author: HERSEY, Judge. LETTS, Chief Judge,

text:
    CITY OF HOLLYWOOD and Civil Service Board of the City of Hollywood, Appellants, v. James WASHINGTON, Appellee.
    No. 78-1871.
    District Court of Appeal of Florida, Fourth District.
    June 18, 1980.
    As Amended July 22,1980.
    Sherman Bennett Mayor, City Atty., James A. Thomas, Deputy City Atty., and Andrew De Graffenreidt, III, Asst. City Atty. Hollywood, for appellants.
    Alan H. Konigsburg of Mavrides, Latimer, Shamres, Konigsburg & Platt, P.A., Fort Lauderdale, for appellee, James Washington.
   HERSEY, Judge.

In July of 1977, appellee, James Washington, received written notification from the Chief of the Hollywood Fire Department that his employment had been terminated. Appellee was given a hearing before the Civil Service Board of the City of Hollywood in September of 1977. A majority of the Civil Service Board confirmed termination of appellee's employment, whereupon appellee petitioned for writ of certiorari to the Circuit Court. A final order was entered reversing the action of the Civil Service Board and requiring the reinstatement of appellee Washington. The City of Hollywood seeks review of this order.

Testimony elicited before the Civil Service Board provides the basis for the factual background upon which this Court must base its decision. The transcript of that proceeding discloses that appellee was a permanent civil service employee of the City of Hollywood Fire Department. Ap-pellee reported late for work on a morning in March of 1977. He then requested reassignment to another station house in order to avoid further contact with individuals who lived in the area of the stationhouse to which he was assigned. He alleged that he and another fireman had been abducted by these individuals, who apparently believed that appellee and the other fireman had some knowledge concerning a substantial drug theft. Appellee’s allegations were brought to the attention of the Chief of the Hollywood Fire Department, who then arranged with the Chief of the Hollywood Police Department to have a police officer assigned to investigate the kidnapping and the possible involvement of drugs. The Fire Chief arranged for an officer of the fire department to drive appellee to the police station to take part in an interview. As a result appellee met with one Sergeant Anthony Alderson in the police station on April 6, 1977. Sergeant Alderson indicated to appellee that he was in the process of investigating the drug aspects of the abduction. He explained appellee’s right to remain silent, whereupon appellee declined to give a “formal statement.” Sergeant Al-derson gives the following explanation of the sequence of events that followed:

After giving his Miranda warning and after him refusing to waive his Miranda warning I then informed him any conversation that transpired between us would not be used in a court of law against him, nor could it be used in a court of law in a criminal proceeding.
I reiterated that the purpose of my questioning him there was to determine whether or not he had actually been a victim of an abduction. There had been mention of narcotics implications I indicated to him, then requested of him if he wished to file a complaint of having been a victim. He indicated he did not. I asked if he would care to discuss it, having already refused to waive the Miranda warning had there been any criminal proceeding. He indicated, at that time, he would talk to me with the understanding it could not be used in a criminal proceeding.
My intention at that time was to garner information regarding the alleged abduction and narcotics involvement, if any.

Appellee then proceeded to furnish certain details concerning the abduction. During the course of this discussion he made incriminating statements to the effect that he had received two grams of cocaine, of which he retained one gram for himself and gave one gram to another fireman and his wife.

Sergeant Alderson testified that he had attempted to make it clear to appellee that the entire interview would eventually be reported to the Fire Chief. He also testified that he told appellee that he was free to leave at any time. In fact, when appel-lee indicated that he wished to terminate the interview and that he did not want to discuss the matter any further until he had an opportunity to talk to the other fireman, the interview concluded. Appellee also indicated that if the other fireman was willing, they would assist the police in further investigations into the drug aspects of the situation.

Subsequently, appellee contacted Sergeant Alderson and made an appointment for another meeting. This meeting took place at the home of the other fireman referred to previously. Present were appel-lee, the other fireman, his wife, and Sergeant Alderson. At that meeting appellee repeated the incriminating statement that he had been in possession of two grams of cocaine, keeping one for himself and giving the other gram to the other fireman and his wife.

Some time later, appellee received a written communication terminating his employment on the basis of violation of Chapter IV, Section II, Rule 4 of the Fire Department Rules and Regulations, providing that:

No member shall conduct himself, on or off duty, in any way that will tend to bring discredit to the Fire Department or any of its members as a group or individuals.

At the hearing before the Civil Service Board, appellee sought to suppress the incriminating statements as violative of his Fifth Amendment rights. The motion to suppress was denied.

On appeal, the circuit court determined that the motion to suppress should have been granted and that, by virtue of the termination of his employment, appellee was denied his constitutionally protected right to due process of law.

Appellee’s legal position on this appeal is that the statements made by him during the interviews may not be used against him as a basis for the termination of his employment by the City of Hollywood because he was interrogated under circumstances giving rise to the protections of the Fifth Amendment. Implicit in this position is the principle that government employment constitutes a property right, loss of which may constitute a penalty or forfeiture. Furthermore, appellee’s position includes inferentially the claim that there was an effective grant of immunity which would act as a bar to the testimony of Sergeant Alderson concerning the incriminating statements.

We first turn our attention to the basic question of appellee’s rights under the Fifth Amendment to the Constitution of the United States, that is, whether statements made by appellee pursuant to a grant of immunity could be used as the basis for termination of his employment in that context. The self-incrimination clause of the Fifth Amendment, applicable in state proceedings through the Fourteenth Amendment, Malloy v. Hogan, 378 U.S. 1, 84 S.Ct. 1489, 12 L.Ed.2d 653 (1964), provides that no person “shall be compelled in any criminal case to be a witness against himself.” The Supreme Court has uniformly held that the right protected here is the right to avoid criminal sanctions. Ullmann v. United States, 350 U.S. 422, 76 S.Ct. 497, 100 L.Ed. 511 (1956). The concept of “criminal” has been slightly broadened under the Federal cases to include juvenile delinquency proceedings which, while not criminal per se, may lead to loss of constitutionally protected freedoms. In re Gault, 387 U.S. 1, 87 S.Ct. 1428, 18 L.Ed.2d 527 (1967). It has also been established that Fifth Amendment rights may not be circumvented by employing the strategem of a civil proceeding, in which the end result is the substantial equivalent of a criminal sanction. Boyd v. United States, 116 U.S. 616, 6 S.Ct. 524, 29 L.Ed. 746 (1886) and Lees v. United States, 150 U.S. 476, 14 S.Ct. 163, 37 L.Ed. 1150 (1893). Garrity v. New Jersey, 385 U.S. 493, 87 S.Ct. 616, 17 L.Ed.2d 562 (1967), and its progeny prohibit the state from obtaining a waiver of immunity by threat of loss of employment. Applying these rules to the issue involved in this case, we hold that appellee has no federally protected right to suppression of the incriminating statements in a proceeding for the termination of his employment. Our holding is more specifically supported by the case of Childs v. McCord, 420 F.Supp. 428 (D.Md. 1976) and the cases reviewed by the Childs court beginning at page 435 of that opinion. The Childs case involved licensed and registered professional engineers charged with professional misconduct. The court held that the engineers’ compelled immunized testimony in federal criminal proceedings could be fully utilized in proceedings before the Maryland Board of Registration for Professional Engineers in spite of the fact that the engineers might thereby be deprived of their right to practice as engineers in Maryland. In the case of In re Daley, 549 F.2d 469 (7th Cir. 1977), cert. denied, 434 U.S. 829, 98 S.Ct. 110, 54 L.Ed.2d 89 (1977), the United States Court of Appeals for the Seventh Circuit held that a federal prosecutor did not have sufficient authority to grant immunity to an attorney in order to prevent his trial testimony from being utilized in state bar disciplinary proceedings. The case is in some respects distinguishable from the case at bar, but the principle enunciated by the court has some application here. We have found no precedent of the United States Supreme Court which would require any other result.

We now turn to a consideration of state law. The Florida privilege against self-incrimination is found in Section 9 of Article 1 of the Constitution. Paraphrased, the provision reads that no person shall be compelled in any criminal matter to be a witness against himself. For the most part, Florida cases fall in line with the federal cases, with the exception of the narrowly defined area involving the question of whether immunized testimony may be used in administrative proceedings which might result in the deprivation of a property right of the witness. We immediately distinguish State ex rel. Vining v. Florida Real Estate Commission, 281 So.2d 487 (Fla.1973), which appellee urges should control the instant case. State ex rel. Vining, involved a statutory requirement that a licensed real estate broker charged with a violation of the real estate license law file a written response, under oath, to the charges. Failure to do so could result in ex parte revocation of the broker’s license. There was no element of immunity involved. The constitutional defect of this statutory requirement seems obvious, as does the complete dissimilarity of the issue involved with that at bar.

The cases that are not so readily distinguished deal with immunity. In Florida State Board of Architecture v. Seymour, 62 So.2d 1 (Fla.1952), the court was confronted with a factual situation requiring an analysis of the applicability of Section 932.29, Florida Statutes (1941). This statute granted immunity under certain circumstances and provided that testimony so immunized afforded protection to the witness to the extent that he could not “be prosecuted, subjected to any penalty or forfeiture for or on account of any transaction, matter, or thing concerning which he may so testify . .” The court in that case held that the statute provided immunity against administrative revocation of a professional license. Other cases dealing with the same or related issues culminated in July of 1969 with the case of Headley v. Baron, 228 So.2d 281 (Fla.1969). The court in Headley overruled Seymour, holding that the term “penalty or forfeiture” contemplated by Section 932.29 referred only to a “criminal” penalty or forfeiture. That case was followed by Lurie v. Florida State Board of Dentistry, 264 So.2d 479 (Fla. 4th DCA 1972). This per curiam denial of certiorari resulted in a writ of certiorari to the Supreme Court which held, in Lurie v. Florida State Board of Dentistry, 288 So.2d 223 (Fla.1973), that the immunity attaching under Section 932.29, Florida Statutes (1967), renumbered Section 914.04, Florida Statutes (1971), prohibits use of immunized testimony in administrative proceedings to revoke a license to practice dentistry. Revocation of such a license was equated with a penalty or forfeiture as contemplated by the statute. The court expressly reinstated the holding in Seymour. Of interest is the following language from the dissenting opinion of the late Justice Drew, concurred in by acting Chief Justice Roberts and Justice Adkins:

It is inconceivable to me, to use only one example, that a law enforcement officer under civil service could be brought before a grand jury or state’s attorney, confess to participation in criminal activities and then effectively bar suspension or removal from office and thereafter wear the badge of authority and remain the symbol of the law — and yet, that is what this decision of the majority will permit. The majority opinion can only further deteriorate public respect for the government and those who govern, which, everybody knows has now reached a historic low. Id. at 233-234.

So far as we have been able to determine there has been only one exception engraft-ed on this rule to date. The Supreme Court has recently eliminated disciplinary proceedings involving attorneys at law from those administrative proceedings to which the immunization statute applies. In Gra-vólo v. The Florida Bar, 361 So.2d 121 (Fla. 1978), the court held that immunity from disciplinary proceedings of attorneys at law could only be granted by order of the Supreme Court. This distinction is grounded upon the power of the Supreme Court with respect to admission and discipline of attorneys and, in turn, upon the separation of powers doctrine.

Until further inroads are made into the administrative immunity doctrine, in light of recent federal cases or until the legislature amends the immunization statute, we are clearly mandated to prohibit the use of immunized testimony in proceedings which could result in the imposition of a penalty or forfeiture depriving the witness of a property right, such as government employment. However, deeming the matter to be of great public importance we hereby certify the following question to the Supreme Court: DOES SECTION 914.04 OF THE FLORIDA STATUTES AND THE SUPREME COURT’S DECISION IN LURIE v. FLORIDA STATE BOARD OF DENTISTRY PROHIBIT THE USE OF IMMUNIZED TESTIMONY TO DISCHARGE A CITY EMPLOYEE?

Having concluded that at least a statutory if not a constitutional right is offended by the use of immunized testimony under the particular circumstances involved in the present case, we turn our attention to the second aspect of appellee’s position. That is, whether there was an effective grant of immunity to appellee, Washington.

Immunity from prosecution is a creature of statute. Tsavaris v. Scruggs, 360 So.2d 745 (Fla.1977). The present statute, Section 914.04, Florida Statutes (1979), provides:

No person, having been duly served with a subpoena or subpoena duces tecum, shall be excused from attending and testifying or producing any book, paper, or other document before any court having felony trial jurisdiction, grand jury, or state attorney, upon investigation, proceeding, or trial for a violation of any of the criminal statutes of this state upon the ground or for the reason that the testimony or evidence, documentary or otherwise, required of him may tend to convict him of a crime or to subject him to a penalty or forfeiture, but no person shall be prosecuted or subjected to any penalty or forfeiture for or on account of any transaction, matter, or thing concerning which he may so testify or produce evidence, documentary or otherwise, and no testimony so given or produced shall be received against him upon any criminal investigation or proceeding.

The statutory language is clear and explicit that immunity results only from compelled testimony before a court having felony trial jurisdiction, a grand jury, or a state attorney. In State v. Powell, 343 So.2d 892 (Fla. 1st DCA 1977), the court held that the immunity granted by Section 914.04 is, by its terms, limited to that specifically stated in the statute. The case law under this and predecessor statutes is equally clear that only those officials specified in the statute are authorized to grant immunity. See Lurie v. Florida State Board of Dentistry, 288 So.2d 223 (Fla.1973) (county solicitor); State v. Papy, 239 So.2d 604 (Fla. 3d DCA 1970) (grand jury); Holland v. State, 345 So.2d 802 (Fla. 4th DCA 1977) (state attorney). Accordingly, a police officer cannot, under the statute, grant immunity.

In the case at bar appellee had not been served with a subpoena, nor was he at any time in custody. In fact, on the second occasion that he made the incriminating statements appellee was at the home of a friend and Sergeant Alderson was present by invitation. It had been made clear to appellee that anything he said would be reported to his superior, the Fire Chief. Implicit in that fact was the possibility that his employment could be terminated on the basis of any actions disclosed by his statements. It is clear that the Miranda warning given here was unnecessary and the limited immunity discussed by the parties was meaningless and superfluous. Appellee was not compelled to make any statement whatsoever. Appellant can hardly ue es-topped by the unauthorized attempt to grant the limited immunity disclosed by this record.

Accordingly, we hold that the constitutional rights of appellee were not encroached upon, that he was afforded due process and that the Florida Immunity Statute had no application to the instant facts.

We quash the order of the Circuit Court and reinstate the findings and order of the Civil Service Board terminating the employment of appellee, Washington.

REVERSED.

ANSTEAD, J., concurs.

LETTS, C. J., concurring specially with opinion.

LETTS, Chief Judge,

concurring specially with opinion.

I am glad the majority has agreed to certify the question of whether the Supreme Court’s interpretation of Section 914.04 in Lurie v. Florida State Board of Dentistry, supra, is still the law of this State. In that four to three decision only one of the majority remains on the Court and I agree with the dissent terming it a “tragic mistake.”

I am also intrigued by the Ciravolo v. The Florida Bar decision, supra. Is it fundamentally fair to say: Dentists can do it but lawyers can’t! Suppose this fireman had confessed to arson!

Somehow, sometime I remain in hopes that someone somewhere will consider the plight of the innocent taxpayer and at least remove such as James Washington from the public payroll.

      . A dentist forfeits his license under the statute but a fireman has none to “forfeit.'


source: Caselaw Access Project

author: OTT, Judge.

license: Public Domain

text:
    Howard M. HARNUM, Appellant, v. STATE of Florida, Appellee.
    No. 79-1384.
    District Court of Appeal of Florida, Second District.
    June 18, 1980.

      Robert B. Bennett, Jr., Sarasota, for appellant.
    Robert L. Shevin, Atty. Gen., Tallahassee, and James Whisenand, Deputy Atty. Gen., Tallahassee, and William I. Munsey, Jr., Asst. Atty. Gen., Tampa, for appellee.
    Talbot D’Alemberte and Donald M. Mid-dlebrooks of Steel, Hector & Davis, Miami, for amicus curiae Post-Newsweek Stations, Florida, Inc.
   OTT, Judge.

On December 27,1977 appellant was convicted of a violation of Section 839.25, Florida Statutes (1975), which purports to proscribe “Official Misconduct.” The basis of the charge was that appellant, as chief of police of North Port, Florida, caused the records of the 1975 arrest of a DUI suspect to be altered to show a breathalyzer reading of .13 instead of the .30 actually recorded at the time of the arrest.

Appellant's defense, in essence, was that his codefendant, Sgt. Reinert (who was tried separately, convicted and had died before appellant’s trial), came to him two days after the arrest and stated that he had made a mistake in recording the reading of a malfunctioning breathalyzer. He asked appellant how the matter should be handled. Appellant allegedly instructed Rei-nert to correct his mistake, and gave the same instructions to Lorenz (the arresting officer) and Ms. Kerns (the dispatcher), in order to avoid exposing the city to a false arrest charge. On the basis of the altered breathalyzer reading the DUI charge was reduced to reckless driving.

However, arresting Officer Lorenz (originally also a codefendant) was granted immunity and testified that the breathalyzer test result at the time of the arrest actually was .30, that he had been ordered by appellant to change his report to show only a .13 reading so that the DUI suspect “would not lose his license”, and that the business about a “mistake” by Sgt. Reinert was made up by appellant at a later date.

There was considerable publicity about the case in Sarasota, consisting of newspaper stories, editorials (calling for appellant’s dismissal as chief of police), TV commentaries, etc. Appellant’s motion for a change of venue on the grounds of inability to get a fair trial was denied. No difficulty was experienced in getting a panel or jury, and appellant did not use all of his peremptory challenges. There is no evidence anywhere in the record that any member of the jury was influenced by the pretrial publicity, or in any way biased against appellant. Under those circumstances, appellant’s attack on the trial court’s refusal to order a change of venue must fail. Jackson v. State, 359 So.2d 1190 (Fla.1978).

Equally unavailing are appellant’s attacks on the sufficiency of the evidence and certain testimony by Lorenz on redirect examination. As to the first point, appellant’s argument is predicated on the absence of any direct controversion of Rei-nert’s testimony that two days after the arrest in question he informed appellant of his “mistake” and that what followed was merely a “correction of the records.” In other words, appellant asserts that irrespective of whether Reinert did or didn’t make a mistake, there is no evidence that appellant was aware of anything except that a mistake had in fact been made, and thus there is no evidence that he knowingly caused the records to be “falsified” as prohibited by the statute. Appellant ignores, however, the damaging inferences arising from Lorenz’ testimony that (1) when appellant told him to change his report, no mention was made of any mistake, but only the DUI suspect’s potential loss of driving privileges unless the breathalyzer reading was reduced, (2) that the “mistake” story was manufactured by appellant at a later date, and (3) when Lorenz’ deposition was to be taken by the state attorney, appellant called him in and “suggested” in a coercive manner that he stick to the “mistake” version. That evidence, though circumstantial, was sufficient to support a finding that appellant knew that no mistake had actually been made and that he was in fact ordering a “falsification” of the records.

(3,4] As for the claimed error in permitting Lorenz to give certain testimony on redirect examination, the trial court ruled at the time that defense counsel had “opened the door” by asking certain questions on cross-examination. The records supports the trial court’s view of the situation, but even if it did not, and even if the ruling was erroneous, we think the error would be harmless. The order of proof in a trial is largely left to the discretion of the trial court. If Lorenz had been excused from the witness stand without establishing some point the prosecutor deemed vital to his case, the simple expedient of recalling Lorenz to the stand would have cured the oversight. Surely appellant would not deny the power of the court to permit the recall of the witness, even if it had required reopening the case — particularly where prejudice is so indiscernible. Dees v. State, 357 So.2d 491 (Fla. 1st DCA 1978).

Appellant’s main arguments on appeal were constitutional, and both points have now been settled by our supreme court. Appellant complained of error in permitting television cameras and reporters into the courtroom, but the supreme court has ruled that such practice is permissible in the absence of a showing that prejudice has resulted (and appellant has demonstrated none here). In re Post-Newsweek Stations, Florida, Inc., 370 So.2d 764 (Fla.1979). Appellant’s attack on the constitutionality of the statute under which he was prosecuted (§ 839.25(l)(b), Fla.Stat.) was recently adjudicated adversely to his position in State v. Riley, 381 So.2d 1359 (Fla.1980).

Appellant also claims error in sentencing. He was charged with and convicted of two offenses (official misconduct and tampering with physical evidence) arising out of the same acts. He was given a single, general sentence of three years, without apportionment between the offenses. The state at least tacitly concedes this to be error, recognizing the rationale and authority of such cases as Darden v. State, 306 So.2d 581 (Fla.2d DCA 1975). The traditional remedy for such error is to remand the case for proper sentencing. Maxwell v. State, 336 So.2d 658 (Fla.2d DCA 1976).

Accordingly, we affirm the convictions but vacate the sentence and remand the case to the circuit court with instructions to resentence appellant, with apportionment of such sentence between the two crimes of which he stands convicted.

GRIMES, C. J., and HOBSON, J., concur.


author:
SHARP, Judge.
      ORFINGER, Judge,

text:
    FLAGSHIP BANK OF ORLANDO, formerly known as Orlando Bank & Trust Company, Appellant, v. Jackson BRYAN et al., Appellees.
    No. 79-1580/T4-664.
    District Court of Appeal of Florida, Fifth District.
    June 18, 1980.
    Bruce Bogin, of Bogin, Munns & Munns, Orlando, for appellant.
    Jackson Bryan, Palatka, for appellees.
   SHARP, Judge.

The Flagship Bank of Orlando appeals from a final judgment entered after a jury trial, in favor of Jackson Bryan, Yvonne Bryan, Everette S. Roane and Nova Roane. The bank urges that the verdict was contrary to the evidence, and that the trial court should have granted its motion for new trial. We agree and accordingly remand for a new trial.

The trial concerned only the issue of damages. The liability of the appellees as guarantors of a loan had been previously determined in an earlier proceeding. Flagship loaned $500,000.00 to Syntax Corpo. ition, secured by a real estate mortgage on five condominium units and a recreation facility at Hill House Bath & Tennis Club in Mount Dora, Florida. The bank foreclosed the mortgage and purchased the assets on December 9, 1977. Thereafter the bank sued the appellees on their guaranties, seeking to recover a deficiency. The jury was unable to reach a verdict, but the trial court directed a verdict on the issue of liability and reset the matter for trial on the question of damages.

At this trial the judge instructed the jury that the defendant-appellees were liable on their guaranty agreements to the bank and that they should determine the amount of damages the bank was entitled to recover.

Your assessment of the amount of damages for plaintiff will be determined by the amount of credit to which the defendants are entitled for the fair market value of the property recovered by the plaintiff in December 1977 as shown by the evidence which has been presented to you. The fair market value of the property may be deemed to be that sum which, considering all of the circumstances would be arrived at [by] fair negotiations between an owner willing to sell and a purchaser willing to buy, neither being under any pressure.

These instructions were not objected to by any party, and they are a correct statement of the applicable law.

The only evidence presented relating to the market value of the collateral in December of 1977 was the testimony and written appraisals of two “expert” witnesses. 'Robert K. Bell, Jr. appraised the property for the bank at $477,000.00. The defendants’ appraiser, J. Fred Kurras, testified that the fair market value was $544,000.00. The only other testimony remotely relating to value was given by the president of the Syntax Corporation, who stated he acquired the land in 1969 for $100,000.00, and the general contractor for the club-house facility, who testified the cost of construction in 1972-73 was between $350,000.00 to $375,-000.00. Counsel for the bank objected to both statements on the grounds of relevancy, but was overruled by the trial court.

The bank established that it was owed $625,709.54 by the Syntax Corporation based on the foreclosure debt and judgment, and that it had not recovered any funds on the debt from the debtor or any other guarantor. The bank officer admitted on cross-examination that Flagship had obtained a deficiency judgment against Syntax for $148,709.54 and a judgment for $127,114.55 against two other guarantors.

Based on this record, the jury’s verdict “for the defendants” cannot be sustained. Since the trial court instructed the jury that liability was clear, and their sole function was to assess damages we assume for purposes of this appeal that the verdict was equivalent to a “zero” damage award. After a careful reading of the record in this case, we conclude that the jury had no reasonable basis to determine there was no deficiency between the fair market value of the collateral on December 1977, and the judgment debt owed and unpaid to the bank. Griffis v. Hill, 230 So.2d 143 (Fla. 1969); Parris v. Gavagan, 271 So.2d 816 (Fla.2d DCA 1972). Because the jury ignored the evidence or misconceived the merits of the case, we reverse and remand for a new trial on the issue of damages.

REVERSED and REMANDED.

DAUKSCH, C. J. concurs.

ORFINGER, J., dissents with opinion.

ORFINGER, Judge,

dissenting.

While I agree that the verdict “for the defendants” was defective in form, the jury’s intention to return a zero verdict is not in doubt. The trial judge apparently was of the opinion that the evidence of value would sustain a zero verdict on damages, because he also instructed the jury, without objection:

“I now instruct you that your assessment of damages for plaintiff can range from nothing to $140,787.87.”

The evidence of value of the property is not at all clear. Appellant did not object to the foregoing jury instruction, and I think it has no standing to now complain because the jury did just what it was told it could do.

I respectfully dissent, and would affirm.

      . Vega v. Cosmopolitan Mutual Ins. Co., 336 So.2d 660 (Fla.3d DCA 1976).

      . The Bank is entitled to recover its full mortgage debt, including principal, costs and lawful interest. American Securities Co. v. Goldsberry, 69 Fla. 104, 67 So. 862 (1915); Heimer v. Albion Realty & Mortgage, Inc., 300 So.2d 31 (Fla.3d DCA 1974). The deficiency or liability of the guarantors should not be measured solely by the principal sum loaned by the Bank.

      . Since the appellees unconditionally guaranteed payment of the debt to the bank, clearly the bank could obtain a judgment for the deficiency against each of the guarantors and the debtor. However, the indebtedness can be collected only once, and any payment on any of the judgments must be credited to the others. Fegley v. Jennings, 44 Fla. 203, 32 So. 873 (1902); Anderson v. Trade Winds Enterprises Corp., 241 So.2d 174 (Fla.4th DCA 1970); Luckey v. Thornton, 171 So.2d 410 (Fla.3d DCA 1965).

        .Lassitter v. Intern. Union of Op. Engin., 349 So.2d 622 (Fla. 1976).


author: SCHEB, Judge.

text:
    RUG MART, INC., Appellant, v. Frank S. PELLICCI and Betty Pellicci, his wife, Appellees.
    No. 79-2194.
    District Court of Appeal of Florida, Second District.
    June 20, 1980.
    Ezra J. Regen and Geo. W. Thomas, Jr., Sarasota, for appellant.
    John J. Dulmer, Jr., of McGill, Dulmer & Tracy, Venice, for appellees.
   SCHEB, Judge.

Appellant installed carpeting in the ap-pellees’ new home, retaining a security interest and a contractual entitlement to pursue the remedies of a secured party under the Florida Uniform Commercial Code. The trial court held that this entitlement barred appellant from foreclosing a claim of lien against the appellees’ homeplace under the mechanics’ lien law. We disagree and reverse.

In March 1978 Rug Mart, Inc., installed carpeting in the Pelliccis’ new home pursuant to a written contract. The contract contained a provision whereby Rug Mart retained a security interest in the goods until the Pelliccis paid the total purchase price. It further provided that in the event the Pelliccis breached the contract, Rug Mart was entitled to the remedies of a secured party under Chapter 679, Florida Statutes (1979).

When the Pelliccis failed to complete their payments, Rug Mart filed a claim of lien for the unpaid balance plus interest, and timely sued to foreclose its claim of lien under Chapter 713, Florida Statutes (1979). The Pelliccis moved to dismiss, contending that by the contractual provision they and Rug Mart implicitly agreed to treat the carpeting as personalty. Thus, they argued, the provision limited Rug Mart to the remedies of a secured party under the Uniform Commercial Code. The trial court granted the Pelliccis’ motion and dismissed Rug Mart’s complaint with prejudice. This appeal ensued.

We do not think the contract provision established Rug Mart’s sole remedy for breach or that the carpeting was personalty. Rather, it merely entitled Rug Mart to pursue remedies available to a secured party under the Uniform Commercial Code. Presumably, Rug Mart may have chosen to do so if the carpeting had not yet been installed when the Pelliccis breached the contract. By suing to foreclose its claim of lien, Rug Mart elected to treat the installed carpeting as realty and abandoned its right to treat the property as personalty and to pursue contractual remedies under the written agreement. See North Dade Plumbing, Inc. v. LaSalle Building Corp., 114 So.2d 707 (Fla. 3d DCA 1959). We hold that if Rug Mart can prove the allegations of its complaint, it is entitled to the remedy of foreclosure under Chapter 713, Florida Statutes (1979).

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

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

      . The contract provided:
      CONDITIONS: It is agreed that a purchase money security interest is retained by the seller in the above described goods to secure such purchase price until the total amount above specified shall have been paid and that the goods covered in this contract shall not be removed from address where originally installed, without written consent of seller. Any violation of the above contract or failure to make payments as agreed shall entitle the seller to all remedies of a secured party under the Florida Uniform Commercial Code.

      . Although not applicable in the present case, Section 713.01(7), Florida Statutes (1979), as amended by Chapter 77-353, Section 1, Laws of Florida (effective July 1, 1978), provides that furnishing carpeting or rugs to be permanently installed constitutes an improvement tc realty.

      . Presumably, by retaining a security interest, Rug Mart would have had this right irrespective of the provision.


author: McCORD, Judge.

text:
    Darlene HOWARD, Appellant, v. CRAWFORD AND COMPANY, Appellee.
    No. 00-296.
    District Court of Appeal of Florida, First District.
    June 24, 1980.

      Stephen A. Smith of Smith & Smith, Lake City, for appellant.
    Charles Vocelle and Frederick L. Kober-lein of Brannon, Brown, Norris, Vocelle & Haley, Lake City, for appellee.
   McCORD, Judge.

This appeal is from a judgment on the pleadings entered in favor of appellee in a suit brought by appellant for damages allegedly sustained as a result of appellee’s fraud. We reverse.

According to the allegations of appellant’s complaint, she was grievously injured in an automobile accident in which the tort-feasor was insured by Southeastern Fidelity and Casualty Insurance Company (Southeastern). Appellee Crawford and Company was the claims adjuster for Southeastern and in settlement negotiations appellee falsely represented to appellant that the Southeastern liability policy limits were $10,000 when, in fact, the policy limits were $15,000. The complaint further alleges that appellee intentionally misrepresented the policy amount with the purpose of deceiving and defrauding appellant; that relying upon appellee’s misrepresentations, appellant and her parents (she was a minor at the time of the accident) were induced to settle the claim for less than the actual policy amount; that appellant and her parents were required to retain the services of an attorney, thereby incurring legal expenses in order to protect appellant’s interest and to set aside the settlement agreement and releases and to thereby collect the balance of the policy limits. Appellee’s motion for judgment on the pleadings asserted that appellant’s amended complaint shows that appellant has not been damaged by any conduct of appellee even should the court find fraud because appellant has recovered the entire policy limits; that attorneys fees and costs are not a recoverable item of damages.

Appellant correctly contends that by moving for judgment on the pleadings, appellee admits for the purpose of the motion that it intentionally deceived appellant and her parents in order to cheat her out of $5,000. Appellee’s contention that since appellant was eventually successful in recovering the balance of the policy limits she has not been damaged because attorneys fees and costs are not a recoverable item of damages misses the mark. While appellee is correct that attorneys fees for prosecuting or defending an action are not recoverable in that action in the absence of a statute or contract which makes them recoverable, this rule of law is not applicable in a suit for fraud and deceit where the damages resulting from the fraud and deceit were attorneys fees necessarily paid to correct the result of the fraud and deceit. 37 Am. Jur.2d, Fraud and Deceit, § 344, sets forth the law on this subject as follows:

. in accordance with the general rule, where the fraudulent act of a defendant has involved the plaintiff in litigation with others or placed him in such relation with others as makes it necessary to incur expense to protect his interest, the attorneys’ fees and other legal expenses incurred thereby may ordinarily be recovered in damages, provided, of course, that such fees and expenses are the natural and necessary consequences of the defendant's fraudulent act.

Appellee contends that since it was acting as the agent of Southeastern in settling the claim, appellant could not split the cause of action she brought against Southeastern to correct the result of the alleged fraud and deceit of Southeastern’s agent, appellee; that appellant’s attorneys fees in prosecuting that action against Southeastern would not have been recoverable in that action and, therefore, they are not recoverable here in a separate action against appel-lee. We do not agree with this reasoning. Here the alleged fraud was practiced upon appellant by appellee. If the allegations of the complaint are true, appellant has a cause of action against appellee for fraud and deceit to recover her damages which were the direct result of that fraud and deceit. The damages were the attorneys fees and costs incurred in the suit against Southeastern to correct the result. Appel-lee must answer for its alleged fraud, even though it was acting at the time as an agent of Southeastern. To rule otherwise would amount to a condonation of appel-lee’s alleged act.

REVERSED.

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


author: BASKIN, Judge.

text:
    The STATE of Florida, Appellant, v. Benjamin Frank KIRKLAND, Appellee.
    No. 79-1762.
    District Court of Appeal of Florida, Third District.
    June 24, 1980.

      Janet Reno, State’s Atty. and Ira N. Loewy, Asst. State’s Atty., for appellant.
    Bennett H. Brummer, Public Defender and Howard K. Blumberg, Asst. Public Defender, for appellee.
    Before HENDRY and BASKIN, JJ., and PEARSON, TILLMAN (Ret.), Associate Judge.
   BASKIN, Judge.

The state presents the following question:

Whether the trial court erred in dismissing the first degree murder indictment against the defendant on the ground that double jeopardy barred the state from prosecuting the defendant on this charge after he had already pled nolo contendere to a juvenile petition for delinquency based upon the lesser included offense of strong-armed robbery, where at the time defendant entered this plea, the offense of murder was not completed due to the fact that the victim had not yet died?

We answer the question in the negative and affirm. We find the Order of Dismissal entered by the trial court correctly represents the views of this court. We, therefore, adopt that opinion as recited below.

On May 11, 1979, PIERCE ROSEN-THAL, an 88-year old man, was the victim of a strong-armed robbery. During the course of the said robbery, Mr. Rosen-thal suffered a heart attack and was placed in a hospital. On July 16, 1979, Mr. Rosenthal died, allegedly as a result of the heart attack that he suffered during the strong-armed robbery.
On May 25, 1979, BENJAMIN KIRKLAND, a 16-year old male, was arrested and charged with having committed the offense of strong-armed robbery in connection with the above events.
On May 31, 1979, the State Attorney’s Office filed both a Petition for Delinquency charging strong-armed robbery and a Motion for an Order waiving jurisdiction (from Juvenile Court to the Criminal Division of the Circuit Court where adults are tried). On July 5, 1979, the State elected to proceed on the Petition for Delinquency charging strong-armed robbery after withdrawing the Motion to Waive Jurisdiction. This action was taken by the State Attorney’s Office even though they believed, or had serious reason to believe, that Mr. Rosenthal might never recover or recuperate. The fact that the State believed or should have believed that Mr. Rosenthal might never recover is amplified by the portion of the court records which indicate that the State sought and received a delay in the proceedings in Juvenile Court because of Mr. Rosenthal’s physical condition. These facts, coupled with the nature of the offense and Mr. Rosenthal’s age and physical condition, certainly indicated a great likelihood that Mr. Rosenthal would not recover.
The Defendant then entered a plea of Nolo Contendere to the Petition for Delinquency that charged strong-armed robbery. Sentencing was then set for July 19, 1979.
On July 19, 1979, BENJAMIN KIRKLAND was committed to the Department of Health and Rehabilitative Services with an admonishment by the Court that he be confined in State School.
On August 1, 1979, the State Attorney’s Office presented the matter to the Dade County Grand Jury which resulted in the rendition of an Indictment charging BENJAMIN KIRKLAND with first degree murder relating to the death of PIERCE ROSENTHAL.
The record indicates and the State stipulates with Defense counsel that the only basis for the charge of first degree murder is on the theory of the Felony-Murder Doctrine.
“The Double Jeopardy Clause protects against a second prosecution for the same offense after a conviction. And it protects against multiple convictions for the same offense.” North Carolina v. Pearce, 395 U.S. 711, 717 [89 S.Ct. 2072, 2076, 23 L.Ed.2d 656] (1969).
In Brown v. Ohio [432 U.S. 161], 97 S.CL 2221 [53 L.Ed.2d 187] (1977), the U.S. Supreme Court discussed this area of the law by referring to
“. . . the rule that two offenses are the same unless each requires proof that the other does not.”
The Supreme Court went on in the Brown v. Ohio decision to state:
“. . . and as another application of the same rule (this) court cited, [In re Nielsen] 131 U.S. [176], at 190, 9 S.Ct. 672 [at 676, 33 L.Ed. 118], with approval the decision of State v. Cooper, 13 N.J.L. 361 (1833) where the N.J. Supreme Court held that a conviction for arson barred a subsequent Felony-Murder Indictment based on the death of a man killed in the fire . . . Whatever the sequence may be, the Fifth Amendment forbids successive prosecution and cumulative punishment for a greater and lesser included offense.”
The clear holding reflected in Brown v. Ohio, as well as within the numerous cases cited in the Brown v. Ohio opinion, clearly demonstrate that two offenses must each require the proof of one or more elements or facts that the other does not require. Therefore, although it is quite correct, as argued by the State, that the crime of first degree murder contains one fact that is in addition to the elements of robbery (specifically, in proving the first degree murder charge the State would be required to prove the fact and cause of the death of Mr. Rosenthal in addition to proving the elements of the strong-armed robbery), it is equally clear that the robbery does not require the proof of any fact or element that would not also be required to be proved in the first degree murder case.
Since BENJAMIN KIRKLAND has already been “convicted” and punished for the underlying felony of strong-armed robbery, he cannot be prosecuted again for that same robbery. Furthermore, he cannot be convicted and/or punished for the Felony-Murder, since that would amount to prosecuting him again for the underlying felony of strong-armed robbery.
The most recent appellate decision rendered on this point by a court in Florida was issued by the Supreme Court of the State of Florida on July 5, 1979. In that case, State v. Pinder, [375 So.2d 836 (Fla. 1979)], the Court specifically stated that where
“. . murder is charged, but the only evidence to sustain the murder conviction is furnished by proof that the killing occurred as the result of one of the felonies enumerated in Section 782.04(1), we hold that the defendant may not be convicted and punished for both the Felony-Murder [sic] and the underlying felony.”
Why the State withdrew its motion to waive jurisdiction, or otherwise failed to further delay or continue the proceedings until PIERCE ROSENTHAL’S condition and physical future could be either known or reasonably predicted, is speculation that this court cannot and will not indulge in. What is certain and known, however, is that the State made a decision as to what charge they desired to go forward on and in which forum they wished to proceed. The State is now legally obligated to abide by the consequences of that decision, regardless of whether that decision, in retrospect, appears to have been correct or incorrect. The State Attorney’s Office had several choices as to courses of action that they could have followed. This Court has no choice except to follow and apply the clear and decisive decisions of the Supreme Court of the United States and the Supreme Court of the State of Florida which have consistently ruled that prose-cutorial actions, as are being attempted by the State Attorney’s Office in this case regarding BENJAMIN KIRKLAND, are clearly in violation of Constitutional protections that have been in existence for approximately 200 years. This is not a new and novel legal interpretation. Although the Pinder case, supra, is a recent decision, the other Court decisions, standing for the same principal [sic] of law, rendered by the Supreme Court of the United States and the Supreme Court of the State of Florida, have been in existence for decades, with new decisions being rendered every year consistently standing for this same principal [sic] of law.
When the State Attorney’s Office made its decision to withdraw the Motion to Waive Jurisdiction, and, therefore, to proceed only on the robbery charge, they knew, or should have known, that the law of the State of Florida and of the United States of America would completely, totally, and permanently prohibit them from ever prosecuting BENJAMIN KIRKLAND for murder in connection with the death of PIERCE ROSENTHAL on the theory that such a death may have resulted from a heart attack caused by the said robbery. All of the case decisions referred to herein are merely amplifications and interpretations of the long standing principles of law as provided in the United States Constitution, Florida Constitution, and Rule 3.190(c)(2) of the Florida Rules of Criminal Procedure.
It is, therefore, CONSIDERED, ORDERED AND ADJUDGED that Count One of the Indictment filed herein, solely as it relates to BENJAMIN FRANK KIRKLAND, is dismissed, and the said BENJAMIN FRANK KIRKLAND is discharged in this cause.
DONE AND ORDERED at Miami, Dade County, Florida, this 29th day of August, 1979.
/s/ David L. Lew
DAVID L. LEVY
CIRCUIT JUDGE
The decision of the trial court is affirmed.


author: NESBITT, Judge.

text:
    W. E. CAMPBELL and Doris L. Campbell, Appellants, v. Victor SALMAN, Appellee.
    No. 79-2262.
    District Court of Appeal of Florida, Third District.
    June 24, 1980.

      Hendricks & Hendricks and Ben Hendricks, Coral Gables, for appellants.
    No appearance for appellee.
    Before HENDRY, NESBITT and BAS-KIN, JJ.
   NESBITT, Judge.

The appellants (sellers) seek reversal of an adverse summary judgment entered in favor of the appellee (buyer) following buyer’s failure to consummate the purchase of a home under a land sale contract.

The contract in question required the buyer to place a $1,000 deposit in escrow with the sellers’ attorney and, upon acceptance of the offer by the sellers, the buyer was to deposit an additional $14,000 as the remainder of the earnest money deposit to a trust account of a real estate broker. The buyer tendered the $1,000 as a partial deposit along with an offer which the sellers accepted. This deposit was placed in escrow with the buyer’s attorney where it remained intact. Instead of tendering the remainder of the $14,000 earnest money binder, the buyer reneged through a letter sent by his attorney to the sellers’ attorney.

DEPOSIT: Checks issued for the deposit on this contract, will be promptly deposited in a bank for clearance and the holder of the deposit will not be responsible for non-payment of checks. Deposit funds shall be held in escrow or trust accounts until the sale is closed. If the seller does not execute the contract, the deposit will be returned to the buyer. If the contract is executed by both the buyer and the seller and the sale is not closed because of the fault of the buyer, the deposit paid hereunder may be retained by the seller as liquidated damages, the seller paying one half thereof not to exceed the full amount of the brokerage fee, and this contract shall be terminated, or seller may at his option, enforce this contract by legal proceedings, in which event, the buyer agrees to pay all costs, including reasonable attorney’s fees. If, after proper execution by both parties, the sale is not closed because of t^e fault or refusal of the seller, the buyer may enforce this contract by legal action, in which event, seller agrees to pay all costs, including reasonable attorney’s fees or the buyer may elect to accept return of his deposit. If the sale is not closed due to default or failure on the part of the seller, the seller shall be obligated to pay the full real estate brokerage fee to the Broker. In the event it shall be necessary for the Broker/Brokers to enforce collection of the payment of the real estate brokerage fee, the seller shall be obligated to pay reasonable attorney’s fees and court costs to the Broker/Brokers.

Pleading in the alternative, the sellers then commenced an action whereby they sought, in Count I of the complaint, to recover the entire $15,000 earnest money binder or, as indicated in count II, money damages for breach of contract in an amount equal to the difference between the agreed purchase price and the actual value of the property at the time of the breach. Redmond v. Prosper, Inc., 364 So.2d 812 (Fla.3d DCA 1978). The buyer responded by filing an answer containing a general denial of all allegations in the complaint and, as to Count I, interposed the affirmative defenses of: (a) satisfaction; (b) compromise and settlement; and (c) laches, the buyer asserted, as to Count II of the complaint, the affirmative defense that the sellers had elected their remedy under the land sale contract. Cross-motions for summary judgment were then filed by both parties and, at pretrial conference, the trial court entered summary final judgment in favor of the buyer from which the sellers appeal.

The trial court construed the pertinent part of the contract to relegate the sellers to retention of only the $1,000 partial earnest money binder actually deposited. The trial court further ruled that the sellers had elected their remedy by seeking the earnest money binder and were therefore precluded from recovering money damages pursuant to Count II of their complaint.

The sellers correctly contend that a reading of the entire contract and a reasonable construction thereof evinces an intention of the parties that the buyer was required to deposit the sum of $15,000. See 11 Fla.Jur.2d Contracts § 121. We have no quarrel with that principle but in view of our holding, in Brown v. Fine, 102 So.2d 830 (Fla.3d DCA 1958), that the seller may not recover earnest money not actually deposited, we find that the trial court properly entered summary judgment against the sellers with respect to Count I of the complaint.

With respect to Count II of the sellers’ complaint, we conclude that the trial court erred in entering summary final judgment against the sellers. Paragraph six of the contract in question plainly confers upon the sellers the option to sue the buyer for money damages. Moreover, Florida Rule of Civil Procedure 1.110(g) permits a party to state alternative and inconsistent claims or defenses. Cordell v. World Insurance Company, 358 So.2d 223 (Fla. 1st DCA 1978). By asserting Count II of the complaint, the sellers simply opted for the alternative remedy of money damages authorized by the substantive law. Miller v. Rolfe, 97 So.2d 132 (Fla. 1st DCA 1957).

In this posture, the only question before the trial court, as here, is whether there were any disputed questions of fact concerning breach of the contract by the buyer or election of inconsistent remedies by the sellers. As to this issue, the buyer’s original attorney in the transaction filed an affidavit, based on “information and belief,” that a settlement had been effected. That affidavit was tendered in connection with the affirmative defense of compromise and settlement with respect to Count I of the complaint. Since the affidavit was based on information and belief rather than personal knowledge, it was not admissible into evidence and should not have been considered by the trial court. Fla.R.Civ.P. 1.510(e); § 90.604, Fla.Stats. (1979); First Mortgage Investors v. Boulevard National Bank of Miami, 327 So.2d 830 (Fla.3d DCA 1976); Silber v. Campus Sweater & Sportswear, 313 So.2d 409 (Fla. 1st DCA 1975). Moreover, the same attorney had initially admitted the buyer’s breach of contract, and although in his affidavit based on information and belief he stated settlement had been effected, he later, by way of deposition, stated there had never been a settlement. The sellers’ attorney, however, filed an affidavit, based upon personal knowledge, indicating performance by the sellers of all conditions precedent to performance of the contract. This affidavit included a statement that the partial deposit of $1,000 remained in his escrow account, undis-bursed. Therefore, there had been no forfeiture or election to exclusively seek the monies deposited as the sellers’ remedy. Consequently, the sellers had conclusively demonstrated that there was no genuine issue as to any material fact with respect to breach or election of remedies and that the sellers were entitled to partial summary judgment as a matter of law against the buyer.

For the foregoing reasons, the summary final judgment entered with respect to Count I of the complaint is affirmed. With respect to Count II of the complaint as to the issue of liability, summary final judgment in favor of the appellee is reversed with directions to the trial court to enter a partial summary final judgment in favor of the appellants and to entertain further proceedings on the issue of damages.

Affirmed in part; reversed in part and remanded.

      . Paragraph six of the contract reads as follows:

      . Since parties to the contract have the power to provide for remedies, Vol. 5 A Corbin on Contracts § 1227, an alert scrivener may properly draft an instrument that avoids the rule in Brown v. Fine, supra. An inevitable problem that will arise in enforcing such an agreement is whether the parties intended the deposit as “liquidated damages” or a “penalty.” S°e Vol. 17 Fla.Jur.2d Damages §§ 99-105. In this case, we agree with the trial court that the contract in question is not altogether free of ambiguity on the point.

      . See note 1.


author: LARRY G. SMITH, Judge.

text:
    Herbert George GARDNER, Petitioner, v. The Honorable John A. PEACH, Judge of the Circuit Court, Third Judicial Circuit, in and for Suwannee County, Florida, Respondent.
    No. UU-421.
    District Court of Appeal of Florida, First District.
    June 25, 1980.
    Robert Stuart Willis, Jacksonville, for petitioner.
    Jim Smith, Atty. Gen., and Wallace E. Allbritton, Asst. Atty. Gen., for respondent.
   LARRY G. SMITH, Judge.

Gardner has filed a petition for writ of prohibition seeking discharge because of the state’s alleged failure to comply with Rule 3.191(a)(1), Florida Rules of Criminal Procedure. He alleges that he was taken into state custody on July 10,1979, as a result of criminal conduct occurring on that date, and that the state’s failure to bring him to trial on criminal charges arising out of the conduct of July 10, 1979, within 180 days violated his right to speedy trial. The trial court, relying on State v. Andrews, 376 So.2d 9 (Fla.1979), denied Gardner’s motion for discharge on the grounds that the circumstances which occurred on July 10,1979 constituted a “federal arrest” and therefore the Florida speedy trial time period was not triggered on that date. We agree with the trial court and deny the petition.

Petitioner’s argument that he was arrested by state authorities on July 10, 1979, is based on the involvement of Sheriff Robert Leonard in the events of that day. In his deposition, Sheriff Leonard testified that several days prior to July 10,1979, an informant contacted him and attempted to interest him in the alleged illegal activities of petitioner. The Sheriff took no active interest in the matter. However, he subsequently learned that the same informant had contacted agents of the Alcohol, Tobacco and Firearm Bureau, and an agent from the Bureau had met with the informant. The federal agent, using the Sheriffs Department undercover truck, made a buy of firearms from petitioner using the undercover truck. The agents wanted to make a second buy from petitioner, and they discussed a plan for a “buy and bust” with Sheriff Leonard. It was agreed that two federal agents would meet with petitioner for the purpose of consummating a sale of weapons, and when the agents got ready to arrest petitioner, one agent would give a prearranged signal for another federal agent and Sheriff Leonard to move in. The original plan was for the buy to be made in the open; however, it began raining, and the transaction had to take place in a bus. Because there was no alternative plan in case of bad weather, Sheriff Leonard and the other federal agent began moving toward the bus, even though there had been no signal. As they approached the bus, they heard loud voices and then gunshots. Several of the agents and petitioner were wounded in the ensuing gun battle. The Sheriff testified that he entered the bus, and while one of the federal agents stood over Gardner with his pistol pointed at him, he took a derringer from petitioner’s pocket. The Sheriff handcuffed Gardner, but the handcuffs were not his. The Sheriff testified that he never advised Gardner of his rights nor did he place him under arrest. After one of the federal agents and Gardner were taken to the hospital, the Sheriff testified that he secured the area until the ATP agents got there and did their work. He collected various weapons at the scene which he then turned over to ATF. The next day, the Sheriff fingerprinted Gardner at the hospital: “On account of he had a bad hand and they didn’t have the equipment. They had never fingerprinted a dead man before. They didn’t know about the spoon deal, rolling his prints off without hurting his hand.” When asked whether he had done an absentee booking, the Sheriff answered: “That was turned over to — the Federal agents arrested him and then they made the arrangements to ship him down to the State Prison. But that was theirs. I didn’t.” Leonard stated that after that, he did not take any active part in the investigation. The only thing he did was obtain a warrant and place a detainer against Gardner while he was at the state hospital.

Based on these facts, the trial court correctly determined that this case falls within the rule of State v. Andrews, supra, that a federal arrest on federal charges cannot act to commence the Florida speedy trial time period. Bannister v. State, 382 So,2d 77 (Fla. 5th DCA 1980). We cannot agree, as petitioner contends, that the underlying basis of the Andrews decision is the prospect of a state prosecution being frustrated because the state authorities were not on notice of the federal arrest. Consequently, the operative fact in this case is state custody, or lack of it, rather than the state’s knowledge of petitioner’s conduct and of facts and circumstances which would support a state prosecution as urged by petitioner. The trial judge’s ruling on this point is a factual determination which we are not at liberty to second guess or set aside where there is an evidentiary basis in the record to support it. It is clear from the Sheriff’s deposition that he had no custody of or authority over Gardner on July 10, and that he merely assisted the federal agents in their arrest of Gardner. Further, it is well established in Florida that a detainer is not considered custody within the contemplation of the speedy trial rule so as to commence the running of the speedy trial time period. State v. Bassham, 352 So.2d 55 (Fla.1977); State ex rel. Litvan v. Morphonios, 357 So.2d 214 (Fla. 3rd DCA 1978). See also Robbins v. State, 370 So.2d 420 (Fla. 1st DCA 1979), cert. den. 381 So.2d 769 (Fla. 1980).

Accordingly, the petition is denied.

MILLS, C. J., and McCORD, J., concur.


author: PER CURIAM. SHAW, Judge,

text:
    OKALOOSA GUIDANCE CLINIC, INC., Appellant, v. Walter DAVIS and Florida Department of Labor and Employment Security, Appellees.
    No. PP-404.
    District Court of Appeal of Florida, First District.
    June 25, 1980.
    Richard H. Powell, of Estergren, Fortune, Anchors & Powell, P. A., Fort Walton Beach, for appellant.
    James R. Parks, Gen. Counsel, and Dana C. Baird, Tallahassee, for appellees.

      . The stated grounds for termination were: (1) violation of a condition of employment, i. e., sobriety, (2) reporting to work in an intoxicated state, (3) failure to report to work as instructed, (4) refusal to seek treatment, (5) the detrimental effect of the employee’s behavior on the alcohol rehabilitation program, and (6) the employee’s inability to return to work for an undetermined length of time, causing manpower problems.

   PER CURIAM.

Okaloosa Guidance Clinic appeals an order of the Unemployment Appeals Commission finding that appellee, Walter Davis, was eligible for unemployment compensation.

The record reflects that the Clinic’s alcohol detoxification unit hires nondrinking alcoholics to assist with, and serve as models for, patients. Davis, who had been sober for some ten months, was hired on October, 1977. At his employment interview, he was advised that sobriety was a condition of employment. He performed his duties satisfactorily until August 26, 1978, when he began drinking again. The next day, he called his supervisor, who told him to stop drinking and report to work the next morning. He failed to do so, however, and later that day was delivered in an intoxicated state to the detoxification unit. Officials sent him to a Pensacola detoxification center because they thought it would be detrimental for the patients to learn that one of the staff had resumed drinking. Davis remained in Pensacola only four hours before checking himself out. He reported to work in an intoxicated condition. He then was offered treatment at appellant’s clinic but refused it. On August 29, his supervisor recommended he be fired, and he was.

A claims examiner determined that Davis’ actions were not misconduct which would disqualify him from unemployment compensation under § 443.06(9)(a) or (b), and this conclusion was affirmed by an appeals referee as well as the Commission.

We REVERSE. Davis was terminated for misconduct, which included failure to report to work as ordered, removal of himself from an employer-provided opportunity to be treated, subsequent refusal to be treated by the employer, coming onto the employer’s premises in an intoxicated condition, and absence from his duties, all of which placed a burden on the employer to perform its function with a reduced staff. Davis’ actions constituted misconduct as defined by § 443.06(9)(a):

Conduct evincing such willful or wanton disregard of an employer’s interests as is found in deliberate violation or disregard of standards of behavior which the employer has the right to expect of his employee .

See, Tucker v. Florida Department of Commerce, 366 So.2d 845 (Fla. 1st D.C.A.1979); Castillo v. Florida Department of Commerce, 253 So.2d 162 (Fla. 2d D.C.A.1971).

The employer here hires known alcoholics. Termination of such employees for work-related misconduct under § 443.06 is not precluded simply because the grounds of that misconduct are related in some manner to the employee’s resumption of drinking. Appellant does not argue that the alcoholic employee who relapses is thereby guilty of misconduct under § 443.06. On the contrary, because appellant seeks to hire and maintain a staff of sober alcoholics, both by way of affording jobs for those hired and to set an example for those being treated, appellant clearly recognizes the recurrent problems associated with alcoholism. It is not the purpose of Florida Statutes, Chapter 443 to penalize the termination, under proper circumstances, of such an employee.

Accordingly, the order below is REVERSED.

ROBERT P. SMITH, Jr. and BOOTH, JJ., concur.

SHAW, J., dissents with opinion.

SHAW, Judge,

dissenting.

The responsibility of the district court of appeal on review of administrative action is to determine whether there is substantial competent evidence to sustain the agency’s action. Boyette v. State, Professional Practices Council, 346 So.2d 598 (Fla. 1st D.C.A. 1977); § 120.68(10), Florida Statutes (Supp. 1978). The court’s reversal of agency action granting unemployment compensation benefits is predicated upon its conclusion that Davis is guilty of misconduct defined as:

Conduct evidencing such willful or wanton disregard of an employer’s interests as is found in deliberate violation or disregard of standards of behavior which the employer has the right to expect of his employee

The conduct resulting in discharge occurred during an alcoholic relapse. Critical to a review of the appeal referee’s decision to grant benefits is a determination of whether the record contains competent substantial evidence to support a conclusion that the alcohol-induced conduct of Davis was nonvolitional. Ann McBride, the supervisor on whose recommendation Davis was fired, testified that her recommendation was based upon his continued drinking after being told to desist; his failure to report for work, and his refusal to take treatment.

Supportive of the referee’s determination to award benefits was the testimony of Mrs. McBride, the mental health nurse; Mr. Jacobson, the clinic director, and Mr. Speece, program administrator. A fair capsulization of their testimony reflects their concurrence in the American Medical Association’s conclusion that alcoholism is an illness. Their aggregate testimony further supports the conclusion that once an alcoholic takes his first drink he must continue to drink and is no longer in control of his actions. The logical conclusion to be drawn from such testimony is that once Davis began drinking his behavior towards his employer was neither deliberate, willful or wanton, but rather conduct wholly consistent with that of an imbibing alcoholic; conduct that should have been expected by a clinic that employs and deals in the treatment of alcoholics.

The majority opinion relies, in part, upon the court’s determination that termination of employment for work-related misconduct is not precluded simply because the grounds of that misconduct are related in some manner to the employee’s resumption of drinking. This approach, in my opinion, misses the issue. No one questions the clinic’s right to fire a disruptive or unmanageable employee. The employer’s election to fire the employee does not, however, automatically disqualify the employee relative to unemployment compensation entitlement. The disqualification must be based upon a showing that the employee has willfully engaged in disqualifying conduct. The present record supports the referee’s conclusion that once Davis began drinking his illness exacerbated and his conduct towards his employer was neither deliberate, willful or wanton and it therefore afforded no basis for disqualification.

Medical opinion is divided on whether the alcoholic’s first drink is volitional. Courts, in attempting to come to grips with the issue, are equally divided. California has concluded that it is a factual determination to be made by the trier of fact. Jacobs v. California Unemployment Insurance App. Bd., 25 Cal.App.3d 1035, 102 Cal.Rptr. 364 (1972). This position is apparently adopted by Florida as evidenced by the agency’s promulgation of Rule 8B-2.17(5)(d), FAC. Minnesota, on the other hand, takes the position that it is unrealistic to think that an alcoholic will maintain total abstinence. In reversing agency action denying unemployment benefits the Minnesota court states:

. This finding by the Commissioner ignores the nature of the disease of alcoholism and is predicated on the belief that once an alcoholic begins treatment he is able to control his actions. Alcoholism is a chronic illness characterized by remissions and exacerbations. Given the nature of the disease, it is unreasonable to require the employee to maintain total abstinence even after he enters treatment.
Moeller v. Minnesota Dept. of Transp., 281 N.W.2d 879 (Minn.1979).

By ignoring the volitional or nonvolitional aspect of the appellee’s conduct, this court appears to take a third approach; one of strict accountability. This, in my opinion, runs counter to the public policy underlying enactment of unemployment compensation law and the liberal construction to be accorded the claimant for whose benefit it exists. Spaulding v. Florida Industrial Commission, 154 So.2d 334 (Fla. 3rd D.C.A. 1963); Post-Times Company v. Turner, 123 So.2d 359 (Fla. 1st D.C.A.1960). Under the majority approach, an alcoholic employee who has a relapse and is discharged for disruptive conduct will invariable be denied unemployment compensation.

I find the agency action in this instance supported by competent substantial evidence and see no reason to disturb the referee’s decision.

      . Carvin, “ ‘Misconduct’ Under Florida Unemployment Compensation,” St.Fla. Bar Journal 489 (June 1980).

      . Appellees, as support for their argument that the decision below should be affirmed, cite Rule 8B-2.17(5)(d), FAC: Where the individual’s use of alcohol and drugs is a factor in his being discharged, consideration must be given to the possibility of the individual’s being addicted to these substances. When it is determined that the individual is suffering from alcoholism or drug addiction, in the medical sense, and that condition is a factor in his separation from employment, it is appropriate to consider, the alcoholism or drug addiction as an illness in determining the individual’s eligibility for benefits.
      We need not consider the administrative rule because it was not in effect at the time of Davis’ termination and because he was not fired for alcoholism.


text:
    Raymond R. BRUNER, Appellant, v. STATE of Florida COMMISSION ON ETHICS, Appellee.
    No. VV-142.
    District Court of Appeal of Florida, First District.
    July 1, 1980.
    Joseph C. Jacobs of Ervin, Varn, Jacobs, Odom & Kitchen, and Fred W. Baggett of Roberts, Miller, Baggett, LaFace, Richard & Wiser, Tallahassee, for appellant.
    Jim Smith, Atty. Gen., and Joseph W. Lawrence, II, Asst. Atty. Gen., for appellee.
   ORDER VACATING STAY AND DISMISSING APPEAL

McCORD, Judge.

This is an appeal brought by Raymond R. Bruner, appellant, (respondent below) from the final order and public report of appel-lee, State of Florida Commission on Ethics, which was the culmination of a proceeding below under Part III of Chapter 112, Florida Statutes — the Code of Ethics for Public Officers and Employees. The final order made certain findings of fact and conclusions of law, and recommended a penalty. It would serve no useful purpose to here recite the details of the findings of the Commission. Suffice it to say that appellee Commission found that appellant, by his actions, violated § 112.313(6), Florida Statutes, by sexually harassing and by attempting to secure sexual favors from employees and applicants for employment of his office. The final order of appellee recommended that the Governor of the State of Florida suspend appellant from office as the Clerk of the Circuit Court of Jackson County, Florida.

On motion of appellant for a su-persedeas order staying the power of the Governor to suspend appellant from office pending the disposition of the appellate proceedings, this Court, on June 27, 1980, granted the motion pursuant to § 112.3241, Florida Statutes (1979). That section provides as follows:

Judicial review. — Any final action by the commission taken pursuant to this part shall be subject to review in a District Court of Appeal upon the petition of the party against whom an adverse opinion, finding, or recommendation is made. In any case in which the Governor, upon the recommendation of the commission, has the power to suspend an officer or employee, the court may enter a supersedeas order staying the power of the Governor to suspend pending the disposition of the appellate proceeding. However, this section shall not be construed to limit the Governor’s power to suspend a municipal official indicted for crime. (Emphasis supplied.)

On that same date, the Governor entered Executive Order No. 80-57 suspending appellant from office until further executive order, or as otherwise provided by law, and it was filed in the Office of the Secretary of State. There is conflict in the record before us as to whether or not the executive order was filed before or after this Court’s order of stay. Such, however, is immaterial to the disposition of the questions before us. Subsequently on the same date, appellant filed with this Court a motion for clarification and to set aside Executive Order No. 80-57. Appellee filed a response to that motion and a motion to vacate order of supersedeas. We thereafter, on July 1, 1980, heard oral argument of the parties pursuant to show cause order by which we directed the parties to show cause why our stay order should not be vacated, and we requested counsel to direct their arguments to the constitutionality of § 112.3241, Florida Statutes (1979), insofar as it authorizes this Court to stay the exercise of the Governor’s constitutional power. We further directed that the parties show cause why this appeal should not be dismissed as moot. Article IV, Section 7, of the Constitution of the State of Florida provides in pertinent part as follows:

(a) By executive order stating the grounds and filed with the secretary of state, the governor may suspend from office any state officer not subject to impeachment, any officer of the militia not in the active service of the United States, or any county officer, for malfeasance, misfeasance, neglect of duty, drunkenness, incompetence, permanent inability to perform his official duties, or commission of a felony, and may fill the office by appointment for the period of suspension. The suspended officer may at any time before removal by reinstated by the governor.
(b) The senate may, in proceedings prescribed by law, remove from office or reinstate the suspended official and for such purpose the senate may be convened in special session by its president or by a majority of its membership.
(c) * * *

The Governor’s power to suspend a public official under the Constitution is independent of, and may not be impinged upon by, a statute. While we recognize that it is the Court’s duty to avoid holding a statute unconstitutional if there is a construction which may be made of the statute which would render it constitutional, the statute in question here, insofar as it authorizes the Court to enter a supersedeas order staying the exercise by the Governor of his constitutional power pending the disposition of an appellate review of Chapter 112 proceedings, collides directly with the Governor’s constitutional power. Appellant argues that a court-ordered statutory stay does not conflict with the Governor’s constitutional power but merely postpones it for a period of time. Such postponement, however, impinges upon the Governor’s constitutional power and is, therefore, invalid. The following provision of § 112.3241, Florida Statutes (1979), is declared unconstitutional:

In any case in which the Governor, upon the recommendation of the commission, has the power to suspend an officer or employee, the court may enter a superse-deas order staying the power of the Governor to suspend pending the disposition of the appellate proceeding. However, this section shall not be construed to limit the Governor’s power to suspend a municipal official indicted for crime.

Holding as we do that the legislature’s grant to this Court of authority to stay the Governor’s constitutional power is invalid, we next consider the question of whether or not the Governor’s suspension of appellant has rendered this appeal moot. We find that it has. The order of respondent, which is before us for review, finds that grounds exist for the Governor to exercise his constitutional power to suspend appellant from office and recommends that the Governor take that action. Since the Governor now has exercised his constitutional authority by suspending appellant, the question of whether or not there was competent substantial evidence to support respondent Commission’s findings and recommendations is now moot. The Governor has determined that there are sufficient grounds for him to exercise his constitutional power of suspension, and, thus, under Article IV, Section 7, of the Constitution, the question of reinstatement of appellant rests in the hands of the Governor and the Senate under the procedure outlined by § 112.41, Florida Statutes (1979) — Part V. Proceedings below under Part III, Chapter 112, Florida Statutes (1979), insofar as they have terminated below with a recommendation that the Governor exercise his constitutional power to suspend appellant, were purely advisory. The Governor may suspend at any time. He may accept the Commission’s recommendations for suspension when made and suspend then, or he may await the result of appellate review. The Constitution places no restrictions upon him in such regard. The Governor’s suspension when made, however, shifts the forum from this Court to the Governor and the Senate. This appeal, therefore, has been rendered moot by the suspension of appellant.

The stay order entered by this Court on June 30, 1980, is vacated and the appeal is dismissed.

ROBERT P. SMITH, Jr. and BOOTH, JJ., concur.


text:
    Salomon Kassin NESSIM, Appellant, v. Mickey DeLOACHE, Appellee.
    No. 79-1599.
    District Court of Appeal of Florida, Third District.
    July 1, 1980.

      Kelly, Black, Black, Wright & Earle and Brian P. Patchen, Miami, for appellant.
    Beckham, McAiley & Proenza and George E. Schulz, Jr., Miami, for appellee.
    Before HUBBART and NESBITT, JJ., and PEARSON, TILLMAN (Ret.), Associate Judge.
   NESBITT, Judge.

This is an appeal from a summary judgment entered in favor of the alleged seller of a used yacht on a complaint seeking: (1) rescission of the contract of sale; and (2) damages for fraud and deceit arising out of the sale of the yacht. We find the summary judgment to have been improvidently and prematurely entered and therefore reverse.

Nessim, plaintiff-appellant, brought this action against DeLoache, defendant-appel-lee, owner and alleged seller of the vessel. DeLoache employed Richard W. Bertram and Company (Bertram), a Florida corporation, for the purpose of selling his sixty-three-foot yacht, the “Mi-Mar.”

DeLoache and Bertram were joined as co-defendants and joint tortfeasors in the action below in which it was alleged that they had represented that the yacht was in good condition, knowing that it had a latent defect. It was also asserted that Bertram employed a “bait and switch” tactic by initially interesting Nessim in a similar, more desirable and seaworthy vessel, then representing that the vessel was not for sale and diverting his attention to the yacht ultimately purchased. In the complaint, it was further alleged that DeLoache and Bertram had superior knowledge in such matters and that Nessim, having no knowledge of yachts or yachting, relied upon Bertram to supply an independent surveyor as called for in the contract of sale. Additionally, it was asserted that this “independent” surveyor, undisclosed to Nessim at the time of the sale, was a former employee of Bertram and performed only a cursory examination upon the vessel which failed to reveal the latent defect.

The circuit court entered a summary final judgment in favor of DeLoache on the basis that: (a) he was not individually liable for the acts of the corporation which owned the vessel; and (b) Nessim’s action was barred by the doctrine of caveat emptor.

The record reveals that Bertram sold the yacht to Mi Mar Charters of Miami, Inc., of which DeLoache was sole stockholder and president, on August 18, 1972. The purchase and sale agreement between Nessim and DeLoache, individually, was executed on December 28, 1977. The independent surveyor recommended minor repairs be made to the vessel. Those repairs were completed at Bertram’s shipyard prior to the closing. Nessim engaged an interim captain who was aboard the yacht and had an opportunity to inspect the vessel while the repairs were being made prior to consummating the transaction which occurred on January 31, 1978 between Nessim, individually, and Mi Mar Charters of Miami, Inc.

Mi Mar Charters of Miami, Inc. was involuntarily dissolved by the Florida Secretary of State on December 11, 1976 and reinstated on September 13, 1978. Thus,-it affirmatively appears that during the negotiation, purchase, sale, and consummation of the transaction, Mi Mar Charters of Miami, Inc. enjoyed no corporate existence. Nes-sim joined DeLoache, individually, pursuant to Section 607.271(5), Florida Statutes (1977) which, in pertinent part, provides:

Any corporation dissolved by the Department of State . . may be reinstated by the Department of State at any time upon approval of an application for reinstatement signed by an officer or director of the dissolved corporation. . Whenever the application for reinstatement is approved and filed by the Department of State, the corporate existence shall be deemed to have continued without interruption from the date of dissolution. The reinstatement shall have no effect upon any personal liability of the directors, officers, or agents of the corporation on account of actions taken during the period between dissolution and reinstatement, but the power of the corporation to indemnify such directors, officers, or agents shall extend to actions taken during such period, (emphasis added)

The present case presents the classic reason for the legislative adoption of such a statute and we see no reason to depart from the plain and unambiguous pronouncements therein in the application of the statute in this case.

DeLoache seeks to disavow his liability on the authority of Futch v. Southern Stores, Inc., 380 So.2d 444 (Fla. 1st DCA 1979). Without disagreeing with Futch, we find it readily distinguishable because: (a) in Futch, an inactive corporate officer was sought to be held individually liable; and (b) no fraud was alleged. Consequently, we find the trial court erred in holding that DeLoache was not personally liable pursuant to Section 607.271(5), supra.

We also have the unqualified view that, at the very least, the trial court prematurely entered summary final judgment in favor of DeLoache based on the doctrine of caveat emptor.

The classic illustration of fraud is where one party having superior knowledge intentionally fails to disclose a material fact, Columbus Hotel Corporation v. Hotel Management Co., 116 Fla. 464, 156 So. 893 (1934); Pryor v. Oak Ridge Development Corporation, 97 Fla. 1085, 119 So. 326 (1928), which is not discoverable by ordinary observation, Kitchen v. Long, 67 Fla. 72, 64 So. 429 (1914); Hirschman v. Hodges, O’Hara & Russell Company, 59 Fla. 517, 51 So. 550 (1910), especially where coupled with a trick or artifice, Joiner v. McCullers, 158 Fla. 562, 28 So.2d 823 (1947); Stackpole v. Hancock, 40 Fla. 362, 24 So. 914 (1898).

A principal is civilly liable for the tortious acts of his agent which are found to be within the course and scope of the agent’s employment. Gates v. Utsey, 177 So.2d 486 (Fla. 1st DCA 1965); Van Engers v. Hickory House, 104 So.2d 843 (Fla. 3d DCA 1958); City of Green Cove Springs v. Donaldson, 348 F.2d 197 (5th Cir. 1965), even where the agent’s acts or representations are fraudulent or deceitful, West Florida Land Co. v. Studebaker, 37 Fla. 28, 19 So. 176 (1896); Donner v. Morse Auto Rentals, Inc., 147 So.2d 577 (Fla. 3d DCA 1962), and even though the principal was not cognizant of his agent’s misrepresentations, Wheeler v. Baars, 33 Fla. 696, 15 So. 584 (1894).

At the time summary judgment in favor of DeLoache was entered, his deposition had not been taken. Until DeLoache’s deposition is taken, there are genuine issues of material fact remaining as to: (1) whether Bertram was acting within the course and scope of its employment; (2) whether Nessim had a right to rely upon Bertram’s representations; and (3) whether Nessim had an opportunity to inspect and learn of the defect whether it be latent or otherwise.

The issue of fraud is not ordinarily a proper subject for summary judgment because, being a subtle matter, fraud requires a full explanation of the facts and circumstances of the alleged wrong to permit a determination whether they collectively constitute fraud, Bryant v. Small, 236 So.2d 150 (Fla. 3d DCA 1970); Alepgo Corporation v. Pozim, 114 So.2d 645 (Fla. 3d DCA 1959), cert. denied 117 So.2d 842 (Fla.1960), and for that reason such determination is seldom one that can be made in a legally sufficient manner without a trial. Alepgo Corporation v. Pozim, supra.

Reversed and remanded.

      . Discovery disclosed that the vessel had run aground and been partially submerged which resulted in damage to the electrical system.


author: BARKDULL, Judge.

text:
    GATOR SHOE CORP., a Florida Corporation, Appellant, v. Jerome A. TAUDTE, d/b/a Taudte Properties, Appellee.
    No. 79-1709.
    District Court of Appeal of Florida, Third District.
    July 1, 1980.

      Taylor, Brion, Buker & Greene and Ar-naldo Velez, Miami, for appellant.
    Levine, Reckson, Reed & Geiger and Allen P. Reed, Miami, for appellee.
    Before BARKDULL, HUBBART and SCHWARTZ, JJ.
   BARKDULL, Judge.

The parties to this cause entered into several written leases pertaining to certain warehouse properties; the appellant as the tenant, and the appellee as the landlord. The lease contained provisions regarding payment of rent and additional paragraphs that read in part as follows:

“11. Tenant agrees to pay all cost and expenses of collection and reasonable Attorney’s fees on any part of said rental that may be collected by an Attorney, suit, distress, or foreclosure, (emphasis added)
“15. It is understood and agreed between the parties herein that any charges against Tenant by Landlord for services, utilities or for work done on the premises by order of Tenant or otherwise accruing under this lease, shall be considered as rent due and shall be included in any lien for rent.
“31. Tenant further agrees that Tenant will pay all liens of contractors, subcontractors, mechanics, laborers, material-men, and other items of like character, and will indemnify Landlord against all legal costs and charges, bond premiums for release of liens, including counsel fees reasonably incurred in and about the defense of any suit in discharging the said premises or any part thereof from any liens, judgments, or encumbrances caused or suffered by tenant. It is understood and agreed between the parties hereto that the costs and charges above referred to shall be considered as rent due and shall be included in any lien for rent.
The Tenant herein shall not have any authority to create any liens for labor or material on the Landlord’s interest in the above described property, and all persons contracting with the Tenant for the destruction or removal of any building or the erection, installation, alteration, or repair of any building or other improvements on the above described premises, and all materialmen, contractors, mechanics, and laborers, are hereby charged with notice that they must look to the Tenant and to the Tenant’s interests only in the above described property to secure the payment of any bill for work done or material furnished during the rental period created by this lease.”

At the conclusion of the term of the lease or extensions thereof, the tenant vacated the premises, returned the premises to the landlord, reasonable wear and tear excepted, and the landlord was caused to expend large sums of money to repair the premises and make them available for subsequent re-leasing. Thereafter, the landlord instituted a suit for the collection of rent, insurance, taxes, damages for repairs, and attorney’s fees. By stipulation of the parties, the cause was submitted to a jury as to the amount of rent due and damages sustained by the landlord, with a reservation that the court would determine the amount of attorney’s fees subsequent to the jury trial.

Thereafter, the jury rendered an award to the landlord in the amount of $91,492.00. The trial court entered a final judgment which read, in part, as follows:

“That the Plaintiff, Jerome A. Taudte shall have and recover from the Defendant, Gator Shoe Corp., the sum of $91,-492.00, together with costs and attorneys fees hereafter to be considered, for all of which let execution issue.”

Five days after the rendition of the final judgment, the landlord moved for the assessment of costs and attorney’s fees. Some thirty-two days later, the trial court entered an award of $26,525.00 for attorney’s fees and $3,700.35 for costs. This appeal ensued.

The appellant-tenant urges three points for reversal: 1. That there was no valid reservation of jurisdiction for the trial court to entertain the motion for attorney’s fees. 2. That even if he had jurisdiction, the amount he awarded was based on damages which were awarded for repair and not on the collection of rental, and that Paragraph 11 of the lease specifically limited attorney’s fees to collection on “said rental” which could only relate back to the rental prescribed at the beginning of each lease. 3. That the trial court erred in awarding, as an item of cost, the cost of copies of depositions.

As to the point regarding jurisdiction, we find that the trial court validly reserved same in the final judgment under the following authorities: Farr v. Farr, 249 So.2d 761 (Fla.3d DCA 1971); Hyman v. Hyman, 310 So.2d 378 (Fla.2d DCA 1975); Kipnis v. Kipnis, 330 So.2d 67 (Fla.3d DCA 1976). We do not find the reasoning in Frumkes v. Frumkes, 328 So.2d 34 (Fla.3d DCA 1976) and McEachin v. McEachin, 154 So.2d 894 (Fla. 1st DCA 1963) to be persuasive. These cases related to a reservation only to enforce a final judgment, whereas in the instant case the trial court reserved jurisdiction to consider attorney’s fees and we think this situation is analogous to that involved in the First District Court of Appeal case relating to an award of interest. See: Chipola Nurseries, Inc. v. Division of Administration, Department of Transportation, 335 So.2d 617 (Fla.lst DCA 1976).

As to the second point, the amount of attorney’s fees, we reverse and remand the cause to the trial court. Paragraph 11 of the lease, which provided for attorney’s fees, clearly outlined that such fees were recoverable only on “said rental” which is prescribed at the beginning of each lease. To further indicate that attorney’s fees were to be recoverable only under certain circumstances is Paragraph 31 of the leases, which related to indemnification for liens caused to be entered against the property by the tenant. The lease did provide, in Paragraph 15, that certain charges were to be considered as rental for some purposes, but this did not have the effect of expanding the attorney’s fees provision contained in Paragraph 11, which limited it by the words “said rental” to the earlier paragraph carrying with it the responsibility to pay rent.

As to the award of costs for copies of depositions, the law is clear in this State, and we must follow it until changed, that the cost for copies of depositions is not a valid item to be included in a cost order. Florida Greyhound Lines, Inc. v. Jones, 60 So.2d 396 (Fla.1952); Cohen v. Dennis, 209 So.2d 467 (Fla.3d DCA 1978).

Therefore, the final judgment here under review is reversed as to the amount of attorney’s fees awarded and reversea as to the award of costs for copies of depositions. The matter is returned to the trial court for the purpose of awarding a reasonable fee for collecting those items of rental which would have accrued to the landlord pursuant to rental schedules of the leases and which he had to collect by these legal proceedings.

Reversed and remanded, with directions.

      .
      “It is hereby agreed and stipulated, by undersigned counsel for the parties to the above captioned cause, that the amount of attorneys fees, if any, to be awarded to the Plaintiff shall be determined at a hearing to be held after the conclusion of the trial and the rendition of a verdict by the jury.”


author: HENDRY, Judge.

text:
    The STATE of Florida, Appellant, v. In the Interest of J. A., a Juvenile, Appellee.
    No. 79-1787.
    District Court of Appeal of Florida, Third District.
    July 1, 1980.
    Janet Reno, State’s Atty. and Ira N. Loewy, Asst. State’s Atty., for appellant.
    Bennett H. Brummer, Public Defender and Warren S. Schwartz and Bruce Rosen-thal, Asst. Public Defenders, for appellee.
    Before HENDRY and BASKIN, JJ., and PEARSON, TILLMAN (Ret.), Associate Judge.
   HENDRY, Judge.

Appellant, State of Florida, appeals a final order dismissing its petition for delinquency in which it was alleged that the appellee did unlawfully and feloniously escape from lawful confinement, or while being transported to lawful confinement as a juvenile alleged to have committed a delinquent act or violation of section 944.40, Florida Statutes (1977).

The undisputed facts upon which the petition for delinquency is based show that the child departed from a police car en route to a juvenile detention facility after being taken into custody.

The petition was dismissed by the trial court upon motion of the appellee on the ground that section 944.40 does not apply to juveniles. It is from that order of dismissal that the state has appealed.

The state’s sole point on appeal is whether the trial court erred in dismissing the petition for delinquency on the ground that a juvenile may not be prosecuted for “scape from custody of a police officer while being transported to a place of detention.

We hold that the trial court was correct in dismissing the petition since the juvenile was charged only with the violation of section 944.40 and not with a violation of any other statute. It is clear that the allegations of the petition do not constitute a violation of law within the meaning of section 944.40, Florida Statutes. Earnest v. State, 351 So.2d 957 (Fla.1977); Prince v. State, 360 So.2d 1161 (Fla. 4th DCA 1978); In re F.G., 349 So.2d 727 (Fla. 4th DCA 1977). The order appealed is affirmed.

Affirmed.

      . § 944.40, Fla.Stat. (1977) provides: Any prisoner confined in any prison, jail, road camp, or other penal institution, state, county, or municipal, working upon public roads, or being transported to or from a place of confinement who escapes or attempts to escape from such confinement shall be guilty of a felony of the second degree.