendants conceded that the point on personal jurisdiction had become moot because of subsequent personal service upon them.

The plaintiffs’ action sought to enforce a contract to convey title to real property. As such, venue was governed by the “local action” rule. See Sales v. Berzin, 212 So.2d 23 (Fla. 4th DCA 1968); and Landmark Tower Associates v. First National Bank of Chicago, 439 F.Supp. 195 (S.D.Fla. 1977). We have declined the plaintiffs’ invitation to depart from the established law in this area. The argument that the “local action” rule is without basis in modern law is, in our view, unconvincing when dealing with actions affecting the title to real property.

Affirmed in part; reversed in part; and remanded with directions to transfer the cause to Broward County.

EZELL, BOYCE F., Jr. (Ret.), Associate Judge,

dissenting.

I must respectfully dissent. In my opinion the court below properly denied Appellants’ motion to abate for improper venue. Here, Appellants were non-residents of Florida. The venue privilege afforded a defendant under Section 47.011, Florida Statutes (1977) does not apply if the defendant is a non-resident of Florida. That statutory provision is in conformity with the common law rule that a non-resident may be sued anywhere in Florida so long as the court has jurisdiction of his person. Linger v. Balfour, 102 Fla. 591, 136 So. 433 (Fla.1931). Thus, suit was properly brought in Dade County, Florida. What is referred to as “the local action rule” does not command a different result. Admittedly, under that rule, a suit seeking the transfer of title to real property is required to be brought in the county wherein the land is situated. Sales v. Berzin, 212 So.2d 23 (Fla. 4th DCA 1968). At present, Appellee sought specific performance of an option to purchase premises located in Broward County, Florida. Appellants assert that suit should have been brought in the county where the property lies, to-wit: Broward County. However, a suit to enforce specific performance of an agreement to convey land need not be brought in the county where the land lies. Morgan v. Eaton, 59 Fla. 562, 52 So. 305 (Fla.1910). The cause should thus be affirmed.


text:
    Jose GAYON, Appellant, v. Robert SILVERS et al., Appellees.
    No. 80-190.
    District Court of Appeal of Florida, Third District.
    March 18, 1980.
    Horton, Perse & Ginsberg and Edward A. Perse, Charles R. Lipcon, Miami, for appellant.
    Ress, Gomez, Rosenberg & Howland and Roland Gomez, North Miami, for appellees.
    Before SCHWARTZ and NESBITT, JJ., and CHARLES A. CARROLL (Ret.), Associate Judge.
   PER CURIAM.

We find no merit in the appellant’s claims of error. Lasky v. State Farm Ins. Co., 296 So.2d 9 (Fla.1974); Howard v. Newman, 363 So.2d 65 (Fla. 1st DCA 1978). After remand, the court is directed to enter judgment in favor of the plaintiff and against the defendants for the established amount of property damage, $1,015.04.

Affirmed as modified.


author: BERANEK, Judge.

text:
    STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, Appellant, v. Fanny NAPOLI and Edward Napoli et al., Appellees.
    No. 79-136.
    District Court of Appeal of Florida, Fourth District.
    March 19, 1980.
    Joseph S. Kashi of Grimmett, Conrad, Scherer & James, P. A., Fort Lauderdale, for appellant.
    Maurice Fixel of Meyer, Leben, Fixel & Cantor, P. A., Hollywood, for appellees.
   BERANEK, Judge.

Appellant, State Farm Mutual Automobile Insurance Company, seeks reversal of an uninsured motorist coverage award. We reverse. Appellee, a State Farm policyholder, was injured in an automobile accident with a tortfeasor who had coverage of $25,000 with Central National Insurance Company. Appellee had uninsured motorists protection coverage under two State Farm policies. These two policies provided uninsured motorists coverage of $50,000. A ruling to this effect was previously appealed to this Court by State Farm and affirmed. State Farm Mutual Automobile Insurance Company v. Napoli, 340 So.2d 935 (Fla. 4th DCA 1976).

Pursuant to an order by the trial court arbitration occurred on the uninsured motorists claim. The arbitration award set damages at $68,500. The appellee accepted $25,000 from the tortfeasor’s insurance carrier and pursued her uninsured motorist coverage against her own carrier. State Farm offered $25,000 in satisfaction of the uninsured motorist claim and appellee rejected this payment asserting a right to $50,000 in coverage.

Eventually, State Farm moved to modify the arbitration award contending that it was entitled to a full $25,000 set-off equal to the amount paid by Central National. Appellee moved to confirm the award, or, by equitable distribution, to determine State Farm’s claimed set-off. The trial court determined that State Farm was not entitled to a full $25,000 set-off but was instead entitled to set-off the Central National payment of $25,000 less appellee’s attorneys’ fees and costs of collection. In doing so the trial court erred. Dewberry v. Auto-Owners Insurance Company, 363 So.2d 1077 (Fla.1978), specifically holds that Section 627.727(1), Florida Statutes (1975), intended that the coverage of the tortfeasor be considered as a complete set-off equal to the full amount paid. To the same effect, see Jones v. Travelers Indemnity Company of Rhode Island, 368 So.2d 1289 (Fla.1979).

In Hall v. Liberty Mutual Insurance Company, 376 So.2d 1183 (Fla. 1st DCA 1979), the court was faced with an almost identical situation and in a detailed opinion ruled that the set-off was to be in the gross amount of the coverage paid by the tort-feasor’s carrier, rather than in the net amount received by the injured policyholder. We consider Hall v. Liberty Mutual Insurance Company, supra, to be disposi-tive.

The trial court also awarded attorneys’ fees and interest to appellee. Both of these awards are attacked on appeal and in view of our reversal on the set-off issues, we find it necessary to also vacate these awards and remand for further consideration. In doing so, we note that interest was properly computed from the date of the arbitration award despite the fact that it was computed on an incorrect amount. Southeast Title Insurance Company v. Austin, 202 So.2d 179 (Fla.1967).

As to the award of attorneys’ fees, appellant claims the total award of $27,800 was excessive. The litigation herein has gone on for many years and involves a prior appeal and numerous hard-fought legal issues. In reversing the attorneys’ fee award we do not determine same to have been excessive but find it necessary to remand in view of our conclusion requiring a $25,000 set-off under the rationale of Dewberry v. Auto Owners Insurance Company, supra.

The judgment below is hereby reversed and the cause is remanded to the trial court for further proceedings in which the trial court should require a set-off of $25,000 and recompute interest and attorneys’ fees.

REVERSED AND REMANDED WITH DIRECTIONS.

DOWNEY, C. J., and GLICKSTEIN, J., concur.


author: GLICKSTEIN, Judge.

text:
    Nanak SINGH, Appellant, v. Marika TOLZ, Appellee.
    No. 79-480.
    District Court of Appeal of Florida, Fourth District.
    March 19, 1980.

      Joyce Courtney Peterson of Law Office of Chesley V. Morton, Fort Lauderdale, for appellant.
    Jeffrey P. Swayman of Kaplan & Jaffe, P.A., Hollywood, for appellee.
   GLICKSTEIN, Judge.

This is a timely appeal from an order which denied appellant’s motion to alter judgment filed pursuant to Fla.R.Civ.P. 1.540(b). We affirm.

In recognition that the facts of each case are of singular importance in determining whether or not relief under RCP 1.540(b) should be granted, Edwards v. Fort Walton Beach, 271 So.2d 136,137 (Fla.1972), we shall detail them in chronological order. A complaint was filed on behalf of appellant on July 6, 1978, by an associate attorney employed by another attorney. It alleged that appellant had purchased a motel from appellee in Hollywood, Florida, pursuant to a purchase agreement attached to the pleading; that after taking possession of the premises, appellant learned that the Florida Department of Transportation had acquired part of the property which would occasion not only loss of parking in front, but also the tearing down of part of the building; that appellee was a realtor to whom DOT had paid $40,000 for that part of the property being taken; and that appellant did not receive what he paid for.

On July 18, 1978 appellee moved to dismiss the complaint upon the ground that the parties’ purchase agreement attached to the complaint expressly recited that the property being conveyed was “less or 5484/444 for rd.” which appellee translated as being the book and page number of the Official Records of Broward County where the deed to DOT had been recorded. On September 15,1978 the trial court dismissed the complaint and gave appellant twenty days to amend. A copy of the order was furnished to the employing attorney. For health reasons this attorney took a lengthy vacation from September 29 until November 7.

On October 25, 1978 appellee filed a motion to dismiss and for entry of final judgment based on appellant’s failure to file an amended complaint within the twenty days allotted. The next day, October 26, the associate filed an “Amended Complaint” which was identical, word-for-word, to the original complaint, except the purchase agreement with the above quoted language was not attached, notwithstanding the allegation that it was. Five days later, appel-lee moved to dismiss the “amended” complaint.

By late November 1978 the associate’s employment had terminated, and the employing attorney, who was now back in the office, had assigned the present case to a new associate. The latter served a motion to amend complaint and a second amended complaint on November 24th and 28th, respectively. This second amended complaint alleged that appellant was a native of India, had been in the United States, at the time of negotiations for only two months, spoke and understood little English, had no lawyer during the negotiations, and was told by appellee that he would be purchasing that which he saw. It further alleged that appellee’s warranty deed to appellant dated July 20, 1976 included all of the 1645 square feet which appellee had conveyed to the State of Florida in 1973 and claimed compensatory and punitive damages. These pleadings were not filed until December 5, 1978.

Also on December 5, the trial court entered a final judgment of dismissal against appellant “effective October 5, 1978, without leave to make further amendments thereto,” based on the running of the twenty days without amendment following its September 15 order of dismissal of appellant’s original complaint. On the following day, the new associate served a motion to alter judgment. This motion requested a rehearing to vacate, in effect, the December 5 order and to consider the second amended complaint on its merits. The motion further alleged the neglect of the original associate, the illness which precipitated the absence of the employing attorney and the present total dependence of appellant upon counsel because of his lack of familiarity with the language. The trial court denied the motion on February 6, 1979 and this appeal followed therefrom.

Our role in reviewing an order entered upon motion filed pursuant to Fla. R.Civ.P. 1.540(b) is solely to determine whether or not the trial court abused its discretion in failing to grant the. motion. We do not consider the final judgment sought to be vacated. Graham v. Eisele, 245 So.2d 682, 683 (Fla. 3d DCA 1971). We are also mindful of the following principle recited in Rogers v. First National Bank at Winter Park, 232 So.2d 377, 378 (Fla.1970):

. While our procedural rules provide for an orderly and expeditious administration of justice, we must take cáre to administer them in a manner conducive to the ends of justice.

Principles arise out of factual situations, and the facts in Rogers, supra, compelled relief. In that case two attorneys dissolved their partnership and the file stayed with the office of attorney who had not been handling the matter. We assume that a motion directed to the failure of attorneys to file an amended complaint was served upon the attorney who left the firm but not upon the attorney who retained the file. Under those facts, the supreme court ordered the vacation of dismissal.

That situation is not present in the case sub judice as appellee was in complete compliance with the procedural rules. In this case an attorney (namely, the original associate) was in custody of the file, was assumingly aware of the due date for filing an amended pleading, and apparently ignored that date. Moreover, when the passage of time was seemingly called to his attention by his opponent’s motion to dismiss, he consciously disregarded the trial court’s order to file an amended complaint and instead filed the same pleading which had been previously dismissed, save and except the attached exhibit. Given these facts, another principle is applicable; namely, that the administration of justice cannot be achieved if there is a conscious disregard of a court’s order.

We have given serious consideration to the health-occasioned absence of the employing attorney and to his diligence in attempting to remedy the harm that has befallen his client. Nevertheless, we must conclude that the absence or lack of knowledge on the part of a supervising attorney is not relevant beyond the door of his office. Otherwise, a Pandora’s Box would be opened to justify the conduct of the supervised, establishing two classes of attorneys. Such result is contrary to the basic concept of the individual responsibility of an attorney who is performing services for his client.

Finally, we are also not oblivious to the following principle we stated in Enstrom v. Dixon, 354 So.2d 1251 (Fla. 4th DCA 1978):

It is the policy in this State to freely allow amendments to pleadings in order that causes may be tried on their merits and justice may be achieved. In exercising the discretion inherent in the trial court to allow or disallow amendments, ail doubts should be resolved in favor of the former unless the privilege be abused.

That principle, however, is not applicable in a case of conscious disregard of a court’s order.

Focusing on the conduct of the attorney responsible for this case, we cannot say that the trial court abused its discretion in concluding that appellant was not entitled to relief for mistake, inadvertence, surprise, excusable neglect or any other reason permitted by Fla.R.Civ.P. 1.540(b). Accordingly, the order is affirmed.

AFFIRMED.

ANSTEAD and HERSEY, JJ., concur.

      . See also McSwiggan v. Edson, 186 So.2d 13 (Fla.1966) and E. & E. Electric Contractors, Inc. v. Singer, 236 So.2d 195 (Fla. 3d DCA 1970). But see Kuykendall v. Kuykendall, 301 So.2d 466, 467 (Fla. 1st DCA 1974).


text:
    Melvin L. JUDGE, Appellant, v. STATE of Florida, Appellee.
    No. 79-722.
    District Court of Appeal of Florida, Fourth District.
    March 19, 1980.
    Richard L. Jorandby, Public Defender, and Polly M. Shull, Asst. Public Defender, West Palm Beach, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and John D. Cecilian, Asst. Atty. Gen., West Palm Beach, for appellee.
   PER CURIAM.

Affirmed upon authority of State v. Harley, 362 So.2d 379 (Fla. 2d DCA 1978) and State v. Dalby, 361 So.2d 215 (Fla. 2d DCA 1978).

DOWNEY, C. J., and ANSTEAD and HURLEY, JJ., concur.


text:
    In the Interest of R. L. P., a child, Petitioner, v. Honorable Lawrence L. KORDA, Circuit Judge, Seventeenth Judicial Circuit, Respondent.
    No. 79-1397.
    District Court of Appeal of Florida, Fourth District.
    March 19, 1980.

      Alan H. Schreiber, Public Defender, and Steven Michaelson, Asst. Public Defender, Fort Lauderdale, for petitioner.
    Jim Smith, Atty. Gen., Tallahassee, and Glenn H. Mitchell, Asst. Atty. Gen., West Palm Beach, for respondent.
   PER CURIAM.

The petition for writ of prohibition alleges the trial court erred in failing to discharge defendant under the juvenile speedy trial rule and seeks to prohibit the trial court from exercising any further jurisdiction over the defendant. It is uncontro-verted that the juvenile defendant did not have an adjudicatory hearing within the 90-day period defined in Florida Rule of Juvenile Procedure 8.180(a).

Briefly, the trial court was of the mistaken belief at arraignment that the child had funds to hire his own attorney. On the day of adjudicatory hearing, which was the last day before speedy trial was to run, the child appeared without an attorney. The trial judge then ordered a “defense continuance” to allow time to appoint a lawyer for the child. However, the court did not enter an order specifically extending speedy trial reciting the reasons for the extension as required by Florida Rule of Juvenile Procedure 8.180(c).

As we held in In Interest of J.R.S. v. Hastings, 374 So.2d 559 (Fla. 4th DCA 1979), an oral continuance on the court’s own motion does not extend speedy trial without a finding that the interests of justice will be served by such extension and a recitation of the reasons for such extension as required by Florida Rule of Juvenile Procedure 8.180.

There is no issue concerning the continuous availability of the child for trial or that he was in any way at fault in delaying the adjudicatory hearing. We therefore must grant the child’s petition and remand the case to the trial court with instructions to discharge the child.

PETITION FOR WRIT OF PROHIBITION GRANTED.

LETTS and BERANEK, JJ., and DAUKSCH, JAMES C., Associate Judge, concur.


author: BERANEK, JOHN R., Associate Judge. ANSTEAD, HARRY LEE, Associate Judge,

text:
    Willie C. REDDICK, Appellant, v. STATE of Florida, Appellee.
    No. 77-1475/NT4-73.
    District Court of Appeal of Florida, Fifth District.
    March 19, 1980.

      Richard L. Jorandby, Public Defender, and Tatjana Ostapoff, Asst. Public Defender, West Palm Beach, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Mary E. Marsden, Asst. Atty. Gen., West Palm Beach, for appellee.
   BERANEK, JOHN R., Associate Judge.

Appellant was convicted of robbery with a firearm pursuant to Section 812.13(2)(a), Florida Statutes (1977). The trial court sentenced appellant to a term of imprisonment from three years to ten-years.

Appellant asserts the court erred in failing to give his requested charge on robbery with a weapon pursuant to Section 812.-13(2)(b), Florida Statutes (1977). Appellant contends this was a failure to give an instruction on a lesser included offense only one step removed from the offense charged. See Growden v. State, 372 So.2d 930 (Fla. 1979).

From the unrebutted testimony of two eye witnesses, the facts are as follows. An individual entered a convenience store and robbed the manager of the store of cash at gunpoint. The store manager testified that the robber used a .32 caliber black revolver with a four-inch barrel. This witness had extensive experience ,with guns. Another eye witness was also held at gun point and was absolutely certain that it was in fact a firearm. Both eye witnesses identified the defendant whom they knew personally.

The defense was one of alibi. Defendant testified he was at a relative’s home watching television. He presented the testimony of family members to this effect. The jury found defendant guilty of robbery with a firearm.

Defendant asserts error claiming no instruction was given on robbery with a weapon. Despite his defense of alibi, he argued to the trial judge that perhaps the jury would think the gun was really a stick or some other weapon which was not a firearm. Section 812.13(2), Florida Statutes (1977), establishes three categories of circumstances in subsections (a), (b), and (c) which may be involved in robbery as follows:

(a) Robbery with a firearm or other deadly weapon;
(b) Robbery with a weapon (not a firearm or deadly weapon);
(c) Robbery without any weapon or firearm.

After a close reading of the transcript, we find the defendant is incorrect in his contention that an instruction on subsection (b) was not given.

The jury was charged on “robbery with a firearm” and on the crime of “robbery” as a lesser included offense. The “robbery” instruction, contrary to the statute, did not indicate anything concerning the use of a weapon, the use of a firearm or the use of no weapon or firearm. Thus, the jury was instructed on two sets of circumstances which were not technically in accord with (b) and (c) of the statute. Under the actual charge given they could have found defendant guilty of robbery with a firearm or they could have found him guilty of simply robbery with or without a weapon. There was no prejudice because defendant had the benefit of the “robbery” instruction, which encompassed robbery with a weapon or robbery without a weapon. Admittedly the instructions improperly combined subsections (b) and (c) and a verdict of simple “robbery” might well have been deemed only a finding of guilt under subsection (c). This would have been entirely to defendant’s advantage and he should not be allowed to complain.

The case of Growden v. State, supra, is distinguishable. There, the jury was precluded from considering robbery with a weapon whereas here the instructions given adequately covered this lesser included offense as a theory of defense.

In seeking a reversal for failure to instruct on a lesser included offense, the defendant herein should not be allowed to assert error without a demonstration of prejudice. State v. Abreau, 363 So.2d 1063 (Fla.1978), and Brown v. State, 206 So.2d 377 (Fla.1968), hold that the reason for the rule of reversal despite an absence of prejudice is because of the concept of a “jury pardon.” The Brown decision is based on two statutes. It construes Section 919.14, Florida Statutes (1965), and Section 919.16, Florida Statutes (1965), as a grant to the jury of discretion to pardon the defendant by convicting him of any lesser degree of the crime charged or any lesser included offense or attempt to commit an offense. The Brown decision holds that since the jury may convict of these lesser degrees, offenses or attempts, that the court must charge on them. The statutes on which Brown is based were repealed and replaced by Rule of Criminal Procedure 3.490 relating to degrees of an offense and Rule of Criminal Procedure 3.510 relating to attempts and lesser offenses. Both Rules require the court to charge the jury accordingly. Presumptively, these two Rules now form the basis for jury pardons in Florida. Although we do not believe the Rules of Criminal Procedure should form the basis for the substantive principle of jury pardons, we need not deal with this issue herein.

The jury here was unaware that they had the pardon power and they were in fact specifically instructed to the contrary. Florida Standard Jury Instruction (Crim.) 2.16 “Verdict” provides as follows:

You may find the defendant guilty as charged in the information or guilty of such lesser included crime as the evidence may justify. (Reference to verdicts omitted).
If you return a verdict of guilty, it should be for the highest offense which has been proved beyond a reasonable doubt. If you find that no offense has been proved beyond a reasonable doubt, then, of course, your verdict must be not guilty.

This standard jury instruction was given in the instant case without objection by defendant. It had the effect of telling the jury they should convict the defendant of the highest offense proved. It did not allow the jury to pardon the defendant by convicting him of some lower offense. The defendant cannot logically be allowed to assert he was prejudiced by not having the jury pardon him to a lesser offense when he did not object to the instruction which specifically told the jury they could not pardon him.

This leads to the very interesting question of why we have “jury pardons” without telling the jury about it. We are aware of no authority for the giving of an instruction on jury pardons, and we would not condone it. We simply are unable to understand how a defendant can be entitled to a reversal of an othérwise proper conviction because a trial court somehow prevented a jury from doing something (a jury pardon) which that jury did not know it could do.

Because the instructions actually given included the offense or robbery with a weapon and because of the unobjected to instruction negating jury pardons, we affirm the judgment of guilt.

The court, however, did err in sentencing the defendant to an indeterminate sentence of three to ten years. The sentence is thus vacated and the case remanded for resentencing in accordance with Cox v. State, 344 So.2d 1324 (Fla.2d DCA 1977), cert. denied, 354 So.2d 979 (Fla.1977).

CONVICTION AFFIRMED; REMANDED FOR RESENTENCING.

DAUKSCH, C. J., concurs.

ANSTEAD, HARRY LEE, Associate Judge, dissents.

ANSTEAD, HARRY LEE, Associate Judge,

dissenting:

The trial court failed to grant an instruction requested on a lesser included offense only one step removed from the offense charged. The case of Growden v. State, 372 So.2d 930 (Fla.1979) appears to be directly on point and mandates reversal.


author: MOORE, JOHN H., II, Associate Judge. DAUKSCH, Chief Judge,

text:
    Wade Roberts GAGEL, Petitioner, v. The Honorable Lon S. CORNELIUS, Judge, Circuit Court of the Ninth Judicial Circuit, etc., Respondent.
    No. 79-395/NT4-74.
    District Court of Appeal of Florida, Fifth District.
    March 19, 1980.
    James E. Shepherd of Shepherd, McCabe & Cooley, Orlando, for petitioner.
    Jim Smith, Atty. Gen., Tallahassee, and Joy B. Shearer, Asst. Atty. Gen., West Palm Beach, for respondent.
   MOORE, JOHN H., II, Associate Judge.

Petitioner seeks to prohibit the trial court from trying him on a charge of manslaughter. He filed a motion for discharge in the trial court pursuant to the speedy trial rule, Fla.R.Crim.P. 3.191. The denial of that motion prompted the instant suggestion for our writ of prohibition.

The issue before us is whether the issuance of a citation for a non-criminal traffic infraction constitutes a taking into custody sufficient to commence the running of the speedy trial time prescribed in Fla.R.Crim.P. 3.191(a)(1). We hold it is not a taking into custody and deny the suggestion for writ of prohibition.

Petitioner was involved in an automobile accident, allegedly due to his intoxication and reckless driving. The accident resulted in the death of another person and the hospitalization of petitioner and others. Pursuant to Section 322.261(l)(c), Florida Statutes (1977), a Highway Patrol investigator directed the hospital personnel to administer a blood alcohol test to petitioner. Because of his physical condition, petitioner neither affirmatively consented to the test, nor did he object. Also while in the hospital, petitioner was served with a citation for the non-criminal traffic infraction of failing to drive on the proper side of a divided highway, contrary to Section 316.090, Florida Statutes (1977).

The citation for the traffic infraction was served on the petitioner on March 23, 1978, the date of the accident and death. A two count information charging him with manslaughter by driving while under the influence of intoxicating liquors and manslaughter by reckless driving was filed on August 15, 1978, pursuant to which petitioner was arrested on August 24. He contends that he should have been tried within 180 days from March 23, and the State having failed to do so, the court erred in denying his motion for discharge.

We will deal with each of petitioner’s reasons in support of his contention. Initially he argues that he was “taken into custody” on March 23 because the taking of blood necessitated a prior arrest which, he claims, is a necessary and integral part of the procedure. He overlooks, however, the decision in Filmon v. State, 336 So.2d 586 (Fla.1976) which upheld the constitutionality of Section 322.261(l)(c), providing for the administration of a blood test to “[a]ny such person who is incapable of refusal by reason of unconsciousness or other mental or physical condition . . . .” See also, State v. Mitchell, 245 So.2d 618 (Fla.1971). The record reflects that petitioner was in such a condition when the test was administered to him. Section 322.261(l)(a) requires a lawful arrest prior to administering a chemical test of one’s breath. No such requirement exists when a blood test is necessitated by the conditions described in Section 322.261(l)(c). Thus, we reject the argument that petitioner was necessarily under arrest when the test was administered. Moreover, no actual arrest occurred until petitioner was arrested on the manslaughter charge.

The next contention is that petitioner was “taken into custody” on March 23 because the citation he received required his mandatory appearance in court. Relying on Singletary v. State, 322 So.2d 551 (Fla. 1975), he argues that his freedom was restricted because his appearance in court was required under threat of arrest for noncompliance. This argument is also rejected.

Singletary involved a summons to appear for criminal violation of the welfare laws. It merely held that a person receiving a summons for a criminal violation stands in the same position as one who is arrested pursuant to a warrant and is released on bail or recognizance. Each is subject to criminal penalties for failure to appear.

True, the citation received by petitioner required a mandatory court appearance. It does not follow, however, that he was (therefore taken into custody for purposes of the speedy trial rule. The underlying rationale of the rule, that one who is charged with criminal conduct may well remain under a cloud of anxiety, suspicion and often hostility until disposition of the charges, does not apply with equal force to one who is cited for a non-criminal traffic violation. Even though he may be required to appear in court because the accident resulted in death, personal injury or property damage exceeding $250.00, the penalty for failure to appear will result only in suspension of driver’s privileges. Fla.R.Traf.Ct., 6.620.

We also note that in adopting the Florida Rules of Traffic Court the Supreme Court specifically made the speedy trial rule applicable to criminal traffic offenses. Fla.R.Traf.Ct.6.220. No reference is made to noncriminal traffic offenses.

In summary, we hold that the administering of a blood test pursuant to Section 322.261(l)(c) and the issuance of a citation for a non-criminal traffic infraction requiring a mandatory court appearance do not constitute a “taking into custody” for purposes of commencing the speedy trial rule. Accordingly, the suggestion for writ of prohibition is denied.

CROSS, J., concurs.

DAUKSCH, C. J., dissents with opinion.

DAUKSCH, Chief Judge,

dissenting:

I respectfully dissent. When the trooper gave the appellant the summons to appear and required the taking of his blood I think there was sufficient control exerted over the individual by the government to begin the running of the speedy trial period. At that point in time the alleged crime had been fully committed, the death had occurred and the appellant’s responsibility had been established in the State’s view. Appellant could not ignore the summons and was subjected to a loss in his freedom to an extent others are not. I would begin the running of the speedy trial period at the time the summons was served in this case as we did in Robinson v. Lasher, 368 So.2d 83 (Fla. 4th DCA 1979). I realize Robinson was a more serious reckless driving case, a criminal infraction, as opposed to this noncriminal infraction but I think under the facts of this case there is not that much difference. I would issue the writ.


author: BERANEK, JOHN R., Associate Judge.

text:
    SEMINOLE PARK AND FAIRGROUNDS, INC., Appellant, v. TROPIC BANK OF SEMINOLE et al., Appellees.
    No. 79-418/NT4-75.
    District Court of Appeal of Florida, Fifth District.
    March 19, 1980.
    Erik C. Larsen of O’Neill, Dyer, Bogner & Larsen, P. A., Orlando, for appellant.
    Deno P. Dikeou of Baldwin & Dikeou, Ferm Park, for appellees, Tropic Bank of Seminole.
   BERANEK, JOHN R., Associate Judge.

This is an interlocutory appeal by defendant from an order granting a temporary injunction. The temporary injunction was entered on the oral application of plaintiff’s counsel. The trial court granted the injunction ex parte and without requiring a bond. This order is in direct contravention of Florida Rules of Civil Procedure Rule 1.610 which provides:

(a) Issuance. No injunction shall be granted until a complaint therefor is filed.
(b) Temporary Injunction; Notice; Bond. No temporary injunction shall be granted except after notice to the adverse party unless it is manifest from the allegations of a verified complaint or supporting affidavits that the injury will be done if an immediate remedy is not afforded and in such event the court may grant a temporary injunction until a hearing or further order of court. When a temporary injunction is granted, the court shall require the party obtaining it to give bond conditioned for the payment of such costs and damages as may be incurred or suffered by any party who is wrongfully enjoined unless the court, after taking evidence from all parties of the truth of the complaint and the fact that the party seeking the temporary injunction is unable to give bond, finds such to be true, in which event a temporary injunction without bond may be granted. When any injunction is issued on the complaint of a municipality or the State or any officer, agency or political subdivision thereof, the Court, in its discretion having due regard to the public interest, may require or dispense with the requirement of a bond, with or without surety, and conditioned as the circumstances may require.

The trial court’s injunction related to the sale of certain property by the defendant which plaintiff’s counsel anticipated was imminent. No written complaint was filed requesting such relief and appellant was provided with no notice. No bond was required and the order does not appear to have been entered based on a verified pleading, an affidavit, or sworn testimony. The order was in error and is therefore reversed. Lieberman v. Marshall, 236 So.2d 120 (Fla.1970), and City National Bank of Miami v. Somerset Development Corporation of America, 330 So.2d 501 (Fla. 4th DCA 1976). The injunction below is vacated and the case remanded for further proceedings.

DAUKSCH, C. J., and HURLEY, DANIEL T. K., Associate Judge, concur.


author: ORFINGER, Judge.

text:
    H. C. KIRK et ux., Appellants, v. Howard Jay EDINGER et ux., et al., Appellees.
    No. 78-1990/T4-205.
    District Court of Appeal of Florida, Fifth District.
    March 19, 1980.

      L. Alexander Vance, Jr., and Gilbert S. Goshorn, Jr., of Goshorn & Miller, P. A., Titusville, for appellants.
    Joe Teague Caruso of Wolfe, Kirschen-baum, Caruso & Mosley, P. A., Cocoa Beach, for appellees.
   ORFINGER, Judge.

This was an action filed by appellant to set aside an alleged fraudulent conveyance of real property. The appeal is from a final judgment for defendants.

On April 18, 1977, appellants Kirk recovered a judgment against appellees Howard Jay Edinger and Rosalyn Edinger, his wife. They alleged that at the time that suit was instituted, the Edingers owned a certain parcel of real estate in Brevard County, and that they conveyed that property to appel-lee Mabel Fein Leibman on February 18, 1977, approximately two months before that final judgment was entered. They further alleged that appellee Leibman was Mrs. Edinger’s mother, that the conveyance was made for the specific purpose of defrauding the Kirks as judgment creditors and that it was not a bona fide purchase for value. Appellants asked that the conveyance be set aside and that the property be made subject to the lien of their judgment. After an answer was filed denying the allegations, the cause came on for non-jury trial before the court.

Appellants contend that the conveyance, under the circumstances found here, is patently a violation of Section 726.01, Florida Statutes (1975) and that the evidence clearly shows the presence of most, if not all of the “badges of fraud”. 15 Fla.Jur. Fraudulent Conveyances § 12 (1964). Undoubtedly, there was evidence before the trial court to sustain that position, but there was also evidence presented upon which the trial court could conclude that there was consideration for the conveyance, that the grantee had no knowledge of the pending lawsuit and that the purpose of the conveyance was not to defraud a creditor (there had been no judgment entered yet) but to satisfy an antecedent debt in approximately the same amount as the equity in the property.

Not every conveyance of property by one against whom a suit is pending can be deemed fraudulent. Whether fraud is present in a particular transaction is to be determined by the particular facts surrounding the conveyance. Stelle v. Dennis, 104 Fla. 384, 140 So. 194 (1932); McCrary v. Bobenhausen, 366 So.2d 77 (Fla. 1st DCA 1979). We must also consider that the findings of the trial judge come to us with a presumption of correctness and will not be disturbed absent a showing that there was no competent evidence to sustain them. Turner v. Lorber, 360 So.2d 101 (Fla. 3d DCA 1978). This is a close case, controlled by the factual circumstances surrounding the conveyance, and on the evidence presented could have been decided either way. The trial judge heard the evidence and observed the witnesses and we are without authority to substitute our conclusions for those of the trier of the facts. Bond v. Key, 141 Fla. 160, 192 So. 599 (1939).

We would be remiss if we did not point out that our review of this record was made more difficult by the fact that the final judgment herein contains no findings of fact by the trial judge. We conclude from the judgment that he resolved the conflicts in the evidence in favor of the defendants, so we affirm the judgment. But we must point out, as was done by our sister court in Turner v. Lorber, supra, that a trial judge should state his findings in a manner which reveals his consideration of each issue necessary to a resolution of the cause. This facilitates appellate review, and avoids our having to guess at the trial judge’s findings. The trial judge can dispel any doubts as to his findings and conclusions by stating them in the final judgment, and thus avoid the possibility that we will misconceive what he meant.

AFFIRMED.

SHARP, J., concurs.

CROSS, J., concurs only in conclusion.


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

text:
    Allan C. WEST, Appellant, v. Louie L. WAINWRIGHT, Individually and as Secretary of the Department of Corrections; J. C. Combs, Individually and as Assistant Superintendent, F.S.P.; Milton R. Hicks, Individually and as Correctional Officer Chief III, Appellees.
    Nos. JJ-116, KK-297.
    District Court of Appeal of Florida, First District.
    March 20, 1980.
    Allan C. West, pro se.
    Jim Smith, Atty. Gen., and Jonathan D. Schuman, Asst. Atty. Gen., Tallahassee, for appellees.
   ROBERT F. SMITH, Jr., Judge.

The interlocutory appeal in case JJ-116, from an order vacating a default entered by the clerk, is properly taken pursuant to Fla.R.App.P. 4.2(a) (1962). Contrast Fla.R. App.P. 9.130 (1977); Security Motors, Inc. v. Fiat Motors of North America, Inc., 373 So.2d 396 (Fla. 1st DCA 1979). The record sustains the trial court’s finding that the clerk improperly entered a default after defendants served papers in the action. Fla.R.Civ.P. 1.500.

The appeal in KK-297 is from an order dismissing appellant’s complaint seeking monetary damages for appellees’ alleged negligent and malicious injury to appellant, a state prisoner, through “a program of deliberate abuse” consisting of denying dietary and medical treatment of appellant’s .illness. The complaint was dismissed “without prejudice” on account of appellant’s failure to allege that he performed the statutory condition precedent of presenting his claim in writing to the Department of Insurance and appropriate agency. Section 768.28(6), Florida Statutes (1979).

Insofar as appellant’s claim was against the state, the order requiring compliance with Section 768.28(6) is correct, and the dismissal without prejudice was appropriate. But insofar as appellant’s complaint alleged malicious mistreatment “as a program of deliberate abuse designed to threaten the life of the Plaintiff or to drive him to distress,” the complaint stated a cause of action against the appellees individually, for which Section 768.28(6) does not require a written claim upon the state or its agencies. See Section 768.28(9), Florida Statutes (1979); District School Board of Lake County, et al. v. Talmadge, 381 So.2d 698 (Fla. 1980). The trial court erred in dismissing the complaint against appellees individually.

The order appealed in JJ-116 is AFFIRMED; the order appealed in KK-297 is AFFIRMED IN PART, REVERSED IN PART.

ERVIN, J., and MELVIN, WOODROW M., Associate Judge (Ret.), concur.