text:
    MANUFACTURERS HANOVER TRUST COMPANY, Appellant, v. WEST ORANGE INDUSTRIAL PARK, INC., etc. et al., Appellees.
    No. 79-163/T4-376.
    District Court of Appeal of Florida, Fifth District.
    May 7, 1980.
    Gene H. Godbold and A. Guy Neff of Maguire, Voorhis & Wells, P.A., Winter Park, for appellant.
    James W. Markel of Graham, Markel, Scott, Marlowe, Appleton & McDonough, P.A., Orlando, for appellees.
   PER CURIAM.

In this appeal from an order denying a deficiency judgment, the appellant alleges the trial court abused its discretion in failing to make an award. We have reviewed the record and can find little basis for the denial. Because the trial court entered the order with no findings of fact, we must remand the matter to the trial court for the entry of a complete order, including the findings of fact in support of the denial. Scheneman v. Barnett, 53 So.2d 641 (Fla. 1951); Steketee v. Ballance Homes, Inc., 376 So.2d 873 (Fla.2d DCA 1979); Hamilton Investment Trust v. Escambia Developers, Inc., 352 So.2d 883 (Fla.lst DCA 1977); Colmes v. Hoco, Inc. of Dade County, 152 So.2d 524 (Fla.3d DCA 1963).

Jurisdiction is relinquished for a period of thirty days, see Surratt v. Fleming, 309 So.2d 614 (Fla.lst DCA 1975), and this cause is

REMANDED.

DAUKSCH, C. J., SHARP, J., and SHARP, G. K., Associate Judge, concur.


source: Caselaw Access Project

author: PER CURIAM. NESBITT, Judge

license: Public Domain

text:
    ALL CHILDREN’S HOSPITAL, INC., Petitioner, v. FIRST STATE BANK OF MIAMI, Guardian of the Property of Sybelle Fonseca DaSilva, Incompetent, Respondent.
    No. 80-4.
    District Court of Appeal of Florida, Third District.
    May 13, 1980.

      Prunty, Ross, Olsen & Israel and John W. Prunty, Miami, for petitioner.
    Herbert J. Marcus, Miami, for respondent.
    Before HUBBART and NESBITT, JJ., and CHARLES A. CARROLL, (Ret.), Associate Judge.
   PER CURIAM.

This is an appeal from a non-final order entered in a guardianship proceeding. The order appealed from is not a non-final order for which appeal is authorized by Fla.R. App.P. 9.130. We accept jurisdiction for review of that order upon treating the filed appeal as a petition for common law certio-rari, as provided for by Fla.R.App.P. 9.040.

The factual basis upon which the questioned order was entered, as revealed in the pleadings and the record of the hearing thereon, includes the following. In 1977 Sybelle Fonseca DaSilva, a minor, was injured in an automobile accident which occurred in Indian River County. She received treatment for her injuries for an extended period in the petitioner hospital, from which she was finally discharged on August 19, 1977. The hospital filed a lien, as authorized by statute, incident to litigation filed in the circuit court in Indian River County on behalf of the minor against the tortfeasor. Subsequently a settlement was agreed upon by the parties thereto, in the amount of $20,000. An insurance company, which by the settlement was to pay the $20,000, had not done so at the time of the hearing in the guardianship proceeding in Dade County.

Thereafter, in 1978 the minor was treated in a hospital in Dade County, out of which a malpractice claim was made on behalf of the minor. As the result of a settlement of the latter claim the assets of the minor now exceed $400,000. Such funds are held by First State Bank of Miami, as the appointed guardian of the property of said minor.

The petitioner hospital filed a petition in the guardianship proceeding in Dade County, to enforce its claim for services to the minor (in the amount of $33,401.73, with interest), seeking payment thereof by the said guardian. In its petition the hospital alleged its treatment of the minor, with supportive itemized statements showing the treatment and charges therefor. The petition alleged that the guardian held funds of the ward in excess of $400,000; the filing of the lien above referred to; and prayed for an order directing the guardian to pay the hospital’s claim. The petition was verified.

In a response filed by the guardian, the allegations of the petition as to the services performed to the minor by the hospital, and as to the amount due the hospital therefor, and as to the money or assets of the minor, were admitted by the guardian. However, the response of the guardian presented the contention that any amount received or to be received by the hospital, on its lien, from the proceeds of the settlement of the Indian River negligence action, would operate as a setoff on the claim of the hospital against the guardian.

In the order entered in the guardianship proceeding in Dade County, the court noted that the guardian had admitted the propriety of the hospital’s claim, and the court made reference to the lien which had been filed by the hospital against the proceeds of the negligence action brought on behalf of the minor in Indian River County, and that a settlement of that action had been received. Thereupon the court in said order held that the petition for payment by the guardian was premature, and denied the petition “without prejudice to the right of the claimant to renew its Petition for Payment after the status and validity of the hospital liens have been determined in the Nineteenth Judicial Circuit in and for Indian River County, Florida.”

On consideration of the record, briefs and arguments, we hold that in so ruling the trial court did not depart from essential requirements of law.

Although the filing of the lien by the hospital incident to the separate negligence action in Indian River County would not operate to preclude a direct action by the hospital against the party to whom the services were rendered, it is clear that any amount received by the hospital from settlement of the Indian River action, based on its said lien, would be a proper setoff to its claim when made directly against the guardian for services to the minor. The order of the trial court recognized the right of the hospital to petition later for payment by the guardian of the amount of its claim, less any setoff which should result by receiving payment out of the negligence action settlement when its right to the latter should be determined.

Certiorari is denied.

NESBITT, Judge

(specially concurring).

I concur in the denial of certiorari upon a different ground.

The Florida Guardianship Law does not grant a creditor standing to petition a probate court for the settlement of a claim against the estate of a ward. A petition to settle a claim by or against a ward may be brought only by petition of the guardian of the property pursuant to Section 744.387(1), Florida Statutes (1979), or the natural guardian of a minor pursuant to Section 744.387(2), Florida Statutes (1979). Consequently, the hospital had no standing to file the petition and the probate court properly dismissed it.

      . The recitals in the court’s order were as follows:
      “THIS CAUSE came on to be heard upon the Petition of ALL CHILDREN'S HOSPITAL, INC. for Payment of a claim for hospital care, treatment and maintenance rendered to the Incompetent/Ward, SYBELLE FONSECA DaSILVA, and a response having been filed thereto by FIRST STATE BANK OF MIAMI, Guardian of the Property of the Incompetent/Ward, and the Respondent having admitted that the services for which payment is claimed by ALL CHILDREN’S HOSPITAL, INC. were rendered to and performed on behalf of the Incompetent/Ward for the total amount of $33,401.73, and it further appearing that claims of lien were filed by the claimant, ALL CHILDREN’S HOSPITAL, INC., in the Circuit Court of Pinellas County, and that claimant is seeking to impress its liens upon the proceeds of a settlement secured by the Incompetent/Ward against State Farm Mutual Automobile Insurance Company and its assured in the amount of $20,000.00, which settlement was reached in an action in the Nineteenth Judicial Circuit in and for Indian River County, Florida, brought on behalf of the Incompetent/Ward . .”

      . Palm Springs General Hospital v. State Farm Mutual Automobile insurance Company, 218 So.2d 793, 798 (Fla. 3d DCA 1969), affirmed, State Farm Mutual Automobile Insurance Company v. Palm Springs General Hospital, 232 So.2d 737 (Fla. 1970).


author: PER CURIAM.

text:
    The STATE of Florida, Appellant, v. Inzel GAITOR, Appellee.
    No. 79-163.
    District Court of Appeal of Florida, Third District.
    May 27, 1980.
    Janet Reno, State’s Atty. and Theda R. James, Asst. State’s Atty., for appellant.
    Bennett H. Brummer, Public Defender and Clark D. Mervis, Asst. Public Defender, for appellee.
    Before HUBBART, J., CHAPPELL, BILL G., Associate Judge, and PEARSON, TILLMAN (Ret.), Associate Judge.
   PER CURIAM.

The State appeals an order suppressing the out-of-court identification of Inzel Gaitor based upon a finding that defendant, Gaitor, was entitled to have counsel present when video tape recordings were shown to the victims.

The pertinent facts are that Gaitor was a suspect in several armed robberies including one of Louis and Betty Salter, which occurred on May 27,1978. Detective Maye of the Miami Police Department was assigned to the case, and he showed the Salters a photographic lineup which included a photograph of Gaitor whom they tentatively identified as the offender.

On June 14, 1978, Gaitor was taken into custody and charged with two unrelated armed robberies for which informations were filed on July 7 and July 10,1978. The Public Defender was appointed to represent him in those two cases on June 15,1978, and on that same date, as a part of standard booking procedure, a video tape was made of Gaitor and filed in a library of approximately 40,000 records maintained for identification purposes.

On July 3, 1978, at Maye’s request, the video equipment operator of the Miami Police Department prepared a video taped lineup of six subjects, including Gaitor, which was shown to Mrs. Salter on July 5, 1978, and to Mr. Salter on August 3, 1978, following which each of them made positive identification of Gaitor. As a result of these identifications, Gaitor was promptly arrested for the Salter robbery.

The Sixth Amendment of the United States Constitution provides, “In all criminal prosecutions, the accused shall enjoy the right ... to have the Assistance of Counsel for his defense.” In a long line of cases, the courts have toiled to define the commencement of criminal prosecutions and to ascertain at what points therein the accused shall have such assistance.

In the cases of United States v. Wade, 388 U.S. 218, 87 S.Ct. 1926, 18 L.Ed.2d 1149 (1967) and Gilbert v. California, 388 U.S. 263, 87 S.Ct. 1951, 18 L.Ed.2d 1178 (1967), the United States Supreme Court held that a post-indictment pre-trial lineup at which the accused is exhibited to identifying witnesses is a critical state of the criminal prosecution, and the court developed a per se exclusionary rule to identification testimony based upon a police station lineup that took place after the defendant had been indicted or otherwise formally charged with a criminal offense. In a later case, the majority of that court refused to extend this Wade-Gilbert per se exclusionary rule to confrontations conducted after arrest but before the filing of formal charges. Kirby v. Illinois, 406 U.S. 682, 92 S.Ct. 1877, 32 L.Ed.2d 411 (1972). The Florida Supreme Court follows the same rule. Perkins v. State, 228 So.2d 382, 389-390 (Fla.1969).

In Cox v. State, 219 So.2d 762 (Fla.3d DCA 1969), this court held that a person who has been arrested and “booked” is entitled to have counsel present when a video tape lineup in which he appears is shown to state witnesses as a substitute for a live lineup. In view of the holdings in Wade and Gilbert, supra, this court took the view that what the police could not do directly, they should not be allowed to do indirectly through the miracles of modern science. Although Cox still remains good law, it must be read to apply only to post-charge video tape lineups. It is true that the language of the opinion appears to trigger the right to counsel at the point of arrest, but the subsequent case law cited above clearly limits the impact of this decision to post-formal charge video tape lineups.

In the instant case, the video tape lineups which were suppressed were clearly pre-charge confrontations. It is clear beyond dispute that these video tape lineups took place before the defendant was arrested and formally charged with the robberies herein. As such, the defendant had no right to counsel at these pre-charge lineups, and the evidence thereof was improperly suppressed by the trial court.

The order under review is reversed and the cause remanded to the trial court for further proceedings.


text:
    Curtis William JOHNSON, Petitioner, v. E. W. PELLICER, Sheriff of Putnam County, Florida, Respondent.
    No. 80-517.
    District Court of Appeal of Florida, Fifth District.
    June 4, 1980.
    James B. Gibson, Public Defender, Dayto-na Beach, and James S. Dunning, Jr., Asst. Public Defender, Palatka, for petitioner.
    E. W. Pellicer, in pro. per.
   PER CURIAM.

The allegations of the sworn petition for habeas corpus have not been refuted in the response thereto, and it appears from the record before us that the defendant’s conduct herein did not evince such a flagrant disregard of the court’s authority or effort to evade its processes as to forfeit the defendant’s constitutional right to bail. See Ex parte McDaniel, 86 Fla. 145, 97 So. 317 (1923). It is ordered that the trial court shall set bond, in a reasonable amount, in Case No. 79-748-CF and Case No. 79-749-CF, immediately upon receipt of this writ. The issue of estreature of the original bonds is not raised by this petition, and therefore not considered.

IT IS SO ORDERED.

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


text:
    INTERNATIONAL UNION OF OPERATING ENGINEERS and International Union of Operating Engineers, Local 487, Appellants, v. Murl LONG and Sally Long, his wife, Appellees.
    No. 77-1129.
    District Court of Appeal of Florida, Third District.
    June 23, 1980.
    Chamblee & Kelly, Tampa, Pyszka, Kes-sler & Adams, Joseph H. Kaplan, Miami, for appellants.
    Rosenblatt, Greene & Amowitz, Greene & Cooper, Miami, for appellees.
    Before BARKDULL, HUBBART and DANIEL PEARSON, JJ.
   PER CURIAM.

The appellees Murl Long and Sally Long have filed a motion to correct an inadvertent, typographical error appearing in the opinion of this court upon a prior appeal in this cause. International Union of Operating Engineers v. Long, 362 So.2d 987 (Fla. 3d DCA 1978). We have jurisdiction to entertain this motion. Martin v. Martin, 139 So.2d 406 (Fla. 1962); D.E.R. Co. v. Warriner, 156 So.2d 183 (Fla. 3d DCA 1963).

Specifically, it is alleged that the typographical error appears in the following sentence of our opinion:

“In this case, the instruction quoted above given by the trial court failed to instruct on whether Local or International either authorized, participated in, or ratified the tortious acts of Edward Walker.” [emphasis added]. 362 So.2d at 989.

It is urged that the words “Edward Walker” mistakenly appear in this sentence. We agree. We intended to say “the local union members,” in place of “Edward Walker” in this sentence. Indeed, all parties to this appeal later agreed that we had made such a typographical error in our opinion when the cause was on certiorari review before the Florida Supreme Court. The matter has since become significant as the appellants International Union of Operating Engineers and International Union of Operating Engineers, Local 487, now apparently seek to rely on this admitted error in subsequent proceedings in the trial court following the denial of certiorari review by the Florida Supreme Court. 372 So.2d 469 (Fla. 1979).

The appellees’ motion is granted and it is ordered nunc pro tunc that (a) the words “Edward Walker” shall be deleted from the second sentence of the second column of our opinion appearing at 362 So.2d 989 and (b) the above sentence in its entirety shall read as follows:

“In this case, the instruction quoted above given by the trial court failed to instruct on whether Local or International either authorized, participated in, or ratified the tortious acts of the local union members.”

Motion granted.


text:
    Jeffrey Leman STAFFORD, Appellant, v. The STATE of Florida, Appellee.
    No. 79-1284.
    District Court of Appeal of Florida, Third District.
    July 1, 1980.

      Jeffrey Leman Stafford, in pro. per.
    Jim Smith, Atty. Gen., for appellee.
    Before NESBITT, BASKIN and DANIEL S. PEARSON, JJ.
   PER CURIAM.

This court, proceeding in the manner outlined and recommended by the Supreme Court of the United States in Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), having deferred ruling on a motion of the public defender to withdraw as counsel for the indigent defendant-appellant, and having furnished appellant with a copy of the public defender’s memorandum brief, and having allowed the appellant a reasonable specified time within which to raise any points that he chose in support of this appeal, and the appellant having filed his response thereto, on consideration thereof upon full examination of the proceedings we conclude that the appeal is wholly frivolous. Whereupon, the public defender’s said motion to withdraw is granted, and the order or judgment appealed is hereby affirmed.


author: GLICKSTEIN, Judge.

text:
    STATE of Florida, Appellant, v. David T. RICHARDS and Richard G. Fifer, Jr., Appellees.
    No. 79-102.
    District Court of Appeal of Florida, Fourth District.
    July 9, 1980.
    Rehearing Denied Oct. 8, 1980.
    Jim Smith, Atty. Gen., Tallahassee, and Joy B. Shearer, Asst. Atty. Gen., West Palm Beach, for appellant.
    Douglas J. Glaid of Kay, Roderman & Silber, P. A., Fort Lauderdale, for appellees.
   GLICKSTEIN, Judge.

This is an appeal by the State from an order of the trial court which suppressed marijuana seized by the United States Coast Guard. The question presented for review is whether the stop and search by the Coast Guard violated the fourth amendment. We reverse.

The record reflects that David T. Richards and Richard G. Fifer were charged with possession of over 100 pounds of cannabis. At approximately 7:10 a. m. on March 17, 1978, appellees were the sole occupants of the 45-foot vessel, Commando II, which entered the inlet from the ocean at Port Everglades, Florida. At that time three United States Coast Guard Petty Officers were on safety patrol at the entrance to the inlet with orders to perform routine safety inspections and to be on the lookout for a 50-foot Hatteras suspected of carrying marijuana. After observing the Commando II enter the port, the officers aboard the Coast Guard cutter instructed the ap-pellees to heave to for routine safety boarding and Petty Officers Weisman and Hill then boarded the vessel. Weisman testified that he undertook obtaining from Fifer the information needed for the Coast Guard boarding form which included the registration and number of the boat, Fifer’s driver’s license, length of vessel, engine information ■ and safety requirements. With Fifer’s cooperation Weisman said he went through the safety requirements of life jackets, sound producing devices, navigation lights, backfire flame arrester and others. After inspecting the life jackets, Weisman asked about the fire extinguishers and was told they were located below in the cabin. Upon entering the cabin, Weisman observed stacked bales covered with a cloth. Weis-man recognized the odor in the cabin as marijuana and the vessel was subsequently seized for carrying contraband.

Although Weisman testified that he was making a routine safety inspection of Commando II and had no suspicion that there might be contraband on board, the trial court perceived the real purpose of the stop and boarding of Commando II to be a search for suspected contraband rather than a safety inspection. The trial court accepted Fifer’s testimony that before any safety inspection had commenced, Weisman had said that the Coast Guard had been waiting there since 1:00 a. m. for a boat which matched Commando II’s description; that they were looking for a boat carrying contraband; and that they had been stopping boats since 1:00 a. m.. for that purpose. Fifer testified that when Weisman observed the marijuana he said “It is here,” and that one of the petty officers asked if a quick name change of the vessel had been made.

For the purpose of our decision we are assuming, arguendo, that the officers stopped the vessel because they had a prior suspicion that the vessel was carrying contraband. However, we reach a different decision from that reached by the trial court because we believe whatever the officers thought was irrelevant. The relevant inquiry is what did the officers do. The record reflects that the officers (1) stopped and boarded the vessel and (2) conducted a safety inspection during which contraband was observed and subsequently seized.

Under 14 U.S.C. § 89(a) the Coast Guard has been granted the express statutory authority to stop vessels for safety inspections:

The Coast Guard may make inquiries, examinations, inspections, searches, seizures, and arrests upon the high seas and waters over which the United States has jurisdiction, for the prevention, detection, and suppression of violations of laws of the United States. For such purposes, commissioned, warrant, and petty officers may at any time go on board of any vessel subject to the jurisdiction, or to the operation of any law, of the United States, address inquiries to those on board, examine the ship’s documents and papers, and examine, inspect, and search the vessel and use all necessary force to compel compliance. (Emphasis added).

Random boarding of boats by the Coast Guard under § 89(a) has been upheld in United States v. Warren, 578 F.2d 1058 (5th Cir. 1978). There it was held the boarding need not be founded on any particularized suspicion, and that once having boarded the Coast Guard may conduct documentation and safety inspections. Id. at 1064-65. The similar authority of customs officers under 19 U.S.C. § 1581 was recognized in United States v. Freeman, 579 F.2d 942, 946 (5th Cir. 1978).

Defendants argue that the real purpose of the stop and boarding was to search for marijuana. The broad authority which the Coast Guard possesses by virtue of Section 89(a) purges the stop and boarding of what the trial court considered to be egregious. In United States v. Hillstrom, 533 F.2d 209 (5th Cir. 1976), cert. denied 429 U.S. 1038, 97 S.Ct. 734, 50 L.Ed.2d 749 (1977), the court held that where the Coast Guard had acted under its statutory authority to make an inspection, and in the course of the inspection discovered marijuana, the fact that there was a prior suspicion of the presence of drugs did not taint the validity of the safety inspection and seizure.

In light of the Coast Guard’s responsibility under 14 U.S.C.A. § 89(a) to prevent the violation of United States law, the defendants are entirely unwarranted in their suggestion that prior suspicion of the presence of drugs, or the suggestion by a drug enforcement agency that inspection be made, tainted the validity of the safety and documentation inspection. Id. at 211.

Subjective intent cannot change what would otherwise be a valid stop and entry into an illegal one. What the boarding officers were thinking at the time of the boarding is simply irrelevant. United States v. Willis, 476 F.Supp. 201, 202 (E.D. La.1979).

Accordingly, we conclude that the detention and boarding of the Commando II was statutorily authorized and constitutionally permissible. We next consider the search which flowed from the initial boarding and request to inspect the vessel’s safety equipment.

A review of the evidentiary hearing convinces us that a bona fide safety inspection was conducted by the Coast Guard officers after boarding the Commando II. The officers’ presence in the cabin where the marijuana was seized was occasioned by Fifer and Richards’ statements as to the location of the fire extinguishers. The plain view observations of the bales and the odor they produced were made by Weisman at a time when he was in a place where he had a right to be. The fact that there was a prior suspicion of the presence of contraband did not taint the validity of the inspection and seizure.

We distinguish the facts of the present case from those in State v. Taylor, 355 So.2d 180 (Fla. 3d DCA 1978), in which the officer exceeded his statutory authority to make a registration check when he automatically conducted a general search. In this instance, Section 89(a) authorized the Coast Guard to stop and board the vessel for safety and registration inspection. The actions of the boarding officers were consistent with a safety inspection. The marijuana was discovered in the course of the inspection and not as a result of an automatic general search.

Accordingly, while we are troubled by the plenary authority given the Coast Guard to stop and board vessels, we consider that the petty officers’ actions were consistent with fourth amendment requirements. We therefore reverse the trial court’s order and remand the cause for further proceedings consistent herewith.

REVERSED and REMANDED.

BERANEK and HURLEY, JJ., concur.

      . United States v. Warren, 578 F.2d 1058 (5th Cir. 1978), upheld the random boarding of American flag vessels located outside the 12-mile limit.

      .19 U.S.C. § 1581(a) (1970), is analogous to 14 U.S.C. § 89(a), and provides:
      (a) Any officer of the customs may at any time go on board of any vessel or vehicle at any place in the United States or within the customs waters or, as he may be authorized, within a customs-enforcement area established under sections 1701 and 1703 to 1711 of this title, or at any other authorized place, without as well as within his district, and examine the manifest and other documents and papers and examine, inspect, and search the vessel or vehicle and every part thereof and any person, trunk, package, or cargo on board, and to this end may hail and stop such vessel or vehicle, and use all necessary force to compel compliance.

      . In United States v. Freeman, 579 F.2d 942, 945, 946 (5th Cir. 1978), a case involving customs personnel rather than the Coast Guard, a vessel was intercepted 2.8 miles from the Florida coast. The court held that “under the explicit language of § 1581(a) Customs Officers need not have even a modicum of suspicion to either stop or search vessels in Customs waters.”

      . Appellee Fifer testified that Weisman “went through the motions” of a safety inspection but on cross-examination, confirmed that his driver’s license and the vessel’s life jackets and registration were checked. He further stated that Weisman may have checked the sound devices and that he told Weisman the fire extinguishers were below.

      . We are not unmindful that the law of the sea in light of the fourth amendment may be in a state of flux. Prior to the decision in Delaware v. Prouse, 440 U.S. 648, 99 S.Ct. 1391, 59 L.Ed.2d 660 (1979), the Fifth Circuit Court of Appeals held in United States v. Freeman, supra n. 3:
      [A]s we emphasized in United States v. Ingham, 5 Cir., 1974, 502 F.2d 1287, 1290, cert. denied, 1975, 421 U.S. 911, 95 S.Ct. 1566, 43 L.Ed.2d 777, there is a substantial difference between a landlocked vehicle and a nautical vessel for Fourth Amendment purposes.

        Delaware v. Prouse, supra, subsequently invalidated the random stopping of automobiles to check driver’s licenses and registration papers in the absence of an articulable and reasonable suspicion that the motorist is unlicensed or the automobile unregistered or that either the automobile or an occupant is otherwise subject to seizure for violation of the law.
      Thereafter, in United States v. Kleinschmidt, 596 F.2d 133 (5th Cir. 1979), the court suggested the possible application of the standards in Delaware v. Prouse, supra, “to blue water.” See also, United States v. Piner, 608 F.2d 358 (9th Cir. 1979).


author: DAUKSCH, Chief Judge.

text:
    Raymond Ellis TAYLOR, Petitioner, v. STATE of Florida and Don R. Moreland as Sheriff of Marion County, Florida, and the Honorable Wallace E. Sturgis, Jr., as Judge of the Circuit Court, Fifth Judicial Circuit of Florida, Respondents.
    No. 80-663.
    District Court of Appeal of Florida, Fifth District.
    July 16, 1980.
    Stan R. Morris, of Turner & Morris, P.A., Gainesville, for petitioner.
    Jim Smith, Atty. Gen., Tallahassee, and Evelyn D. Golden, Asst. Atty. Gen., Dayto-na Beach, for respondents.
   WRIT OF HABEAS CORPUS

DAUKSCH, Chief Judge.

By petition for writ of habeas corpus a review is sought of an order denying pretrial bail in a capital case. The judge below found “that the proof of the defendant’s guilt in this case is evident and the presumption is great that the defendant committed the acts as charged in the indictment.”

In denying bail the judge below apparently did not consider the case of Arthur v. Harper, 371 So.2d 96 (Fla. 4th DCA 1978). In that case it was held that the magistrate does have discretion to admit persons accused of capital crimes to bail even though the proof of guilt is evident or the presumption is great. We agree with the reasoning in that case and hold that only persons accused of non-capital crimes are entitled to bail as a matter of right; but that persons accused of capital and life imprisonment crimes may be admitted to bail, in the sound discretion of the trial court judge, or committing magistrate.

In order to allow the trial judge to enter his complete findings or to conduct such further hearings as he may deem appropriate, we relinquish jurisdiction and remand this cause to the trial court for twenty days. Upon the completion of any hearing, or upon reconsideration without further hearing, the trial judge should submit his findings and his order for our further review to determine whether to issue the writ.

IT IS SO ORDERED.

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

      . “Until adjudged guilty, every person charged with a crime or violation of municipal or county ordinance shall be entitled to release on reasonable bail with sufficient surety unless charged with a capital offense or an offense punishable by life imprisonment and the proof of guilt is evident or the presumption is great.” Section 14, article I, Constitution of the State of Florida.
      “Offenses Less Than Capital. All persons in custody for the commission of an offense unless it is a capital offense or an offense punishable by life imprisonment and the proof of guilt is evident or the presumption is great shall be entitled as of right to be admitted to bail before conviction. After conviction bail may be granted by either the trial or appellate court.” Rule 3.130(a), Fla.R.Crim.P.


author: BARKDULL, Judge.

text:
    Gary HUDSON, Appellant, v. The STATE of Florida, Appellee.
    No. 79-785.
    District Court of Appeal of Florida, Third District.
    Aug. 5, 1980.

      John H. Lipinski, Miami, for appellant.
    Janet Reno, State’s Atty. and Eric William Hendon, Asst. State’s Atty., for appel-lee.
    Before BARKDULL, HUBBART and BASKIN, JJ.
   BARKDULL, Judge.

By this appeal, the appellant seeks review of an order discharging a writ of habeas corpus theretofore issued on a rendition warrant received by the Governor of Florida from the Executive Department of the State of Ohio. A copy of the rendition warrant was attached to the petition for habeas corpus and was also included in the file at the time of the arrest of the appellant as a fugitive.

The appellant attacks the proceedings before the circuit judge in three particulars: 1) That the rendition warrant was not introduced into evidence; 2) That the rendition warrant was fatal because it was not signed by the Governor of the State of Ohio; 3) That the circuit judge erred in not admitting into evidence two affidavits offered by the appellant. We affirm.

As to the introduction of the rendition warrant and supporting papers, the record reveals the following:

“MR. HEATH [Assistant State Attorney]: And would, at this time, submit into evidence a Governor’s warrant of rendition, which was referred to in the oral return. Would request leave of counsel and this Court, to substitute the Court file, at the conclusion of these proceedings, with a photostatic copy of that warrant of rendition so the original may be kept in the Dade County Public Safety files, if it becomes necessary that he be surrendered to the agency demanding State of Ohio.
“MR. LIPINSKI: Judge, I have no objection to the xerox copy.
I do have objections as to the introduction of the Governor’s warrant into evidence and would present them to the Court at this particular time.
“THE COURT: Go ahead.
“MR. LIPINSKI: First and foremost, none of the papers from the State of Ohio are signed by the Governor.”
(emphasis supplied)

Argument of counsel ensued and then the court announced its ruling as follows:

“THE COURT: It’s the Court’s ruling, at this moment their presumption is that they are in order.”

In the order discharging the writ and remanding appellant-petitioner, the circuit court recited the following:

“ . . .At the hearing the respondent introduced. into evidence a Governor’s Warrant of Rendition, an authenticating requisition from the executive authority of the State of Ohio, and an indictment, the latter two (2) documents being annexed to and included into said Governor’s Warrant. . . . ”

The appellant urges that because the rendition warrant and supporting papers were not actually marked as an exhibit they were not admitted into evidence, citing three cases: DiPiero v. State, 300 So.2d 700 (Fla. 3d DCA 1974); Simpson v. Woodham, 332 So.2d 693 (Fla. 1st DCA 1976); Bentzel v. State, 365 So.2d 441 (Fla. 3d DCA 1978). We find the instant case distinguishable from the cited cases because in those there was no reference that the rendition warrant and supporting papers were introduced into evidence and they were not physically in the file. See: DiPiero v. State, supra. In the instant case, the warrant and supporting papers were in the file; the judge announced he found them in order, and he entered a written order reflecting their introduction. Therefore, we find no merit in this point. Reed v. Sears, Roebuck & Company, 44 Ala.App. 506, 214 So.2d 856 (Ala.1968); Publisher’s Book Bindery, Inc. v. Ziegelheim, 184 Misc. 559, 54 N.Y.S.2d 798 (1945); Martin v. Winston, 181 Va. 94, 23 S.E.2d 873 (1943).

The papers received from the State of Ohio were executed by authenticating officials for Governor James A. Rhodes, pursuant to Ohio Revised Code, Section 107.15. The appellant contends that the documents were insufficient because they were not signed by the Governor as the Chief Executive Officer of the State of Ohio. However, the provisions of the Federal Constitution do not require that such documents be signed by any particular individual; the Federal Constitution in this regard provides as follows:

“Article IV, Section 2
“A person charged in any State with treason, felony, or other crime, who shall flee from justice, and be found in another State, shall on demand of the executive authority of the State from which he fled, be delivered up, to be removed to the State having jurisdiction of the crime.”

The Ohio Legislature, by the enactment of the statute referred to in footnote [2], has created an office to assist the Governor in the Executive Department. We find that this meets the test of the Federal Constitution and, therefore, the request for rendition and supporting documents was appropriate. 31 Am.Jur.2d, Extradition, § 32; Section 941.01, Florida Statutes (1979); compare State ex rel. Arnold v. Justus, 84 Minn. 237, 87 N.W. 770; Ex parte Cockburn, 301 Mo. 575, 257 S.W. 458.

Lastly, we find no error in the failure of the circuit judge to consider affidavits tendered. Grenell v. Scott, 134 So.2d 866 (Fla. 2d DCA 1961); 1 Fla.Jur., Affidavit, Oath and Affirmation, § 5; 3 Am. Jur.2d, Affidavits, § 29.

Therefore, for the reasons above stated, we find no error in the order discharging the writ.

Affirmed.

      . The First District Court of Appeal has receded from its holding in Simpson v. Woodham, supra. See: Fauls v. Sheriff of Leon County, Florida, 384 So.2d 238 (Fla. 1st DCA 1980).

      . § 107.15 Appointment of Authenticating Officer
      The governor may appoint an authenticating officer and delegate to such officer power to sign for the governor any document except 'enrolled bills enacted by the general assembly, nominations to be submitted to the senate for confirmation, clemency actions, interstate compacts, and agreements with the federal government, which document, to have legal effect, requires the governor’s signature and which is of a class which the governor has authorized for signature by his authenticating officer in a writing filed in the office of the secretary of state. The authenticating officer shall sign in the following manner:
      “ . . . Authenticating Officer for Governor

      . The authorized signature of the authenticating officer or an authorized facsimile signature of the governor shall have the same legal effect and validity as the genuine manual signature of the governor.


author: ORFINGER, Judge.

text:
    Charles L. STEVENS, Individually, and as Personal Representative of the Estate of Nichalene C. Stevens, Deceased, Petitioner, v. PULLMAN, INC., et al., Respondents.
    No. 79-397.
    District Court of Appeal of Florida, Fifth District.
    Aug. 6, 1980.
    John A. Baldwin, of Baldwin & Dikeou, Fern Park, for petitioner.
    David C. Beers, of Rogers & Dowling, P.A., Orlando, for respondent Pullman, Inc.
   ORFINGER, Judge.

Plaintiff was injured and his wife was killed when a tractor-trailer rig he was operating and in which his wife was riding as a passenger, left the highway and struck an embankment while travelling through the state of Alabama. Plaintiff, a Florida resident, individually and as personal representative of his wife’s estate, filed this action for damages.

Asserting that the Alabama wrongful death statute did not measure up to the standards of its Florida counterpart and that it was contrary to the public policy of Florida, plaintiff filed a motion asking the trial court to declare that the Florida wrongful death action would apply. The trial court declined to apply the Florida law and held that under the rule of lex loci delicti, the Alabama law would apply, citing Hopkins v. Lockheed Aircraft Corp., 201 So.2d 743 (Fla.1967). Plaintiff has filed a petition for writ of common law certiorari, alleging that if he is required to rely on Alabama law, the true measure of damages will not be presented to the jury because the Alabama statute is punitive while the Florida statute is remedial and that he will therefore be prejudiced throughout the trial.

The petition for certiorari is denied because there is no showing that a full, adequate and complete remedy would not be available on appeal after final judgment. Vanco Construction, Inc. v. Nucor Corp., 378 So.2d 116 (Fla. 5th DCA 1980). In Simpson v. Broward County, 241 So.2d 193 (Fla. 4th DCA 1970), it was similarly argued that the order of the trial court would deny defendants the opportunity of presenting to the jury the true elements of damages they would suffer in the eminent domain proceeding, but it was held that this was not the basis for the issuance of the writ since a full and complete remedy was available on appeal after final judgment. We cannot entertain petitions based on alleged interlocutory errors where a full remedy is available on appeal from a final judgment because “. . . one can hardly envision a case wherein the loser on an interlocutory motion would not feel an immediate appellate determination of the issue would facilitate the handling of the remainder of the case, and save time, effort and expense.” Siegel v. Abramowitz, 309 So.2d 234, 235 (Fla. 4th DCA 1975). Sometime before trial, plaintiff may be able to persuade the trial judge to his point of view, or at trial, plaintiff may not prevail on liability. In either such event, the question now before us would be moot. Our sister court recently followed the lex loci delicti rule as espoused in Hopkins, supra, on appeal from a final judgment, and has certified to the Supreme Court the question of its continued applicability in certain situations. Bishop v. Florida Specialty Paint Co., 377 So.2d 767 (Fla. 1st DCA 1979). This court has also certified an analogous question to the Supreme Court. Olsen v. State Farm Automobile Insurance Co., etc., 386 So.2d 600 (Fla. 5th DCA 1980). Perhaps those questions will be answered prior to the conclusion of the proceedings below.

This denial is without prejudice to the right of either party to present this question on appeal following final judgment.

Petition DENIED.

COBB and SHARP, JJ., concur.


text:
    Franklin D. BOLES, Jr., Appellant, v. STATE of Florida, Appellee.
    No. 80-531.
    District Court of Appeal of Florida, Fifth District.
    Aug. 6, 1980.

      Loyd C. Mosley, Clearwater, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and C. Michael Barnette, Asst. Atty. Gen., Day-tona Beach, for appellee.
   ON MOTION TO SET BAIL PENDING APPEAL

ORFINGER, Judge.

Appellant asks this court to review an order of the trial court denying bail following conviction, and pending appeal. Rule 9.140(e)(4), Fla.R.App.P.

Appellant was convicted by a jury of selling a controlled substance and after motion for a new trial was denied, was sentenced to imprisonment for five years. He immediately filed a notice of appeal and asked for bail pending the appeal, pursuant to Rule 3.691, Florida Rules of Criminal Procedure. He alleged in his motion before the trial court that the appeal was not frivolous and was not taken for delay, that appellant was a long-time resident of Pasco County, Florida, that his parents owned property there and that he had always answered every call to court. At the hearing on the motion, which was the same hearing at which the motion for new trial was argued and at which appellant was sentenced, the trial court stated:

“. . . on a supersedeas after a conviction, it is strictly discretionary, unless I find that the appeal is very likely to succeed. I have reviewed it, and of course, sit [sic] through the trial, I am of the opinion, even though I do not believe that you take frivolous appeals, I believe this appeal has got little or no chance of success unless they reverse me on that number two.”

The “number two” referred to by the court was a ground stated in the motion for new trial wherein it was alleged that the trial court erred in refusing to declare a mistrial requested by appellant because of alleged improper comment by the court.

Appellant contends that he is entitled to bail pending appeal under the principles enunciated in Younghans v. State, 90 So.2d 308 (Fla.1956); that the appeal is not frivolous and is made in good faith and on grounds fairly debatable. He contends that the trial court abused its discretion in denying bail pending appeal.

Younghans v. State, supra, declared that the threshold question to be determined by the trial court on a motion to set bail pending appeal was whether the appeal is taken in good faith, on grounds not frivolous but fairly debatable. This was further amplified in Baker v. State, 213 So.2d 285 (Fla. 4th DCA 1968) wherein the court said:

“. . . Good faith does not mean there is probable cause to believe the judgment will be reversed, but simply that the appeal is not vexatious and the defendant has assigned errors that are open to debate and about which reasonable questions exist. . . ” id. at 287.

Thus, the standard as applied by the trial court that the appeal “must be very likely to succeed” imposes a greater burden upon a defendant than is required by law under both Younghans and Baker.

We should point out that even where a defendant hurdles the threshold question, the trial court may still exercise its discretion to deny bail if there are circumstances to indicate that the accused will flee and thus evade punishment if his conviction is affirmed.

. Thus, in addition to the question of whether the appeal is taken “in good faith, on grounds not frivolous but fairly debatable,” the trial judge might consider (1) the habits of the individual as to respect for the law, (2) his local attachments to the community, by way of family ties, business, or investments, (3) the severity of the punishment imposed for the offense, and any other circumstances relevant to the question of whether the person would be tempted to remove himself from the jurisdiction of the court. In a case where the term of imprisonment imposed is short, the trial court might also consider whether the denial of bail would render nugatory the right to appeal from the judgment of conviction. . Younghans at 310.

Additionally, the court may also consider the defendant’s general record, reputation and character, which goes to establish not only the likelihood of his appearance upon disposition of the appeal but also what the probability of his conduct will be while on bail. Baker v. State, supra.

Since the trial court denied bail on the sole ground that he believed the appeal would not succeed, which is not the correct “standard of judicial action”, Younghans, supra, we remand this matter to the trial court for further consideration in accordance with this opinion. In so doing, we do not in any way express any opinion on the merits of the appeal.

REMANDED.

COBB and FRANK D. UPCHURCH, JJ„ concur.

      . The burden of making the showing is on the defendant. Rule 3.691, Fla.R.Cr.P.


text:
    Tom CASTLE, Appellant, v. STATE of Florida, Appellee.
    Nos. 80-354, 80-647.
    District Court of Appeal of Florida, Fifth District.
    Aug. 13, 1980.
    James B. Gibson, Public Defender, and Mary Sue Donsky, Asst. Public Defender, Daytona Beach, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Edward M. Chew, Asst. Atty. Gen., Dayto-na Beach, for appellee.
   ORFINGER, Judge.

This appeal questions an order denying appellant bail following conviction. The conviction itself is on appeal and we have consolidated the two causes because review of a denial of stay pending review is by motion, not by separate appeal. Rule 9.140(e)(4) Fla.R.App.P.

On the merits, the motion addressed to the trial court did not allege any grounds upon which the court could have granted a stay. The defendant has the burden of showing to the trial court that his appeal following conviction is taken in good faith, on grounds not frivolous but fairly debatable. Rule 3.691, Fla.R.Crim.P.; Younghans v. State, 90 So.2d 308 (Fla.1956); Baker v. State, 213 So.2d 285 (Fla. 4th DCA 1968). There was no such allegation or showing below.

Additionally, the defendant then has the burden of convincing the court that he will not flee and evade punishment if his conviction is affirmed, because even if he meets the first threshold, the trial court has the discretion to deny bail if the additional showing is not made. Younghans; Baker.

The motion for review is denied.

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


author: DAUKSCH, Chief Judge. DAUKSCH, Chief Judge.

text:
    Christine JACKSON, Rosa Jackson, an incompetent person, by and through her legal guardian Christine Jackson, and Irene Wilson, Appellants, v. AMERICAN MOTORISTS INSURANCE COMPANY, a Foreign Corporation, and Robert M. Lancaster, d/b/a Lancaster Insurance Agency, Appellees.
    No. 79-1360/T4-611.
    District Court of Appeal of Florida, Fifth District.
    Aug. 13, 1980.
    As Amended Sept. 17, 1980.
    William H. Roundtree, Cocoa, for appellants.
    A. Craig Cameron, Daytona Beach, for appellee American Motorists Insurance Company.
    John G. Rooney, of Smalbein, Eubank, Johnson, Rosier & Bussey, P. A., Rockledge, for appellee Lancaster.
   DAUKSCH, Chief Judge.

This is an appeal from a judgment after a jury verdict in an insurance coverage case. The question on appeal is whether the insurance carrier had the right under the law or within its contract to cancel the policy. We hold that it did not and reverse the judgment.

Briefly stated, the facts are that Christine Jackson bought a year’s worth of automobile insurance through the agent Lancaster from American Motorists. The premium charged was based upon various factors including the fact that the application for insurance stated that the one way mileage Mrs. Jackson drove to work was two miles. As a result of an investigation, the carrier determined Mrs. Jackson was driving ten miles to work. Because of this additional mileage to work, it was the carrier’s determination that the risk of accident was greater so a greater premium was due. American Motorists notified Lancaster of the need to reclassify the premium rate class. The policy was purchased in December and the notice to Lancaster was sent in February. This notice was not sent to Mrs. Jackson by American Motorists or Lancaster. There was no notice sent to her until September. At that time, the carrier sent a form to her telling her the policy was to be cancelled for non-payment of premium. She says she did not receive that notice and the trial judge ruled as a matter of law that there was no evidence to support the jury’s verdict that she did receive it. When the additional premium was not received, the carrier decided to reduce the term of the coverage and have the policy expire after 289 days instead of the initially agreed and fully paid one year. After the 289 days, but before the one year, a claim was made against the policy and Mrs. Jackson was informed she had no insurance.

We have been cited no case law directly on point and have not discovered any authority for the insurance carrier’s unilateral decision to change the insurance contract as was done here. The applicable provision of the policy is as follows:

17. Cancelation by Company Limited. Part 1. After this policy has been in effect for sixty days or, if the policy is a renewal, effective immediately, the company shall not exercise its right to cancel the insurance afforded under Part I unless:
1. the named insured fails to discharge when due any of his obligations in connection with the payment of premium for this policy or any installment thereof whether payable directly or under any premium finance plan; or
2. the insurance was obtained through fraudulent misrepresentation; or
3. the insured violates any of the terms and conditions of the policy; or
4. the named insured or any other operator, either resident in the same household, or who customarily operates an automobile insured under the policy,
(a) has had his driver’s license suspended or revoked during the policy period, or
(b) is or becomes subject to epilepsy or heart attacks, and such individual cannot produce a certificate from a physician testifying to its unqualified ability to operate a motor vehicle, or
(c) is or has been convicted of or forfeits bail, during the 36 months immediately preceding the effective date of the policy or during the policy period, for:
(1) any felony, or
(2) criminal negligence resulting in death, homicide or assault, arising out of the operation of a motor vehicle, or
(3) operating a motor vehicle while in an intoxicated condition or while under the influence of drugs, or
(4) leaving the scene of an accident without stopping to report, or
(5) theft of a motor vehicle, or
(6) making false statements in an application for a driver’s license, or
(7) a third violation, committed within a period of 18 months, or (i) any ordinance or regulation limiting the speed of motor vehicles or (ii) any of the provisions in the motor vehicle laws of any state, the violation of which constitutes a misdemeanor, whether or not the violations were repetitions of the same offense or were different offenses.
This agreement shall apply to each successive policy period for which the company consents to renew or continue this policy but nothing herein shall obligate the company to renew or continue the policy.

In February when the carrier determined a material misrepresentation or a fraudulent misstatement had been made in the application, the carrier could have cancelled the policy in the statutorily mandated fashion. Sec. 627.728, Fla.Stat. So far as any other alternative, such as the one chosen by the carrier here, we find none exists. Here the carrier reduced the period of time for the coverage. We cannot condone that unilateral action any more than we would allow the reduction in the amount of coverage from, say $15,000.00 to $5,000.00; or take out the collision coverage and leave in the liability or vice versa.

The judgment for appellee, American Motorists Insurance Company, is reversed and this cause remanded to enter judgment for plaintiffs against American Motorists Insurance Company for the amount of damages the jury found was sustained.

REVERSED AND REMANDED.

ORFINGER and COBB, JJ., concur.

UPON MOTION FOR CLARIFICATION

DAUKSCH, Chief Judge.

Because we have been advised the parties entered into certain stipulations before trial in regard to recoverable damages which might be affected by our disposition of this case, we change the last paragraph of the opinion to read

The judgment for appellee, American Motorists Insurance Company, is reversed and this cause remanded for further consideration of the trial court in accordance with the opinion of this court that the attempted cancellation of coverage by the American Motorists Insurance Company was ineffective.

The judgment for appellee, Robert M. Lancaster, d/b/a Lancaster Insurance Agency, is affirmed.

ORFINGER and COBB, JJ., concur.


text:
    Mary Ann BROWN, Appellant, v. STATE of Florida, Appellee.
    No. 80-580.
    District Court of Appeal of Florida, Fifth District.
    Aug. 20, 1980.
    James B. Gibson, Public Defender, and H. B. Pearl, Asst. Public Defender, and Ronald K. Zimmet, Chief, App. Division, Asst. Public Defender, Daytona Beach, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Phillip D. Havens, Asst. Atty. Gen., Dayto-na Beach, for appellee.
   ON MOTION TO DISMISS

DAUKSCH, Chief Judge.

This is before us on a motion to dismiss a criminal appeal. The motion was filed when the attorney general found out that appellant had escaped from prison. After receiving the motion we ordered appellant, through her counsel, to show cause why the appeal should not be dismissed. Appellant responded by saying, essentially, that although she had escaped, she was now back in prison and awaits her prosecution for the escape. She does not want her appeal dismissed and cites Marshall v. State, 344 So.2d 646 (Fla.2d DCA), cert. denied, 853 So.2d 679 (Fla.1977), as authority for us to allow her appeal to proceed. We agree with the decision in Marshall for the reasons stated in that opinion. Concisely stated, because appellant is in custody under the jurisdiction of this court and subject to the mandate of this court, we would not be wasting our time in reviewing the case. The rationale for dismissing an appeal of an escaped prisoner is set out in Woodson v. State, 19 Fla. 549 (1882), as cited in Marshall. That rationale fails when the absconded appellant finds herself back in Florida custody before the appeal is dismissed. This is not to say we would reinstate an appeal once it had been dismissed after escape and before capture. Nor do we mean to encourage short vacations from prison. The dismissal of an appeal is not a recognized form of punishment for escape, nor should it be without specific legislation, and as was said in Marshall, escape does constitute a waiver of an appeal right. However, we hold that if an appellant in a criminal case escapes from lawful confinement, or voluntarily, without authorization, absents himself from the jurisdiction of this court while on probation, then his appeal is subject to dismissal and if dismissed will not be reinstated upon return to the jurisdiction of the court. The appeal will not be dismissed if the appellant is under the jurisdiction of this court at the time the motion to dismiss is decided.

MOTION DENIED.

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


text:
    Howard DOUGLAS, Appellant, v. FLORIDA DEPARTMENT OF CORRECTIONS, Appellee.
    No. OO-420.
    District Court of Appeal of Florida, First District.
    Aug. 26, 1980.
    Rehearing Denied Oct. 27, 1980.
    Richard A. Belz, Gainesville, for appellant.
    Jim Smith, Atty. Gen., Horace Schow, II, Asst. Atty. Gen., for appellee.
   PER CURIAM.

Sua sponte, we dismiss this appeal since appellant has neglected a clear point of entry to Section 120.56 proceedings by filing a rule challenge before the Division of Administrative Hearings as required by Section 120.56(2), Florida Statutes (1979). See Krestview Nursing Home v. Dept. of Health, 381 So.2d 240 (Fla. 1st DCA 1979). Compare June Rice and Stephen Dudley Stitt v. Department of Health and Rehabilitative Services, 386 So.2d 844 (Fla. 1st DCA 1980).

The appeal is dismissed without prejudice to appellant’s right to initiate an administrative rule challenge proceeding under Section 120.56.

DISMISSED.

ERVIN and SHAW, JJ., and MELVIN, WOODROW M. (Retired), Associate Judge, concur.


author: LETTS, Chief Judge.

text:
    Henry R. SLINGERLAND, Jr. et al., Appellants/Cross-Appellees, v. Raymond HURLEY et al., etc., Appellees/Cross-Appellants.
    No. 79-51.
    District Court of Appeal of Florida, Fourth District.
    Aug. 27, 1980.
    Rehearing Denied Oct. 24, 1980.

      Edna L. Caruso, West Palm Beach, and Gerald M. Wochna of Lavalle, Wochna, Rutherford, Maher & Truesdell, P.A., Boca Raton, for appellants/cross-appellees.
    Jerry Oxner of Oxner & Brown, West Palm Beach, for appellees/cross-appellants.
   LETTS, Chief Judge.

This appeal arises as the result of a written partnership agreement covering a real estate project which the project’s managing partner used to further certain dealings intended to accrue only to his benefit (or that of his corporations) and not to the benefit of the remaining partners. We affirm in part and reverse in part.

When the real property in question was first purchased by the investors, the contract to purchase it did not disclose that $35,000 of joint partnership funds was to be used to pay off a prior debt long since owed by the managing partner to the seller. However, because that seller refused to conclude the transaction absent a satisfaction of said indebtedness, the Special Master found that the inflated expenditure of $35,000 was a “necessary cost of doing business.” His finding and recommendation were approved by the trial judge. We disagree.

We cannot dispute the factual finding that it was necessary to pay off the $35,000 in order to facilitate the purchase, but that does not excuse it and, so far as the managing partner is concerned, under the facts of this case, the end did not justify the means. In all dealings with those who place their faith and trust in any fiduciary, the latter’s standard of conduct must equal that of Caesar’s wife. Fuller v. Pierce, 109 So. 238 (Fla.1926); Chipola Valley Realty Co. v. Griffin, 115 So. 541 (Fla.1927); Willis v. Fowler, 136 So. 358 (Fla.1931); Singletary v. Mann, 24 So.2d 718 (Fla.1946); Lieberbaum v. Levine, 54 So.2d 159 (Fla.1951). The obligation to pay an additional $35,000 for the purchase did not appear anywhere on the written contract of sale for the subject property and was nowhere included in the stated price. Moreover, as we have said, the $35,000 obligation was incurred by the managing partner before he ever entered into the agreement with the partnership investors. As such, he is obligated to the partnership for the full $35,000 which we hereby order him to repay forthwith.

Not content with the above, the managing partner also proceeded to sell off a portion of the partnership holdings (Carriage Hill II) to a purchasing corporation in which he and/or his wife were the majority stockholders. This partial sale was effected without a current market value appraisal of the land sold despite the fact that prior appraisals indicated the price paid was between $600,000 and $900,000 less than market value.

It is argued first that the sale was conducted without appraisal because of the existence of an emergency and lack of any other offers. However, our review of the record does not disclose any critical time shortage which would excuse noncompliance with such a basic and relatively easily obtainable requirement as a current appraisal especially when prior appraisals set the price higher.

It is also argued that the managing partner made no profit from this purchase and in fact lost the land purchased because of a later foreclosure. We are likewise unimpressed with this argument. The outcome is not merely controlled by whether or not a profit was made. The critical question is: Did he, the managing partner, pay full market value for the property on the date he purchased it? The trial court never answered this question although there is testimony that he did not. Accordingly, we hereby remand this cause to determine the market value of the property purchased by the managing partner and/or his corporation on the date of purchase. If he paid too little then he owes the partnership the difference between the purchase price and the market value on the date of sale because he cannot take in-house advantage of his co-partners. § 620.66, Fla.Stat. (1977). See also: Orlando Grove Co. v. Hale, 144 So. 674 (Fla.1932); Snead v. U. S. Trucking Co., 380 So.2d 1075 (Fla. 1st DCA 1980); Liberbaum v. Levine, 54 So.2d 159 (Fla.1951); Flight Equipment & Engineering Corp., 103 So.2d 615 (Fla.1958); Restatement of Agency § 407.

We wish we could finally decide and not remand this case. As the Special Master said of one of the managing partner’s corporation’s, “. . . we are told . that the books of that Company were scrambled beyond control.” The late distinguished jurist Culver Smith observed of this controversy, which began in his division, this is a “career case” and the Special Master agreed adding, “it has been, is and will continue to be.” The message is obvious and borne out by the voluminous record. This is really a grudge match. The appellant, who is an heir to the Slingerland percussion instrument fortune, insists that everyone must march to his choice of drummer while the operating partner believes he can play the Pied Piper of Hamlin and pipe all of his investors off any financial cliffs of his choosing without accountability. As we perceive it, both should face the music yet to be played in this unfinished symphony — more attorneys fees and costs.

There are many other points on appeal and cross-appeal, which concern themselves with a myriad of other irregularities, charges and counter-charges. However, after careful consideration of a vast and confusing record, we find no other reversible error and the final judgment is affirmed in all respects except as stated herein.

AFFIRMED IN PART, REVERSED IN PART AND REMANDED IN ACCORDANCE HEREWITH.

MOORE and GLICKSTEIN, JJ., concur.

      . The Special Master has ordered an accounting which we affirm based on “total disregard for the need to account.”


author: MILLS, Chief Judge. WENTWORTH, Judge,

text:
    Willis JONES, Appellant, v. PLANTATION FOODS, Fidelity and Casualty Company of New York and Travelers Insurance Company, Appellees.
    No. RR-51.
    District Court of Appeal of Florida, First District.
    Aug. 28, 1980.
    Rehearing Denied Oct. 13, 1980.

      Abrams & Susskind, North Miami Beach, for appellant.
    Summers, Warden and Gladson & Sullivan, Miami, for appellees.
   MILLS, Chief Judge.

The claimant, Willis Jones, appeals from an order of the Judge of Industrial Claims, challenging the determination of the degree of impairment resulting from one accident and the failure of the judge to order the payment of medical bills for services performed at the request of an authorized physician.

Regarding the first issue, it appears from the record and order that the judge considered the substance of some medical reports in arriving at his impairment rating even though those reports were admitted only for the purposes of proving knowledge on the part of the insurance company of assignment of impairment and for purposes of attorney’s fee.

In the part of the order establishing the impairment rate, the judge stated that Dr. Abel (a report not contested) set a rate of 3%, Dr. Silverman (contested) a rate of 3 to 4%, Dr. Unger (contested) contradicted himself, and Dr. Russell (contested) set a rate of 5%. In accepting the 5% rating, he stated, “Dr. Russell believed five percent and is adopted because [it is] consistent with the employee’s use of his body sitting and standing during the hearing.”

Even though the judge considered medical reports not in evidence for that purpose in establishing the impairment rating, we affirm the five percent rating because it was not based solely on the medical reports. It was also based on the judge’s observations of Jones’ use of his body during the hearings. Under Magic City Bottle & Supply Co. v. Robinson, 116 So.2d 24 (Fla.1959), it is within the judge’s discretion to reject the medical testimony and rely instead on lay testimony or demonstrative evidence.

The second issue involves the judge’s rejection of a claim for payment of a bill from Dr. Sternberg. The record reveals that the employer referred Jones to Dr. Teitelbaum and Dr. Teitelbaum referred him to Dr. Sternberg for evaluation. Dr. Sternberg saw Jones eleven times,- some of those visits were for testing and evaluation and others were for treatment. Dr. Stern-berg was authorized by virtue of the referral to him by the authorized physician, Dr. Teitelbaum. McKinney v. McKinney Farms, 380 So.2d 469 (Fla. 1st DCA 1980). The authorization extended, however, only to the evaluation and not to the treatments.

We would order the payment of Dr. Sternberg’s bills based on the above holding if it were not for the fact that he failed to timely submit the reports required by Section 440.13, Florida Statutes (1975). The judge’s order made note of this failure, but he made no finding concerning whether there was prejudice to the employer-carrier or whether good cause was shown. Accordingly, we reverse the denial of payment of Dr. Sternberg’s bills related to evaluation and remand for consideration of the question of prejudice caused by the failure to file timely reports.

AFFIRMED in part; REVERSED in part; remanded for further consideration in light of this opinion.

McCORD, J., concurs.

WENTWORTH, J., specially concurs.

WENTWORTH, Judge,

concurring.

I agree with the court’s opinion but would affirm the permanency rating for the August 1976 accident only because no issue was raised as to applicability of § 440.-25(3)(b), Florida Statutes, as amended in 1978 to alter Magic City v. Robinson, 116 So.2d 24 (Fla. 1959). The amendment on standard of proof might have been properly invoked in this hearing conducted after its effective date in accordance with decisions applying statutes on remedies, including standard of proof, as amended at time of trial. Summerlin v. Tramill, 290 So.2d 53 (Fla. 1974). Section 25 of Chapter 78-300, Laws of Florida, limiting the act to subsequent injuries, would in my opinion relate to substantive changes. Cf., Myers v. Carr Construction, 387 So.2d 417 (Fla. 1st DCA 1980).


text:
    Jack ALEXANDER, Appellant, v. ALLSTATE INSURANCE COMPANY, a Foreign Corporation, Appellee.
    No. 79-38.
    District Court of Appeal of Florida, Fifth District.
    Sept. 10, 1980.
    Rehearing Denied Oct. 7, 1980.
    John R. Overchuck of Maher, Overchuck & Langa, Orlando, for appellant.
    Reinald Werrenrath, III of Akerman, Senterfitt & Eidson, Orlando, for appellee.
   DAUKSCH, Chief Judge.

This is an appeal from an order denying a directed verdict and from the resultant final judgment in an uninsured motorists coverage case wherein declaratory relief was sought. We reverse.

The question on appeal is whether there was sufficient evidence of non-compliance with the insurance policy requirements. We find the evidence insufficient to support the carrier’s allegation.

Jack Alexander was the victim of an accident in Kentucky where a car forced his car off the road. His car was damaged and he was injured. The next day, within twenty-four hours of the accident, Allstate was notified of the accident. The police were not notified. The insurance policy required: “The accident must be reported within twenty-four hours to the proper authorities. We must be notified within thirty days.” Appellee, Allstate, urges the failure of the insured to report the accident to the police breached the policy requirement of reporting “to the proper authorities.” Appellant says the policy is ambiguous because it does not define or explain what “proper authorities” means. While we quite agree the policy would be clearer if it said what it obviously meant-police-we do not need to decide the question of whether the policy is ambiguous. A lot of litigation would be unnecessary if insurance policy drafters would try to write without using ambiguous phrasing. Why not say the word police when that is what is meant? Or if the drafter likes to use many words where one would suffice, he could say “notify that governmental authority charged with the investigation of motor vehicle collisions” or some such bloated phraseology. In any event, it is our determination that the failure to notify the police was not required of this insured because there was inadequate proof he had ever received the insurance policy which set out that requirement and even if there was proof of delivery, there was no prejudice to Allstate because of the failure to notify.

Jack Alexander testified he never received the policy before the accident and the first time he saw the policy was after the accident when he went to Sears to get a copy of one. To rebut the testimony of Alexander, Allstate provided testimony from William Lipford, a claims representative for Allstate. He is not a sales agent for Allstate but he said he was familiar with the procedure of Allstate and how the agents sent out policies. He said the Alexander policy was a new edition of the standard auto policy and after extensive objection and voir dire by Alexander’s lawyer, he was permitted to testify about the business practices of the sales agents for Allstate. It is Allstate’s position that Lipford’s testimony was sufficient to prove delivery of the policy and cites the following question and answer as an important portion of his testimony:

Q And is it fair to conclude then from what you are telling us that because of the fact that on January 1, ’77, Allstate changed all its automobile insurance policies, that the people in Florida who were insured with Allstate at that time were routinely sent the policies that are identical to Plaintiff’s Exhibit One, that brown policy?
A Yes, sir.

It is our conclusion the insurance claims representative, also called adjuster, was not proved to be qualified to testify as to the usual business practices of the sales agents and their separate offices and that Lip-ford’s testimony was insufficient, even if he were qualified, to prove the policy was delivered to Alexander. His testimony is thus legally incompetent. In order to prove a fact of evidence of usual business practices, it must first be established that the witness is either in charge of the activity constituting the usual business practice or is well enough acquainted with the activity to give the testimony. Mastan Co., Inc. v. American Custom Homes, Inc., 214 So.2d 103 (Fla. 2d DCA 1968); Holt v. Grimes, 261 So.2d 528 (Fla. 3d DCA 1972). This adjuster was not shown to be so qualified. Additionally, proof of practice, habit, or custom alone does not constitute performance of an act on a specific occasion; there must also be some proof that practice was followed in the particular circumstance. Bernstein v. Liberty Mutual Insurance Company, 294 So.2d 63 (Fla. 3d DCA 1974). Therefore, just because this adjuster presumed it was done because to his knowledge it was always done does not prove it was done.

The nature of the accident and the testimony of a policeman at trial leads to the conclusion that even if the accident was reported to the police, the benefit to the insurance company was so remote that it was not prejudiced by the failure to report the accident. This accident happened at night on a country road, far from a town; the insured could not identify the vehicle with any substantial degree of particularity and no “tracks” or leads to the vehicle were thought to have been left by the hit-and-run vehicle. This latter fact was put in evidence by an expert police witness. Because Allstate knew of the accident within twenty-four hours, did not investigate it for some four months after it occurred and no physical evidence was likely to have been discovered, Allstate was not really prejudiced by the lack of notification to the police.

The judgment for appellee is reversed and this cause is remanded for entry of judgment for appellant and such further proceedings as are necessary.

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


text:
    Charles KIESEL and Hilbert Kiesel, Appellants, v. Governor Bob GRAHAM, Attorney General Jim Smith, Secretary of State George Firestone, Comptroller Gerald Lewis, Commissioner William Gunter, Commissioner Ralph Turlington, and Commissioner Doyle Conner, as heads of the State of Florida, Department of Natural Resources, Appellees.
    No. NN-146.
    District Court of Appeal of Florida, First District.
    Sept. 10, 1980.
    Rehearing Denied Oct. 8, 1980.

      Ben H. Ervin, Monticello, for appellants.
    Jack W. Pierce, S. Sherman Weiss, of Dept, of Natural Resources, Martin S. Friedman, of Dept, of Legal Affairs, and David V. Kerns, of Dept, of Administration, Tallahassee, for appellees.
   LILES, WOODIE A., Associate Judge (Retired).

This is an appeal from an order holding that an action on a judgment of the United States District Court, even though that court is located within the State of Florida, is controlled by the five-year period of limitation as set forth in Section 95.11(2)(a), Florida Statutes.

There are no factual disputes involved in this appeal. Appellants, plaintiffs below, brought an action in admiralty against the State of Florida, Department of Natural Resources and its agent for damages caused by the loss of their vessel. The District Court of the United States for the Southern District of Florida found that the negligent actions of the agent caused the loss of Appellants’ vessel, and on July 21, 1972, entered a judgment for Appellants in the amount of $22,000.00. This judgment was affirmed by the United States Court of Appeal, Fifth Circuit, on June 25,1973. On January 5, 1979, Appellants filed with the Circuit Court of the Second Judicial Circuit, in and for Leon County, Florida, a Petition for Writ of Mandamus ordering that Appel-lees make payment. An Alternative Writ of Mandamus commanding Appellees to make payment or show cause why they have not done so was then issued. Appel-lees filed their return claiming, among other things, that the cause of action was barred by Section 95.11(2)(a), Florida Statutes, in that the suit was filed more than five years after the accrual of the cause of action on July 19, 1973, and more than one year after the effective date of Chapter 74-382, Laws of Florida. The Circuit Court agreed with this contention and dismissed the cause with prejudice. This appeal followed.

The issue presented by this appeal is whether an action on the judgment of the United States District Court for the Southern District of Florida is governed by a five-year statute of limitation or a twenty-year statute of limitation. The applicable sections of the Florida Statutes are: Section 95.11(1), which provides that “an action upon a judgment or decree of a court of record in this state” shall commence within twenty years of said judgment or decree; and Section 95.11(2)(a), which provides that “an action on a judgment or decree of . any court of the United States” shall commence within five years of said judgment or decree. Both of the above statutory provisions appear to govern the instant situation, for the subject judgment is that “of a court of record in this state” as well as that “of any court of the United States.” This apparent conflict, however, can be readily resolved by resort to well-accepted principles of statutory construction.

It is a general rule of statutory construction that a more specific statute covering a particular subject is controlling over a statutory provision covering the same subject in more general terms. In this situation, the phrase “of any court of the United States” is more specific than “of a court of record in this state.” The former clearly limits its scope to courts of the United States, while the latter could include both federal and state courts, as long as they are in Florida. Hence, it must be concluded that Section 95.11(2)(a) will operate as an exception to, or a qualification of, the more general terms of Section 95.11(1). Adams v. Culver, 111 So.2d 665 (Fla.1959); Woodley Lane, Inc. v. Nolen, 147 So.2d 569 (Fla. 2d DCA 1962); State ex rel. Johnson v. Vizzini, 227 So.2d 205 (Fla.1969).

This result is further supported by the corollary principle that the last expression of legislative will is the law, and, therefore, that the last in point of time or order of arrangement prevails. This rule is applicable where the conflicting provisions appear in different statutes [Sharer v. Hotel Corporation of America, 144 So.2d 813 (Fla. 1962)], or in different provisions of the same statute. State v. Hialeah, 109 So.2d 368 (Fla.1959); DeConingh v. Daytona Beach, 103 So.2d 233 (Fla. 1st DCA 1958). In this situation, two provisions in the same act, the former covering “court[s] of record in this state” and the latter covering “[judgments of] any court of the United States,” are in direct conflict. Application of the principle set forth in State v. Hialeah, supra, and DeConingh v. Daytona Beach, supra, dictates that the latter provision, now enumerated in Section 95.11(2)(a), must govern.

We, therefore, conclude that Section 95.11(2)(a), Florida Statutes, is controlling in this cause. In so ruling, we are not unmindful of the provisions of 28 U.S.C. § 1962. However, inasmuch as nothing in the record indicates that the subject judgment was properly recorded as a lien, we do not find this United States Code provision relevant to this determination.

The order appealed from is

AFFIRMED.

ROBERT P. SMITH, Jr., J., concurs.

BOOTH, J., dissenting.

      . Prior to January 1, 1975, the time period for the running of the statute of limitation in Section 95.11(2)(a), F.S., was seven years. This was changed to five years by Chapter 74-382, § 7, Laws of Florida.
      In addition, Chapter 74-382, § 36, mandated:
      This act shall become effective on January 1, 1975, but any action that will be barred when this act becomes effective and that would not have been barred under prior law may be commenced before January 1, 1976, and if it is not commenced by that date, the action shall be barred.

      . Chapter 74-382, § 7, Laws of Florida.

      . Every judgment rendered by a district court within a State shall be a lien on the property located in such State in the same manner, to the same extent and under the same conditions as a judgment of a court of general jurisdiction in such State, and shall cease to be a lien in the same manner and time. Whenever the law of any State requires a judgment of a State court to be registered, recorded, docketed or indexed, or any other act to be done, in a particular manner, or in a certain office or county or parish before such lien attaches, such requirements shall apply only if the law of such State authorizes the judgment of a court of the United States to be registered, recorded, docketed, indexed or otherwise conformed to rules and requirements relating to judgments of the courts of the State.

      .See, Section 55.10, Florida Statutes.


author: SHAW, Judge. ERVIN, Judge.,

text:
    DEPARTMENT OF REVENUE, and Department of Banking and Finance, Appellants, v. U. S. SUGAR CORPORATION, Appellee. UNITED STATES SUGAR CORPORATION, Appellant, v. DEPARTMENT OF REVENUE and Department of Banking and Finance, Appellees.
    Nos. MM-389, NN-467.
    District Court of Appeal of Florida, First District.
    Sept. 11, 1980.
    Rehearing Denied Oct. 20, 1980.

      Jim Smith, Atty. Gen., and Cecil L. Davis, Jr., Asst. Atty. Gen., Tallahassee, for Dept, of Revenue and Dept, of Banking and Finance.
    K. Lawrence Gragg of Mershon, Sawyer, Johnston, Dunwody & Cole, Miami, for U. S. Sugar Corp.
   SHAW, Judge.

The taxpayer, United States Sugar Corporation, has a division which raises and sells cattle to buyers throughout the United States. All cattle are sold f. o. b. Clewiston, Florida, the location of the corporation’s ranch, purchaser providing transportation from Clewiston to the point of final destination.

Based upon the taxpayer’s interpretation of § 214.71(3)(a), Florida Statutes (1977), which reads in pertinent part as follows, a refund was sought:

Sales of tangible personal property are in this state if the property is delivered or shipped to a purchaser within this state, regardless of the f. o. b. point or other conditions of the sale.

The Department of Revenue denied the claim and the taxpayer filed a petition for formal proceedings under § 120.57(1), Florida Statutes, challenging the Department’s position. Subsequent to the filing of the petition it was brought to the Department’s attention that the cattle had been shipped by private contract carriers. In refusing a refund the Department advised the taxpayer that:

It was determined that cattle were shipped via commercial carrier. Further, it was ascertained that these carriers were “contract carriers” and not “common carriers”. Because the purchaser could redirect shipment of cattle by contract carrier (independent cattle haulers and chartered aircraft), the sales are deemed to have been made in Florida at the point where carrier took possession of cattle. The contract carrier, under the described circumstances, is acting as purchaser’s agent. In the capacity of special agent for purchaser, the carrier accepted delivery of the cattle in Florida. (Tax Audit Statement)

Following this position statement U. S. Sugar filed a petition for formal proceedings to determine the validity of a rule pursuant to § 120.56, Florida Statutes, asserting that the Department’s policy, as set forth in the tax audit statement, constituted a rule not properly promulgated. The petitions were consolidated, and the hearing officer entered an order in the § 120.56 proceeding and a recommended order in the § 120.57(1) proceeding.

In the recommended order the hearing officer found that had the cattle been picked up by a common carrier for shipment outside of Florida the Department would have held that the sales were out-of-state, but because the cattle were picked up by contract carrier the Department classified them as in-state and directed its auditors to so conclude on all audits. The Department rejected the recommended order and submitted a proposed substitute order which was adopted as the final order.

In light of testimony by Department personnel that the only reason the cattle sales in issue were treated as in-state sales was because they were shipped by contract carrier, it is difficult to accept the Department’s argument that its policy of classifying sales on the basis of the type of carrier utilized is not a policy of general applicability. Section 214.71(3)(a), Florida Statutes, makes no distinction between common carrier and contract carrier. The Department, by making such a distinction, has placed upon the statute an interpretation that is not readily apparent from a reading of the statute, but impacts upon the taxpayer with the consistent effect of law. We agree with the hearing officer’s conclusion that the statement is one of general applicability that implements, interprets or prescribes law, policy, procedure or practice requirements of the agency and falls squarely within the definition of a rule as defined by § 120.52(14), Florida Statutes (1977). State, Dept. of Com., Etc. v. Matthews Corp., 358 So.2d 256 (Fla. 1st DCA 1978); State, Dept. of Admin., Etc., Person, v. Harvey, 356 So.2d 323 (Fla. 1st DCA 1978); State, Dept. of Administration v. Stevens, 344 So.2d 290 (Fla. 1st DCA 1977). See also Fraser v. Lewis, 360 So.2d 1116 (Fla. 1st DCA 1978) and McDonald v. Dept. of Banking and Finance, 346 So.2d 569 (Fla. 1st DCA 1977).

Affirm MM-389.

Reverse NN-467.

SHIVERS, J., concurs.

ERVIN, J., specially concurring, with opinion.

ERVIN, Judge.,

specially concurring.

I agree with the conclusions expressed by the majority in these consolidated appeals, but because of the posture of the record, I think it unnecessary to reach the issue presented in the appeal from the order declaring the agency’s action an invalid rule because not regularly adopted. When as here the policy reasons supporting agency action are crystallized through adjudication, I see no necessity to classify the action taken as either rule or order. The thrust of our inquiry should be directed simply to whether the final agency order, recognizable under Section 120.59, sufficiently explained the action taken, and, if it did so, whether it was “within the agency’s exercise of delegated discretion.” Section 120.68(7). If we find the action met the above conditions, then we should sustain it even though the agency’s statement may have all the characteristics of Section 120.-52(14)’s definition of rule. If on the other hand the action complied with neither condition, we should for that reason only reject it.

The department’s justification for treating the sales as “in this state” under Section 214.71(3), was that if the corporation sells goods to an out-of-state buyer, and the goods are transported by the seller to the buyer, either by common carrier, contract carrier, or the seller’s vehicles, it does not consider such sales as occurring in Florida because delivery between the seller and buyer did not occur until the goods were in interstate commerce. If, however, goods are picked up in Florida by the buyer’s own trucks, or by private contract carriers hired by the buyer, the department considers the sales occur in Florida and are therefore includable within the numerator of the Florida sales factor, Section 214.71(3), because “delivery between the seller and buyer took place before the goods were shipped in interstate commerce and were shipped out of Florida.” Additionally, it views delivery to the buyer’s agents under such circumstances as delivery to the buyer in this state.

The department’s interpretation of Section 214.71(3)(a) is supported by both the Uniform Commercial Code relating to sales transactions and the Florida Revenue Act of 1949. And its policy reasons were fully explained in its final order, but its interpretation of Section 214.71(3)(a)l conflicts with the unambiguous legislative intent that the disputed sales, occurring in the manner described, are taxable only by the state where the goods are shipped.

Florida’s income tax code is partially derived from the Uniform Division for Income Tax Purposes Act (UDITPA). Specifically, Section 16 of UDITPA provides:

Sales of tangible personal property are in this state if:
(a) the property is delivered or shipped to a purchaser, other than the United States Government, within this state regardless of the f.o.b. point or other conditions of the sale; or
(b) the property is shipped from an office, store, warehouse, factory or other place of storage in this state and (1) the purchaser is the United States government or (2) the taxpayer is not taxable in the state of the purchaser.

During the formulation of the Uniform Act, approved by the National Conference of Commissioners on Uniform State Laws in 1957, three factors were considered necessary to determine each state’s apportionment formula: property, payroll and sales. Lynn, The Uniform Division of Income for Tax Purposes Act, 19 Ohio St.L.J. 41, 47 (1958). The question of how to assign sales of tangible personal property was the most controversial item before the conference. Id. at 49. It considered four different tests: (1) the sales destination test, attributing sales receipts to the state in which the goods are shipped or delivered to the customer; (2) the sales origin test, attributing sales receipts to the state of the factory, warehouse, or office from which the goods are shipped; (3) the sales office negotiation test, attributing such receipts to the state where the sale was principally negotiated, and (4) the sales activity test, attributing them to the state where the sales employees principally conduct their selling activities. J. Hellerstein and W. Hellerstein, State and Local Taxation: Cases and Materials 459 (4th ed. 1978).

The draftsmen’s adoption of the destination test, reflected in Section 16(a), UDIT-PA, sought to give recognition to the consumer state’s contribution to the production of the corporation’s income. Pierce, The Uniform Division of Income for State Tax Purposes, 35 Taxes 747, 780 (1957). While recognizing that the origin test was the preferred choice of the manufacturing states, the “conference was of the opinion that [the adoption of such test] would merely duplicate the property and payroll factors which emphasize the activity of the manufacturing states, so that there would tend to be a duplication by such a sales factor.” Pierce, supra at 780. Finally, other commentators commend the attribution of sales to the state of destination over all other tests, including the test dependent on where title passes, the latter criticized as dependent “wholly upon legal conclusions based upon construction of contracts, terms of waybills, customs in the business, evidence as to the intention of the parties, and other considerations having little or no relation to the problem of determining where income is earned . . ..” Keesling and Warren, California’s Uniform Division of Income for Tax Purposes Act, 15 UCLA L.Rev. 655, 670 (1968).

It clearly appears that the intention of the draftsmen of the Uniform Act was that sales of tangible personal property should be taxed only in the state of destination unless the buyer is the United States government or the taxpayer is not taxable in the state of the purchaser. Lynn, Formula Apportionment of Corporation Income for State Tax Purposes: Natura Non Facit Saltum, 18 Ohio St.L.J. 84, 98 (1957). In the latter case, such sales are assigned, or thrown back, to the state from which the goods are shipped. Id..

The intent of the Florida legislature closely parallels that of the draftsmen of UDITPA, and it goes even further than its prototype since it presently contains none of the throwback provisions of subsection (b). As originally enacted, Section 214.71(3) was almost identical to Section 16. See Ch. 71-359, Part IV, Laws of Florida. However, in response to the recommendation of the Special Tax Counsel to the Florida House of Representatives that the act be amended, the legislature deleted the act’s throwback provisions. See Section 2, Chapter 71-980, effective January 1, 1972. As amended, Section 214.71(3)(a)l reflects the adoption of “a pure ‘destination test for determining the source of sales, . . ..” England, Corporate Income Taxation in Florida: Background, Scope and Analyses, 14-15 (special publication of the Florida State L.Rev., 1972).

The department’s interpretation of the statute was clearly at variance with the legislative intent that sales of tangible personal property shipped from the state of origin be included only within the sales factor numerator of the state of destination. If that state does not tax, or lacks jurisdiction to tax, or is otherwise prohibited by law to tax, such sales are apparently not taxable anywhere.

Because the department’s policy was not within its exercise of delegated discretion, I agree with the majority that the agency action must be set aside.

      . The taxpayer, a Delaware corporation, with its principal place of business in Florida, requested and received a Section 120.57(1) hearing and a Section 120.56 hearing, both of which were consolidated into one proceeding. Different orders were entered as to each, hence these separate appeals.

      . See McDonald v. Dept. of Banking and Finance, 346 So.2d 569, 581 (Fla. 1st DCA 1977), where we recommended the “desirability of refining incipient agency policy through adjudication of individual cases. . [because] even the agency that knows its policy may wisely sharpen its purposes through adjudication before casting rules.” (emphasis in original) See also White, etc. v. State, Dept. of Transp., 368 So.2d 411 (Fla. 1st DCA 1979) (Ervin, J., concurring and dissenting).

      .All of the disputed sales took place under these circumstances. The taxpayer concedes that if delivery was made directly to the buyer in Florida, the sale occurred in Florida even though the property is later transported to another state by the buyer or his agents.

      . The code provides that if the sale is described as f. o. b. the place of shipment, such is a delivery term and, in the absence of explicit agreement otherwise, the risk of loss passes to the buyer upon the delivery of the goods to the carrier, who is deemed to be the buyer’s agent. Sections 672.319(l)(a), 672.504 and 672.-509(l)(a). Moreover, if the contract requires the seller to send the goods to the buyer and does not require him to deliver at the place of destination, title passes to the buyer at the time and place of shipment. Section 672.401 (2)(a).

      . Section 212.06(5)(a) provides that sales of tangible personal property exported from this state are subject to the sales tax if the producer delivers the property “to a common carrier for shipment outside the state . . .” See also Fla.Admin. Code Rule 12A-1.64(2)(b), imposing a retail sales tax upon the sale of tangible personal property within this state if “the dealer is required by the terms of the sale contract to deliver the goods to a common carrier

      . In suggesting the amendment to Section 214.-71(3)(a), the Special Tax Counsel appended industry’s position, stated in a memorandum prepared for the Committee on State Taxation, Council of State Chambers of Commerce by General Electric’s consultant on state and local tax accounting, which argued that inclusion of sales within the sales factor of the formula should be strictly on a destination basis because “in order for the taxpayer to have an income to be distributed among the states, it is necessary that effort be devoted to selling the product. In other words, no matter how much is manufactured, there is no income to be apportioned until the product is sold.” A. England, Report to the House on Corporate Income Tax Legislation, Part III, at 3-5 (November 3, 1971).

      . UDITPA, § 3, not enacted in Florida, provides that a foreign taxpayer is taxable in another state if he is subject to a net income tax or would be required to pay a net income tax if that state adopted such a tax. The act assumes that every state in which the taxpayer does business levies an income tax, whether it does so or not, thereby assuring “that 100 per cent of the income of a multistate business theoretically will be taxed by the several states.” Pierce, supra at 749.

      . A state may constitutionally tax the income of a business operating in interstate commerce if there exists a “nexus” between the interstate activities and the taxing state, and a rational relationship between the income attributed to the state and the intrastate values of the enterprise. Exxon Corp. v. Wisc. Dept. of Revenue, - U.S. -, 100 S.Ct. 2109, 65 L.Ed.2d 66 (1980) (48 U.S.L.W. 4687); Mobil Oil Corp. v. Commissioner of Taxes, 445 U.S 425, 100 S.Ct. 1223, 63 L.Ed.2d 510 (1980). See also Moorman Mfg. Co. v. Bair, 437 U.S. 267, 98 S.Ct. 2340, 57 L.Ed.2d 197 (1978), and Northwestern States Portland Cement Co. v. Minnesota, 358 U.S. 450, 79 S.Ct. 357, 3 L.Ed.2d 421 (1959).

      . Public Law Number 86-272 (codified at 15 U.S.C. § 381 (1976)) prevents a state from imposing a net income tax on foreign corporations deriving income from interstate commerce in the state if a corporation’s only activities in the state were soliciting orders for sales of tangible personal property or effecting such sales through independent contractors.

      . But see Illinois’s approach to the problem, holding the relief provisions of UDITPA, § 18 (enacted in Illinois at Ill.Rev.Stat. ch. 120, § 3-304(e), and in Florida at Section 214.73), authorized the state to include in the numerator of a corporation’s Illinois sales factor receipts from sales of property shipped both from and to states in which the corporation was not taxable. GTE Automatic Electric, Inc. v. Allphin, 68 Ill.2d 326, 12 Ill.Dec. 134, 369 N.E.2d 841 (1977). Although not the state of origin, Illinois was the principal place of business of GTE, and the court assumed that the Illinois act, like UDITPA, rendered all of a multistate enterprise’s business income taxable. 68 Ill.2d at 339, 12 Ill.Dec. 134, 369 N.E.2d at 847. See also analysis of the case by Hellerstein, Construing the Uniform Division of Income for Tax Purposes Act: Reflections on the Illinois Supreme Court's Reading of the “Throwback” Rule, 45 Univ. of Chicago L.Rev. 768 (1978).


text:
    CHEMICAL REALTY CORPORATION, a New York Corporation, Appellant, v. FLAGLER CENTER BUILDING LOAN CORP., a Florida Corporation, Appellee.
    No. 79-1967.
    District Court of Appeal of Florida, Third District.
    Sept. 16, 1980.
    Rehearing Denied Oct. 20,1980.
    Greenberg, Traurig, Hoffman, Lipoff, Quentel & Wolff and David L. Ross and Sue M. Cobb, Miami, for appellant.
    Sibley, Giblin, Levenson & Glaser and Allen J. Smith, Miami, for appellee.
    Before HUBBART, NESBITT and PEARSON, DANIEL, JJ.
   PER CURIAM.

The order under review which dismissed the instant foreclosure action without prejudice on an abatement theory is reversed and the cause is remanded to the trial court with directions to reinstate said action upon a holding that: (a) it is improper for a trial court to dismiss an action on an abatement theory as a dismissal of such an action [either with or without prejudice] does not constitute an abatement thereof, Birnholz v. Steisel, 338 So.2d 862 (Fla. 3d DCA 1976), (b) an abatement of the instant foreclosure action did not lie in this case, in any event, as the prior foreclosure action between the parties had been ordered dismissed upon appeal, Flagler Center Building Loan Corp. v. Chemical Realty Corp., 363 So.2d 344 (Fla. 3d DCA 1978), cert. den. 372 So.2d 467 (Fla.1979), and the post-judgment issues remaining in said action in no way precluded the prosecution of the instant foreclosure action. Horter v. Commercial Bank & Trust Co., 99 Fla. 678, 126 So. 909 (1930).

Reversed and remanded.