author: DANIEL S. PEARSON, Judge. BARKDULL, Judge,

text:
    Cordelia WALLACE, Appellant, v. P. L. DODGE MEMORIAL HOSPITAL, Appellee.
    No. 79-1584.
    District Court of Appeal of Florida, Third District.
    June 2, 1981.
    Podhurst, Orseck & Parks and Joel D. Eaton, Joe N. Unger, Miami, Wolfson & Diamond, Miami Beach, for appellant.
    Fowler, White, Burnett, Hurley, Banick & Strickroot and Henry Burnett, Miami, for appellee.
    Before BARKDULL, SCHWARTZ and DANIEL S. PEARSON, JJ.
   DANIEL S. PEARSON, Judge.

This is the second appearance of this case before this eourt. Three years ago, a panel of this court overturned a summary judgment entered in favor of P. L. Dodge Memorial Hospital. See Wallace v. P. L. Dodge Memorial Hospital, 355 So.2d 855 (Fla.3d DCA 1978). In so doing, they held that “[t]here was a genuine issue of material fact as to the alleged negligence of the defendant hospital in failing to provide adequate attendants to protect the plaintiff as an invitee of the hospital against a violent attack by one of its mental patients,” see Wallace v. P. L. Dodge Memorial Hospital, supra, at 855. After remand, the case went to trial. A jury resolved that issue of fact in favor of Mrs. Wallace. The trial court, notwithstanding the verdict, entered a judgment for the hospital. Mrs. Wallace appeals from that judgment.

The evidence from which this court determined that there existed an issue of fact precluding summary judgment is indisputably the same as the evidence later presented at trial. Therefore, our ruling in 1978 established the law of the case, precluding, except in extraordinary circumstances, a contrary determination that no issue of fact existed. Myers v. Atlantic Coast Line Railroad Company, 112 So.2d 263 (Fla.1959); Geller v. 2500 Collins Corp., 130 So.2d 322 (Fla.3d DCA 1961); Lincoln National Life Insurance Company v. Roosth, 306 F.2d 110 (5th Cir. 1962) (en banc). Since the trial court’s judgment is a determination contrary to the established law of the case, and since we are of the view that this case paradigmatically requires us to apply the doctrine of law of the case, we reverse.

The situation in the present case is not unlike that addressed by the Fifth Circuit Court of Appeals, sitting en banc, in Lincoln National Life Insurance Company v. Roosth, supra. There a panel of the court reversed a judgment n. o. v. entered for the defendant-insurer. See Roosth v. Lincoln National Life Insurance Company, 269 F.2d 171 (5th Cir. 1959). A retrial resulted in a verdict for the plaintiff-insured and the defendant appealed. The evidence in both trials was identical.

The panel to which the second appeal was assigned differed in its make-up from the panel which decided the first appeal. A serious question arose whether the second panel agreed with the decision of the former panel that the evidence was legally sufficient to present an issue to be decided by a jury. In light of that, the court on its own motion ordered an en banc hearing. The en banc court decided that it is precisely this kind of case which requires the application of the law of the case doctrine.

“The reconsideration of this identical record by the second panel and now by the full Court revealed another thing of equal positiveness. There are no differences among the Judges of this Court on the questions of law as such. The differences, such as they exist, relate to the facts. It is true, of course, that whether the evidence is sufficient to make out a jury case is a question of law. [citations omitted]. But it is one only in relation to the particular facts of the particular case. There is no disagreement over the controlling standard, only on whether the evidence does, or does not, satisfy that standard.
“It is that absence of any disagreement on controlling legal principles and the very substantial actual sameness of the two records which leads us to the conclusion that this is a case calling imperatively for the application of the doctrine of the law of the case.”
******
“[W]e think that when the issue resolves itself, as it does so clearly here, into a question of whether the same body of evidence is enough to permit a jury submission, neither a subsequent, second, or third, panel of this Court, nor the whole Court sitting en banc, should ordinarily undertake to review the correctness of the first decision or, doing so, arrive at a contrary conclusion.... ” 306 F.2d at 112, 113.

The rationale of the Fifth Circuit applies with equal force to us:

“We think that in a multi-Judge Court it is most essential that it acquire an institutional stability, by which the immediate litigants of any given case, and equally important, the bar who must advise clients or litigants in situations yet to come, will know that in the absence of most compelling circumstances, the decision on identical questions, once made, will not be re-examined and redecided merely because of a change in the composition of the Court or of the new panel hearing the case.” 306 F.2d at 114.

We fully recognize that we have the power to reconsider our own rulings, notwithstanding that such rulings have become the law of the case. See Strazzula v. Hendrick, 177 So.2d 1 (Fla.1965). But that power is to be exercised only in the most compelling circumstances, only for the most cogent reasons, and only where a manifest injustice would result from strict adherence to the rule. Strazzula v. Hendrick, supra. This is not a case in which that power should be exercised. See also Goodman v. Olsen, 365 So.2d 393 (Fla.3d DCA 1979); Schempp v. Schempp, 339 So.2d 672 (Fla. 1st DCA 1976). Instead, this is simply a case where a former decision of this court is attacked as being erroneous — a case for which the doctrine of the law of the case was intended. Indeed, were we to carve an exception to the law of the case doctrine here, and question the soundness of the former decision, the doctrine would be subsumed by the exception.

The cases relied upon by Judge Barkdull in his dissent correctly point out that when the evidence before the appellate court at the time it reverses a trial court’s entry of summary judgment differs from the evidence ultimately developed at trial, the appellate court’s holding that there are triable issues of fact does not preclude the trial court from later entering a directed verdict. Were we dealing here with even an arguable difference in the evidence, we would agree that the law of the case, which presupposes, in the present context, a ruling of law based on a specified set of facts, would not control. But the critical point in the present case is that the evidence concerning the number and training of the hospital’s employees and staff, which was before this court when it held that it was for a jury to determine whether the number and training of hospital employees and staff were adequate, was exactly the same as the evidence presented at trial. It is precisely when that body of evidence is, as here, the same that the reasoning of Lincoln National Life Insurance Company v. Roosth, supra (a ease which, incidentally, is left undisturbed by later Fifth Circuit decisions found in the dissent), controls.

We therefore hold that the law of the case, predicated on evidence identical to that presented at trial, required that the issue of the hospital’s negligence be decided by a jury, prevented the trial court from entering a judgment for the hospital, and prevents us from affirming that judgment.

We must, however, affirm the trial court’s alternative order granting a new trial on the ground that the verdict was contrary to the manifest weight of the evidence. No abuse of discretion in this ruling has been demonstrated, and it may not, therefore, be set aside on appeal. Cloud v. Fallis, 110 So.2d 669 (Fla.1959); Rivera v. White, 386 So.2d 1233 (Fla.3d DCA 1980); see Baptist Memorial Hospital, Inc. v. Bell, 384 So.2d 145 (Fla.1980); Castlewood International Corp. v. LaFleur, 322 So.2d 520 (Fla.1975). To the extent that Wackenhut Corp. v. Canty, 359 So.2d 430 (Fla.1978), and its progeny mandate that the trial court articulate the bases of its conclusion to grant a new trial on manifest weight grounds, the order entered below fully satisfied that requirement. That order spells out the trial judge’s reasons for his finding that there was no evidence at all of the defendant’s liability. Even though the law of the case compels us to disagree with that conclusion, it surely cannot be said that the court’s opinion provides no record-based support for the determination that the manifest weight of the evidence was contrary to the jury’s verdict. See Robinson v. Allstate Ins. Co., 367 So.2d 708 (Fla.3d DCA 1979); Urti v. Transport Commercial Corporation, 479 F.2d 766 (5th Cir. 1973); Keystone Floor Products Co. v. Beattie Manufacturing Company, 432 F.Supp. 869 (E.D.Pa.1977). Thus, as in, e. g., Wagner v. McCormick, 153 So.2d 860 (Fla.2d DCA 1963), we reverse the judgment for the hospital, but affirm the order requiring a new trial.

Reversed in part; affirmed in part.

BARKDULL, Judge,

dissenting.

I respectfully dissent from the majority opinion that finds that the trial judge committed error in the entry of the N.O.V. because of the doctrine of the “law of the case”.

Following our opinion in Wallace v. P. L. Dodge Memorial Hospital, 355 So.2d 855 (Fla.3d DCA 1978), this matter reoccurred in the trial court. At the conclusion of the plaintiff’s case, upon a motion for directed verdict being made, the trial court indicated he was inclined to grant it but would submit the cause to the jury, and if the jury found in favor of the plaintiff he would grant N.O.V.

Subsequently, the plaintiff received a favorable jury verdict. The jury determined that the defendant was 80% negligent and that the plaintiff was 20% negligent. The trial court also indicated that if he was in error in granting the N.O.V. he would grant a new trial, because the verdict was against the manifest weight of the evidence and the jury had been inadequately charged. An order granting the N.O.V. and/or new trial reads as follows:

“ORDER GRANTING JUDGMENT N.O.V. AND, IN THE ALTERNATIVE, ORDER GRANTING NEW TRIAL
At the conclusion of the Plaintiff’s case the Defendant P. L. DODGE MEMORIAL HOSPITAL filed a motion for a Directed Verdict on the grounds that there is no evidence upon which the jury could lawfully return a verdict for the Pláin-tiff. This Court announced at that time that it was clearly convinced that the Motion should be granted but under the appropriate rule would reserve ruling, allow the matter to proceed to the jury and reconsider the Motion if the jury’s verdict was returned.
The jury has found for the Plaintiff by finding that the Defendant was 80% negligent and the Plaintiff 20% negligent. The amount of damages was Eighteen Thousand Dollars ($18,000). This Court concerns itself only with the question of whether or not there is any basis for finding that the Defendant was negligent, which was a legal cause of injury to the Plaintiff. It will not consider the amount of damages.
This Court is still unable to find a basis upon which a jury could lawfully find that the Plaintiff suffered injuries through any negligence of the Defendant. The Plaintiff had caused her husband to be placed in the hospital by the institution of a Baker Act proceedings. She was injured by her husband when she visited him in the hospital. This occurred when she sat down on the bed with him, at which time he grabbed hold of her, took her into the bathroom and committed battery upon her. This case was before the Third District Court of Appeals, which reversed a Summary Judgment, stating that there is an issue of fact on whether or not the hospital provided an adequate number of employees and staff. There was no evidence in the record that the staff was inadequate. Even if it were inadequate, there is no evidence that the number or the training of the staff contributed or was a legal cause of the Plaintiff’s injuries in any way. The hospital staff had received no warnings or instructions to prevent the Plaintiff from visiting her husband. Her injuries were not the result of any lack of supervision by the hospital. This is not a case where the inmate had escaped and caused injury to third persons, as is set forth in the case in 70 ALR 2nd, 366. I am unable to understand how the hospital breached any duty to the Plaintiff. In short, although I have reviewed the case and listened attentively to counsel for the Plaintiff, this Court is unable to find any legal basis for assessing liability against the Defendant hospital for injuries suffered by the Plaintiff resulting from battery performed on her by her husband.
In the event that an Appellate Court should disagree with this Court on the foregoing, then this Court still finds that the Defendant would be entitled to a new trial for the reason that the verdict was clearly against the manifest weight of the evidence. In addition thereto, this Court does not feel that the jury was adequately instructed in this matter. The Court, therefore, grants the Motion for a New Trial as an alternative to the entry of the judgment should that judgment be reversed. It is, therefore,
ORDERED and ADJUDGED that notwithstanding the jury verdict, the Plaintiff, CORDELIA WALLACE, take nothing of and from Defendant P. L. DODGE MEMORIAL HOSPITAL, and judgment be, and the same is hereby, entered for the Defendant P. L. DODGE MEMORIAL HOSPITAL.”

I would affirm the order granting the N.O.V. because the plaintiff failed to establish that the security personnel and/or attendants at the hospital were inadequate under the circumstances. It would appear that the standard of care for a psychiatric hospital is what is normal and customary for any hospital in the community, coupled with the hospital’s knowledge of the patient’s condition. See: DeMartini v. Alexander Sanitarium, 192 Cal.App.2d 442, 13 Cal.Rptr. 564 (1961); 9 Am.Jur.2d, Proof of Facts, 223; 40 Am.Jur.2d, Hospital & Asylums, § 26. However, this duty of care is that extended to the patient and not to a third person, as in the case sub judice. Herein, the injured party is a visitor to the hospital and, as such, is an invitee. See: McNulty v. Hurley, 97 So.2d 185 (Fla.1957); North Broward Hospital District v. Adams, 143 So.2d 355 (Fla.2d DCA 1962); Sparks v. Ober, 192 So.2d 81 (Fla.3d DCA 1966); St. Vincent’s Hospital, Incorporated v. Crouch, 292 So.2d 405 (Fla. 1st DCA 1974); 40 Am. Jur.2d, Hospitals & Asylums, § 35.

The majority opinion, in reversing, relies primarily on Federal cases which do not involve summary judgments. My research discloses cases from the Fifth Circuit that clearly indicate that a ruling on a summary judgment does not prevent a trial judge from subsequently entering, as a matter of law on the facts adduced before him (a judge), a directed verdict or other order favorable to the party advocating the motion for summary judgment in the first instance. See: Gross v. Southern Railway Company, 446 F.2d 1057 (5th Cir. 1971), wherein the following is found at page 1059:

“In our former opinion where summary judgment in favor of the railroad defendant was reversed, we said that under the pleadings, affidavits, exhibits and depositions on file, there were issues of fact that should have been submitted to a jury, such as whether this was a ‘special circumstances’ crossing, which was more than ordinarily dangerous and required special warnings; whether the train whistle was blown as required by statute; and whether any of the acts of negligence charged to the railroad constituted a proximate cause of the accident. Plaintiffs contend that our opinion has disposed of most of the issues herein and is ‘a mandatory blueprint for all subsequent proceedings.’ Defendant disputes this contention.
“An important threshold question, therefore, is whether our previous decision precluded the District Judge from giving due consideration to defendant railroad’s motions for a directed verdict and later for judgment notwithstanding the verdict, on completion of a full trial on the merits. We have answered this question before on at least five occasions — that the Trial Judge is free to consider such motions. It is settled in this Circuit, therefore, that prior denial of summary judgment does not rule out the possibility of a subsequent directed verdict. The earliest applicable decision of this Circuit is Robbins v. Milner Enterprises, Inc., 5 Cir., 1960, 278 F.2d 492, in which we said that ‘[T]he existence of a genuine controversy [in connection with a motion for summary judgment] does not foreclose a directed verdict if on the evidence as it is actually and finally adduced on a trial reasonable minds could not reach a contrary conclusion.’ Id. at 496. We said that this holding ‘is a recognition that at times the issues may be such that only after the agony of a full-blown trial may it authoritatively be determined that there was never really the decisive issue of fact at all.’ We concluded in Robbins that ‘Certainty, or predictable certainty, if not actually unobtainable, is often an illusion in the complex variables which pass through a courthouse door. The rules contemplate that a judge can take a first and a second and a third and a final look. It is the predictable uncertainty which sometimes makes this necessary.’ Id. at 497, footnote omitted.
“In Braniff v. Jackson Ave.-Gretna Ferry, Inc., 5 Cir., 1960, 280 F.2d 523, 529, Robbins was cited with approval and we said: ‘[T]he reversal of summary judgment does not foreclose the right and the imperative duty of the District Judge to test the case against the actual evidence adduced at every stage of the trial. Nor is it a forecast that on remand the case must go to the jury. That depends upon the actual proof made and such proof may fall way short.’
“Later, in Stanley v. Guy Scroggins Construction Company, 5 Cir., 1961, 297 F.2d 374, 378, where granting of summary judgment was reversed and the case remanded for trial, we said: ‘This holding does not rule out the possibility of a directed verdict. It may be, when the evidence is in, that the district judge will find that the case should be disposed of by a directed verdict. He is free to do so. Robbins v. Milner Enterprises, Inc., 5 Cir., 1960, 278 F.2d 492, 496-497. On the other hand, this may prove to be a case where the underlying facts are susceptible of conflicting inferences, and the choice must be left to the jury.’
“In Gleason v. Title Guarantee Company, 5 Cir., 1963, 317 F.2d 56, 58, in response to a contention by appellant that since the evidence before the District Court on the hearing for summary judgment was substantially the same as the evidence on which the directed verdict was granted, the motion for a directed verdict should accordingly have been denied, we said, ‘Sound practical reasons * * * may justify a trial judge’s denying a motion for summary judgment even on the identical evidence supporting his granting a directed verdict.’ (Emphasis supplied.)
“To the same effect see Sheets v. Burman, 5 Cir., 1963, 322 F.2d 277, where the Court quoted with approval the prior holdings in Stanley and Robbins. See also 5 Moore, Federal Practice (2d ed. 1969) ¶ 50.03[4], p. 2338, in which Professor Moore states, ‘[T]he earlier denial of a motion for summary judgment should not, in any way, be considered a barrier to later consideration of a motion for directed verdict.’ (Footnote omitted.)” [Emphases added.]

To the same effect, see: E. C. Ernst, Inc. v. General Motors Corp., 537 F.2d 105 (5th Cir. 1976), wherein the following is found at page 108:

“[1-3] We noted at the outset of our opinion, however, that we were merely reviewing the record under ‘the usual standard’ governing appeals from summary judgments. Id. [482 F.2d 1047] at 1049. That standard, of course, requires us to view the record in the light most favorable to the party who opposed the summary judgment motion; accepting his allegations as true and giving him the benefit of the doubt whenever his assertions conflict with those of the moving party. United States v. Diebold, Inc., 369 U.S. 654, 655, 82 S.Ct. 993, 994, 8 L.Ed.2d 176 (1962); Gauck v. Meleski, 5 Cir., 1965, 346 F.2d 433, 436; 10 C. Wright & A. Miller, Federal Practice and Procedure § 2716 at 430-32 (1973). Under this standard, our analysis of the limited record before us necessarily was of a binding character only with respect to the existence of a genuine triable controversy. As in any reversal of summary judgment, our assessment of the facts was not a mandatory blueprint for all subsequent proceedings upon remand. Gross v. Southern Ry., 5 Cir. 1971, 446 F.2d 1057, 1060. Indeed, we have held that our reversal of a summary judgment does not preclude the trial court from subsequently directing a verdict against the appellant:
[T]he reversal of summary judgment does not foreclose the right and the imperative duty of the District Judge to test the case against the actual evidence adduced at every stage of the trial. Nor is it a forecast that on remand the case must go to the jury. That depends upon the actual proof made and such proof may fall way short.
Braniff v. Jackson Ave.-Gretna Ferry, Inc., 5 Cir., 1960, 280 F.2d 523, 529; accord, Gross v. Southern Ry., supra; Sheets v. Burman, 5 Cir., 1963, 322 F.2d 277, 281; Stanley v. Guy Scroggins Constr. Co., 5 Cir., 1961, 297 F.2d 374, 378; Robbins v. Milner Enterprises, Inc., 5 Cir., 1960, 278 F.2d 492, 496-97.”

In Florida it has been held that failure to grant a summary judgment doesn’t establish the “law of the case”. City of Coral Gables v. Baljet, 250 So.2d 653 (Fla.3d DCA 1971). It has also been held in Florida that the fact that a trial court should not have granted a defendant a summary judgment does not preclude it, in subsequent proceedings, from ruling in favor of the defendant. Boulevard National Bank of Miami v. Gulf American Land Corporation, 212 So.2d 17 (Fla.3d DCA 1968).

For the above reasons, I would affirm the trial court in the entry of the N.O.V. I concur in the affirmance of the order granting a new trial, but note that this ruling seems contrary to the reasoning for the reversal as to the N.O.V. On the one hand the majority seems to be saying the matter should be left to a jury determination yet, on the other hand, approves of the action of the trial judge’s ruling as a matter of law that the verdict of a jury is against the manifest weight of the evidence.

ADDENDUM TO DISSENT

After my dissent was prepared and circulated, Judge Pearson amended his opinion by removing certain authorities originally cited, and now bases the opinion primarily upon the Fifth Circuit Court of Appeals opinion, reported as Lincoln National Life Insurance Company v. Roosth, 306 F.2d 110 (5th Cir. 1962), and contends that the identical evidence was previously before this court at the time it reversed the summary judgment. This cannot be ascertained from our prior opinion. The cited case (Lincoln National Life Insurance Company v. Roosth, supra) involved two trials with the identical evidence. This is not the case sub judice. Unless the earlier opinion and decision demonstrates that the factual basis was identical, the doctrine of the law of the case should not be applied. See: Greenberg v. Greenberg, 397 So.2d 1032 (Fla.3d DCA 1981), wherein this court recently said:

“. .. The law of the case applies where the same factual and legal issue is presented to the court a second time_”

In reversing the summary judgment, the earlier opinion stated that “there was a genuine issue of material fact as to the alleged negligence of the defendant hospital in failing to provide adequate attendants. ..”. The trial judge, in entering his order granting N.O.V., stated: “There was no evidence in the record that the staff was inadequate.” (emphasis added) This clearly demonstrates that the evidence at the trial was not the same as that considered by this court in the earlier case, as this court found an issue of adequate attendants when reversing the summary judgment yet at the time of trial the trial judge found no evidence in this regard. The burden was on the plaintiff in the trial court to establish that the attendants were inadequate. The trial judge found that the plaintiff failed to establish this crucial part of her evidence. The doctrine of the law of the case cannot supply this deficiency of proof, even if applicable.

I adhere to my dissent as originally prepared and circulated.

      . The power to depart from prior rulings has been exercised circumspectly. Exceptions to the law of the case doctrine have been made only where the prior decision of the court (1) established unsound precedent for the guidance of others, e. g., State v. LoChiatto, 381 So.2d 245 (Fla. 4th DCA 1979) (where court’s initial decision authorized assessment of attorneys’ fees against State for appellate proceedings in a criminal case under statute pertaining to civil cases only); Standard Oil Co. of California v. Johnson, 56 Cal.App.2d 411, 132 P.2d 910 (1942); McGovern v. Kraus, 200 Wis. 64, 227 N.W. 300 (1929); (2) announced a doctrine in conflict with previous pronouncements of the court, e. g., Brewer v. Browning, 115 Miss. 358, 76 So. 267 (1917); (3) was made under a mistake of fact, e. g., Cochran v. M & M Transportation Co., 110 F.2d 519 (1st Cir. 1940) (mistake of fact that judgments had been entered against the plaintiff, causing court to hold that plaintiffs failure to appeal precluded review); Putnam & Norman, Inc. v. Levee, 186 So. 368 (La.App. 1939) (mistake of fact that corporation in whose favor judgment had been entered was dissolved, causing court to set aside judgment); Bird v. Sellers, 122 Mo. 23, 26 S.W. 668 (1894) (mistake of fact that pertinent statute had been revised, causing decision based on supposed revision); (4) was impacted by an intervening decision, e. g., Johnson v. Cadillac Motor Car Co., 261 F. 878 (2d Cir. 1919) (where court first held car manufacturer not liable to buyer with whom there was no privity of contract, but, in light of the intervening landmark decision in Macpherson v. Buick Motor Co., 217 N.Y. 382, 111 N.E. 1050 (1916), later held that an exception to the law of the case doctrine should be made where, inter alia, the initial decision “lays down a principle of law for future guidance which is unsound and contrary to the interests of society”; Maryland Casualty Company v. Hallatt, 326 F.2d 275 (5th Cir.), cert. denied, 377 U.S. 932, 84 S.Ct. 1335, 12 L.Ed.2d 296 (1964), and Connor v. New York Times Co., 310 F.2d 133 (5th Cir. 1962) (where federal court had initially decided cases in reliance on state court decisions later overruled); (5) involved an important public policy consideration, e. g., Beverly Beach Properties, Inc. v. Nelson, 68 So.2d 604 (Fla.1953) (where court’s initial decision failed to give full faith and credit to judgment of sister state); see Annot., 87 A.L.R.2d 271 (1963); 3 Fla.Jur.2d Appellate Review §§ 414-29 (1978).

      . The proposition that a trial court may for sound practical reasons deny summary judgment, afford the parties a full opportunity to present evidence at trial, and thereafter direct a verdict on the identical evidence, is inapposite to the present inquiry. Gleason v. Title Guarantee Co., 317 F.2d 56 (5th Cir. 1963). The denial of summary judgment merely defers the matter until final hearing. City of Coral Gables v. Baljet, 250 So.2d 653 (Fla.3d DCA 1971).

      . But see Hauser Motor Co., Inc. v. Byrd, 377 So.2d 773 (Fla.4th DCA 1979), and Robinson v. Allstate Ins. Co., 367 So.2d 708 (Fla.3d DCA 1979), holding that Wackenhut did not change the rule that the appellate court should examine the record to determine whether a new trial order granted on manifest weight grounds was an abuse of discretion, even if the particularized reasons are not specified in the order itself.
      We assume without determining that Wacken-hut applies to new trial orders other than those which, like Wackenhut itself, and most, if not all, of the subsequent decisions, deal with issues of the alleged excessiveness or inadequacy of damages.

      . The order stated, in pertinent part:
      “The jury has found for the Plaintiff by finding that the Defendant was 80% negligent and Plaintiff 20% negligent.

      “This Court is still unable to find a basis upon which a jury could lawfully find that the plaintiff suffered injuries through any negligence of the Defendant. The Plaintiff had caused her husband to be placed in the hospital by the institution of a Baker Act proceedings [sic]. She was injured by her husband when she visited him in the hospital. This occurred when she sat down on the bed with him, at which time he grabbed hold of her, took her into the bathroom and committed battery upon her. This case was before the Third District Court of Appeals, which reversed a Summary Judgment, stating that there is an issue of fact on whether or not the hospital provided an adequate number of employees and staff. There was no evidence in the record that the staff was inadequate. Even if it were inadequate, there is no evidence that the number or the training of the staff contributed or was a legal cause of the Plaintiffs injuries in any way. The hospital staff had received no warnings or instructions to prevent the Plaintiff from visiting her husband. Her injuries were not the result of any lack of supervision by the hospital. This is not a case where the inmate had escaped and caused injury to third persons, as is set forth in the case in 70 ALR 2nd, 366. I am unable to understand how the hospital breached any duty to the Plaintiff. In short, although I have reviewed the case and listened attentively to counsel for the Plaintiff, this court is unable to find any legal basis for assessing liability against the Defendant hospital for injuries suffered by the Plaintiff resulting from battery performed on her by her husband.”

      .The dissent notes an apparent inconsistency in our holdings that the evidence was sufficient to present a jury question and that the trial court was empowered to grant a new trial when, in its view, the verdict was against the manifest weight of the evidence. The distinction between the weight and sufficiency concepts, and the separate, but consistent, function of each, has recently received full discussion in a different context in Tibbs v. State, 397 So.2d 1120 (Fla.1981).

      . Which reads as follows:
      “The plaintiff Cordelia Wallace appeals a final summary judgment in a negligence action in favor of the defendant P. L. Dodge Memorial Hospital and its insurer Appalachian Insurance Company and contends that the entry of such judgment was error because inter alia there was a genuine issue of material fact as to the alleged negligence of the defendant hospital in failing to provide adequate attendants to protect the plaintiff as an invitee of the hospital against a violent attack by one of its mental patients. We agree and reverse the judgment appealed from for further proceedings solely as to that issue. No other genuine issue of material fact exists in this case. Holl v. Talcott, 191 So.2d 40 (Fla.1966); North Broward Hospital District v. Adams, 143 So.2d 355, 356 (Fla.2d DCA 1962).”

      . Only Schempp v. Schempp, supra, involved a summary judgment and, on its facts, it is not analogous to the case sub judice.


source: Caselaw Access Project

author: McCORD, Judge.

license: Public Domain

text:
    FLORIDA ROCK AND TANK LINES, INC. and Florida Rock Industries, Inc., Appellants, v. The CONTINENTAL INSURANCE COMPANY, Appellee.
    No. SS-510.
    District Court of Appeal of Florida, First District.
    June 3, 1981.
    B. Thomas Whitefield of Ulmer, Murchison, Ashby & Ball, Jacksonville, for appellants.
    Carle A. Felton, Jr. of Boyd, Jenerette, Leemis & Staas, P. A., Jacksonville, for appellee.
   McCORD, Judge.

Florida Rock and Tank Lines, Inc. (formerly Diamond Sand and Stone) and Florida Rock Industries, Inc., appeal from an order of the trial court striking their claim for attorney’s fees, made pursuant to § 627.428(1), Florida Statutes (1979). We reverse.

Appellants were defendants in an indemnity action brought by their insurer, Continental. In its complaint, Continental asserted, inter alia, that under the terms of the insurance policy and/or an endorsement which allegedly became a part thereof, appellants were required to reimburse Continental for monies it expended in the defense and settlement of certain claims arising out of an accident involving one of appellants’ trucks.

Appellants defended by denying the pertinent allegations of the complaint, including a specific denial that the alleged endorsement ever became part of the contract; and by affirmatively asserting, inter alia, that by its conduct, Continental was estopped from claiming and/or had waived any right to reimbursement, that Continental was collaterally estopped by virtue of prior litigation, etc.

Pursuant to a jury verdict, the trial court entered final judgment in favor of appellants, reserving jurisdiction for purposes of determining appellants’ right to recover attorney’s fees. Continental thereafter filed a Motion to Strike the claim for attorney’s fees, which motion was granted by the trial court.

In refusing to award appellants’ attorney’s fees, the trial court stated:

Under a strict construction of said statute [Section 627.428] it appears that attorneys fees should be awardable to an insured only in those cases where the insured is the “prosecuting” party and a judgment has been entered in favor of the insured and against the insurance company on litigation instituted by the assured. The Court further finds and rules that the intent of the statute providing for attorneys fees is to safeguard the insured and to penalize the insurance company when the insurance company has wrongfully denied coverage or has wrongfully refused to defend under the provisions of the insurance contract, thus placing the insured in a precarious position. In this case the litigation was instituted by the insurance company; no coverage question was presented; the insurance company had defended claims asserted by third party claimants against the insured in prior litigation and had not denied coverage; and this suit was solely concerned with the insurance company’s claim for reimbursement under the provisions of an endorsement which allegedly was issued and became part of the policy of insurance.

Contrary to the trial court’s findings, the phrase “prosecuting the suit” contained in the statute, does not require that the insured have instituted the suit against the insurance company. Peninsular Life Insurance Co. v. Howard, 72 So.2d 389 (Fla.1954); Old Republic Insurance Co. v. Monsees, 188 So.2d 893 (Fla. 4th DCA 1966). The statute is likewise applicable when the insured successfully defends an action brought by the insurance company. Roberts v. Carter, 350 So.2d 78, 79 n.6 (Fla.1977); Monsees, supra.

Further, the fact that Continental had defended the claims and had not denied coverage does not preclude application of the statute. James Furniture Manufacturing Co., Inc. v. Maryland Casualty Company, 114 So.2d 722 (Fla. 3rd DCA 1959), disapproved on other grounds, Roberts v. Carter, 350 So.2d 78, 79 n.6 (Fla.1977). Finally, the finding that no “coverage question” was presented is not determinative of the issue of attorney’s fees. The purpose of the statute is to discourage the “contesting” of insurance policies and to reimburse successful insureds reasonably for their outlays for attorney’s fees, when they are compelled to defend or sue to enforce their contracts. Wilder v. Wright, 269 So.2d 434, 436 (Fla.2d DCA 1972), quoted with approval on affirmance, 278 So.2d 1, 3 (Fla.1973). Here, a bona fide controversy existed as to the rights and obligations of the parties under the contract of insurance. The statute does not require that the contested issue be that of coverage. Gulf Life Insurance Co. v. Urquiaga, 251 So.2d 904 (Fla.2d DCA 1971). See also Travelers Insurance Company v. Horton, 366 So.2d 1204 (Fla. 3rd DCA 1979).

Continental brought the present action alleging that under a contract of insurance executed by the insurer, it was entitled to reimbursement. Appellants successfully defended this suit and received a judgment against the insurer and in favor of the insureds. Thus, all the requirements of § 627.428 have been met and appellants are entitled to a reasonable sum as attorney’s fees.

The order of the trial court striking appellants’ claim for attorney’s fees is REVERSED and this cause is REMANDED to the trial court with directions to enter an order in accordance herewith.

SHIVERS and JOANOS, JJ., concur.

      . 627.428 Attorney fee.—
      (1) Upon the rendition of a judgment or decree by any of the courts of this state against an insurer and in favor of an insured or the named beneficiary under a policy or contract executed by the insurer, the trial court, or, in the event of an appeal in which the insured or beneficiary prevails, the appellate court, shall adjudge or decree against the insurer and in favor of the insured or beneficiary a reasonable sum as fees or compensation for the insured’s or beneficiary’s attorney prosecuting the suit in which the recovery is had.


author: PER CURIAM.

text:
    Ellery Dean EDWARDS and Teddy Dean Smith, Appellants, v. STATE of Florida, Appellee.
    No. VV-166.
    District Court of Appeal of Florida, First District.
    June 3, 1981.
    Michael Allen, Public Defender, and Margaret Good and Louis Carres, Asst. Public Defenders, for appellants.

      Jim Smith, Atty. Gen., and Raymond L. Marky, Asst. Atty. Gen., for appellee.
   PER CURIAM.

Edwards and Smith appeal the sentences entered against them following their plea of guilty to charges of attempted armed robbery and false imprisonment. Edwards also appeals the sentence entered against him following his plea of guilty to the additional charge of aggravated assault with a firearm. They contend the trial court erred in failing to sentence them as youthful offenders under Section 958.04, Florida Statutes (1979). We affirm.

Smith was adjudged guilty of attempted armed robbery and unlawful imprisonment simultaneously and then sentenced. Similarly, Edwards was adjudged guilty of attempted armed robbery, false imprisonment, and aggravated assault with a firearm simultaneously and then sentenced. We find this case indistinguishable from this court’s prior decision in Goodson v. State, 392 So.2d 1335 (Fla. 1st DCA 1980), which held that a defendant did not qualify for treatment under the mandatory provisions of the Youthful Offender Act because he had been “previously found guilty of a felony” under the provisions of Section 958.-04(2)(a), since he had been adjudicated guilty of two robberies based on previous pleas of guilty before he was sentenced on both charges. Therefore at the time of sentencing, the defendant had been found guilty of a felony other than the felony qualifying him under the Act. The same reasoning applies here and the appellants’ sentences are accordingly affirmed.

However, since we view this opinion as one passing upon a question of great public importance, Fla.R.App.P. Rule 9.030 (a)(2)(a)(v), we join Goodson, Barnhill v. State, 393 So.2d 557 (Fla. 4th DCA 1981), and Abram v. State (Fla. 1st DCA 1981), 1981 FLW 879, No. TT-193, opinion April 14, 1981, by certifying the following question to the Supreme Court of Florida:

Is a person excluded from mandatory classification under Section 958.04(2)(a), Florida Statutes (1979) when prior to sentencing the offender has been found guilty of a qualifying felony under the Act and has simultaneously been found guilty of other felonies?

ROBERT P. SMITH, Jr., LARRY G. SMITH and JOANOS, JJ., concur.


author: Robert P. SMITH, Jr., Judge.

text:
    Charles McGIBIANY, Appellant, v. STATE of Florida, Appellee.
    No. WW-122.
    District Court of Appeal of Florida, First District.
    June 3, 1981.

      Michael E. Allen, Public Defender, and Nancy A. Daniels, Asst. Public Defender, Tallahassee, for appellant.
    » Jim Smith, Atty. Gen., and David P. Gauldin, Asst. Atty. Gen., Tallahassee, for appellee.
   Robert P. SMITH, Jr., Judge.

McGibiany appeals from a judgment of conviction for possession of cocaine and marijuana, complaining of the trial court’s denial of his motion to suppress as evidence the contraband taken from his hotel room by an off-duty policeman accompanying the hotel’s assistant manager. The warrantless search violated the Fourth Amendment to the United States Constitution and Article I, Section 12 of the Florida Constitution, and we therefore reverse.

McGibiany and his companion checked into the Tallahassee Hilton and were assigned room 715, a single room, until a double room should become available later in the day. They unpacked in room 715 and departed. Later, a maid reported the room occupied but not properly assigned to a guest — that irregularity being due to the room clerk’s failure to record the authorized temporary use of room 715. The assistant manager, suspecting a fraudulent occupancy, decided to investigate and asked Sgt. Dozier to accompany her for protection. The manager unlocked and opened the door to room 715, found no one apparently in the room, and entered to investigate the identity of the absent occupant. Sgt. Dozier followed. Across the room Sgt. Dozier found drug paraphernalia and from the dresser top he took a vial of white powder, which he previously saw from the doorway but gave no significance, that proved to be cocaine.

The State does not dispute that Sgt. Dozier was acting as a law enforcement officer, though off-duty and employed by the hotel as a security guard, at the time of this search. See State v. Williams, 297 So.2d 52 (Fla. 2d DCA 1974). In Sheff v. State, 301 So.2d 13 (Fla. 1st DCA 1974), aff’d, 329 So.2d 270 (Fla.1976), we held that a motel manager has no power by consent or invitation to waive a guest’s Fourth Amendment rights of privacy against unreasonable warrantless searches. Because a law enforcement officer accompanied the manager and participated in the search, all constitutional restrictions on warrantless, searches apply. M. J. v. State, 399 So.2d 996 (Fla. 1st DCA), and cases cited.

Sheff controls this case. While it may be assumed that the manager had a right to enter room 715 for the purposes indicated, and that Sgt. Dozier had a right to stand in the doorway, viewing all that could be observed, until it was evident that no occupant threatened harm to the manager, Sgt. Dozier’s lawful power ended at the threshold. Nothing he saw from the doorway gave Sgt. Dozier probable cause to believe a felony had been or was being committed, or that the room contained illegal drugs. His entry and search of the room were unreasonable by constitutional standards.

The judgment of conviction is REVERSED.

SMITH, L., and JOANOS, JJ., concur.


text:
    CHARLES STEWART AGENCY, INC., et al., Appellants, v. Molly Lee DOISY, Appellee.
    Nos. ZZ-51, XX-85.
    District Court of Appeal of Florida, First District.
    June 3, 1981.
    Toby S. Monaco of Dell, Graham, Willcox, Barber, Ryals, Henderson & Monaco, P. A., Gainesville, for appellants.
    L. Edward McClelland, Jr., of Pattillo, MacKay & McKeever, P. A., Ocala, for ap-pellee.
   PER CURIAM.

These consolidated appeals arise from the same cause. The first is an appeal by the defendant from a final judgment entered pursuant to a jury verdict, and the second is from an interlocutory post-judgment order allowing an attorney’s fee to the plaintiff. Although we find no reversible error is shown upon the appeal from the final judgment, we reverse the order allowing an attorney’s fee to the plaintiff for the prosecution of the cause.

The plaintiff recovered the final judgment first appealed upon a complaint that the defendant, an insurance agency, represented to her that she had fire insurance coverage upon her residence when in fact such coverage had not been obtained and that as a result, she suffered an uncompensated loss. Cf. Poliakoff v. National Emblem Insurance Company, 249 So.2d 477 (Fla. 3d DCA 1971), cert. denied, 254 So.2d 790 (Fla.1971). The trial judge allowed an attorney’s fee to the plaintiff upon the theory that an attorney’s fee is allowable in cases of a fraudulent representation regarding the procurement of insurance coverage. We find no case that supports such an allowance. The often stated rule is that attorney’s fees for the prosecution of an action may be allowed only: (1) where authorized by contract, (2) when authorized by statute, or (3) where equity allows attorney’s fees from a fund or estate which has been benefited by the rendering of the legal services. See Hampton v. Fairchild-Florida Construction Company, 341 So.2d 759, 761 (Fla.1976). Clearly, these exceptions are inapplicable to this case. Furthermore, courts specifically addressing the question of whether attorney’s fees may be awarded in a fraud action have rejected the proposition that fraud actions constitute an exception to the above stated rule. Martin v. Paskow, 339 So.2d 266 (Fla. 3d DCA 1976), cert. denied, 348 So.2d 951 (Fla.1977); Weisenberg v. Carlton, 233 So.2d 659 (Fla. 2d DCA 1970), cert. denied, 240 So.2d 643 (Fla.1970). Furthermore, this case is distinguishable from other cases allowing the recovery of attorney’s fees incurred in a separate action as an element of damages. See Sheridan v. Greenburg, 391 So.2d 234, 236-238 (Fla. 3d DCA 1980) and cases cited therein. Here, the attorney’s fees awarded were incurred between the parties only in the instant law suit.

Accordingly, the judgment is affirmed and the order allowing an attorney’s fee to the plaintiff is reversed.

Affirmed in part, reversed in part.

ERVIN, J., and LILES, WOODIE A. (Retired), and PEARSON, TILLMAN (Retired), Associate Judges, concur.


text:
    James T. MARTIN, Appellant, v. STATE of Florida, Appellee.
    No. 79-161.
    District Court of Appeal of Florida, Fifth District.
    June 3, 1981.
    Richard L. Jorandby, Public Defender, and Tatjana Ostapoff, Chief of Appellate Div., West Palm Beach, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Phillip D. Havens, Asst. Atty. Gen., Dayto-na Beach, for appellee.
   PER CURIAM.

Martin appeals an order revoking his probation. The grounds for revocation were that he participated in a burglary and was convicted of the crime in Georgia, and that he failed to report to his probation officer within seventy-two (72) hours of being released from prison. Martin pled not guilty to the probation violation charges.

At a hearing held on May 21, 1979, the trial judge correctly ruled that the documentary and hearsay evidence presented to establish that Martin was the person who had been convicted of burglary in Georgia was insufficient. Rathburn v. State, 353 So.2d 902 (Fla. 4th DCA 1977); Combs v. State, 351 So.2d 1103 (Fla. 4th DCA 1977). He continued the hearing so the State could provide prima facie proof of identity. Several months later the trial judge revoked Martin’s probation on the mistaken belief that the first hearing had been completed. We reverse the order revoking. probation and remand for a new hearing.

REVERSED and REMANDED.

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


author: DAUKSCH, Chief Judge.

text:
    FOREMOST INSURANCE COMPANY, etc., Appellant, v. William H. MEDDERS et ux., Appellees. FLORIDA FARM BUREAU MUTUAL INSURANCE COMPANY, etc., Appellant, v. William H. MEDDERS et ux., Appellees.
    Nos. 79-408, 79-418.
    District Court of Appeal of Florida, Fifth District.
    June 3, 1981.

      William A. Parsons of Gosney, Cameron, Parsons & Marriott, P. A., Daytona Beach, for appellant Foremost Ins. Co.
    Robert Elton of Smalbein, Eubank, Johnson, Rosier & Bussey, P. A., Daytona Beach, for appellant Florida Farm Bureau Mut. Ins. Co.
    John R. Godbee, Jr. of Coble, McKinnon, Rothert, Bohner, Barkin & Godbee, P. A., Daytona Beach, for appellees.
   DAUKSCH, Chief Judge.

This is an appeal from a judgment awarding plaintiffs money damages from two insurance companies under the provisions of the valued policy law. Sec. 627.702, Fla.Stat. (1977). We find that the trial court incorrectly found plaintiffs’ mobile home to be real property under the provisions of this law and reverse.

Plaintiffs’ mobile home was destroyed by fire on August 11,1978. At the time of this loss, it was insured under two policies. Plaintiffs first obtained insurance coverage for actual cash value from Foremost Insurance Company when they bought their mobile home. Approximately four months later, they bought a second insurance policy for the same mobile home from Florida Farm Bureau Mutual Insurance Company with a cash value not to exceed $30,000.00. Both policies had other insurance clauses for lesser exposure if other insurance existed.

After the fire loss plaintiffs sued both insurance companies for the full coverage under each policy. After a non-jury trial the court found section 627.702, Florida Statutes (1977), to be controlling; the mobile home was real property; the other insurance clauses contained within the insurance policies were invalid because they were contrary to this statute; and plaintiffs were entitled to recover the full amount of insurance coverage provided by each policy for the loss of their mobile home.

Section 627.702, Florida Statutes (1977), stated that the valued policy law applied to buildings and structures. However, this statute specifically provided in subsection (4) that it did “not apply as to personal property or any interest therein.” Although this statute does not expressly state whether mobile homes are real or personal property, as will be discussed, subsequent legislative changes and rules of statutory construction lead us to conclude that the 1977 law considered mobile homes to be personal property. Thus they were exempted from the purview of section 627.702, Florida Statutes (1977), by reason of subsection (4).

At the time of plaintiffs’ loss, section 320.01, Florida Statutes (1977), defined “mobile home” as any type of trailer or vehicle body without independent motive power designed for travel or housing. This definition was revised in 1978 to mean a transportable structure designed to be used as a dwelling. This change suggests that the Legislature was reclassifying a mobile home from personal property to real property.

This new definition is important for our consideration of the valued policy law because the 1979 legislative amendment to section 627.702 refers to this new definition of mobile home. Ch. 79-237, § 1, Laws of Fla. Subsection (1) was amended from only applying to total losses of “any building or structure” to apply to losses of “any building or structure or mobile home as defined in s. 320.01(2) ....” Sec. 627.702(1), Fla. Stat. (1979). (Emphasis added). The use of the disjunctive word “or” rather than a conjunctive connector suggests that the words “building or structure’* did not include mobile homes. See Telophase Soc. of Fla., Inc. v. State Bd. of Funeral Directors & Embalmers, 334 So.2d 563 (Fla.1976).

This same legislative amendment added language to except mobile homes from the personal property exclusion:

(4) This section shall not apply as to personal property or any interest therein, except with respect to mobile homes as defined in s. 320.01(2) ....

Ch. 79-237, § 1, Laws of Fla. In addition, these changes were accompanied by considerable new language concerning mobile homes.

In order to give meaning to all of these changes and all of the parts of section 627.702, it must be concluded that mobile homes were considered to be personal property under the 1977 valued policy law. Since personal property was excluded from the provisions of this act, the trial court erred in finding the other insurance clauses to be contrary to section 627.702, Florida Statutes (1977). These clauses are valid and enable these insurance companies to apportion the loss.

The judgment is reversed and this cause remanded to the trial court for proper assessment of damages.

REVERSED AND REMANDED.

SHARP and COWART, JJ., concur.

      . Ch. 78-221, § 1, Laws of Fla.

      . “[W]hen a statute is amended, it is presumed that the legislature intended it to have a meaning different from that accorded to it before the amendment.” Reino v. State, 352 So.2d 853, 861 (Fla.1977).

      . “A statute should be construed so as to give effect to each and all of its provisions.” Cliento v. State, 377 So.2d 663, 666 (Fla.1979). See also State v. Rodriquez, 365 So.2d 157 (Fla.1978).


author: OTT, Judge.

text:
    B. F. SAUL, II, and Garland J. Bloom, Jr., as Trustees of the B. F. Saul Real Estate Investment Trust, Appellants, v. Harry BASSE; Donald J. Delbene and Virginia Delbene, his wife; Earl M. Zimmerman and Anna Mae Zimmerman, his wife; Abert S. Davis and May Davis, his wife; W. David Corbett; Ben Kassen and Lillian Kassen, his wife; Max H. Baltz and Florence Baltz, his wife; Maurice Herrmann and Rebecca Herrmann, his wife; Grace Von Losberg; Marjorie L. Loeb a/k/a Marjorie L. Scheutz; Anacelto D. Giachetti; Donald Nash and Margaret Nash, his wife; Sidney Bank and Judith Bank, his wife; Raymond S. Short and Maude F. Short, his wife; Muriel T. Ericson; Leland E. Juhl and Alice Juhl, husband and wife; Ann F. Jones; Aubrey H. Russell and Faye V. Russell, husband and wife; Betty Jane Milligan; Lester Saphier; David M. Jordan; Gary W. Moehle; and Robert Schlutz and Marilyn Schlutz, Appellees.
    No. 80-438.
    District Court of Appeal of Florida, Second District.
    June 3, 1981.

      Erik C. Larsen of O’Neill, Dyer, Bogner & Larsen, P.A., Orlando, and Leslie A. Nicholson, Jr., and Robert M. Gordon, of Shaw, Pittman, Potts & Trowbridge, Washington, D.C., for appellants.
    Robert P. Rosin of Rosin, Abel, Band, Brown & Russell, Sarasota, for appellees.
   OTT, Judge.

Following entry of final judgment in this declaratory relief action, the trial court ordered appellants to pay a fee to appellees’ attorney. We reverse that order.

The original developer of Dolphin Towers, a Sarasota condominium complex, retained title to the recreation areas, which were then leased to the association of condominium owners for 99 years. By a series of assignments, appellants succeeded to the interest of the developer. Appellants also held a mortgage on the entire complex, securing the loan for construction. They foreclosed that mortgage against everyone, including the association of condominium owners and excluding only the individual unit owners. Appellants purchased the property at the foreclosure sale “free and clear of all liens, claims, or interest.”

Appellants then attempted to enforce the 99-year lease of the recreation areas, but the unit owners refused to pay rent and brought this action seeking a declaration that the foreclosure sale terminated the lease. During the pendency of the action the trial court ruled that the “prevailing party” would be entitled to an attorney’s fee under section 718.303, Florida Statutes.

In 1979 a final judgment was entered in favor of appellees, declaring that the 99-year lease had been terminated by the foreclosure sale, and further providing that ap-pellees were entitled to attorneys’ fees, with the court reserving jurisdiction to set the amount of the fee. Appellants appealed that judgment to this court, but voluntarily dismissed it. Saul v. Basse, 377 So.2d 179 (Fla. 2d DCA 1979). Subsequently, the trial court held a hearing and entered a “Supplemental Final Judgment” awarding appellees’ attorney a fee of $22,800.

The award of a fee was error because (1) this lawsuit had nothing whatever to do with the litigation addressed by section 718.303, namely actions between unit owners and/or their condominium associations for breach of the statutory or contractual provisions governing such associations, (2) no other law, and no contract between the parties, permits the assessment of such a fee, and (3) in the absence of statutory or contractual authority, parties to litigation must pay their own attorneys’ fees. Fred Howland, Inc. v. Gore, 152 Fla. 781, 13 So.2d 303, 309 (1943).

Although never argued to the trial court, appellees now assert that the award was proper because appellants’ cross-complaint was for rent due under the lease, which contained a provision for attorneys’ fees for appellants had they prevailed. Therefore argue appellees, a fee for their own attorney for successfully resisting the cross-complaint is authorized by section 718.125, Florida Statutes. It’s a bit late for appellees to advance such an argument, but in any event it has no merit because section 718.125, enacted in 1978, could not operate to alter the obligations of the 1974 lease involved here. Commodore Plaza at Century 21 Condominium Association v. Cohen, 378 So.2d 307, 309 (Fla. 3d DCA 1980).

Our conclusion that the award of fees was error is not completely dispositive of this appeal. Appellees contend that appellants waived that error when they dismissed their appeal from the final judgment, which had established appellees’ entitlement to the fee and reserved for adjudication only the amount to be awarded. The flaw in that reasoning is that it disregards well established precedent.

Whether a judgment is final or merely interlocutory is not determined by its title. Nowlin v. Pickren, 131 So.2d 894, 895 (Fla. 2d DCA 1961). An award of attorneys’ fees may be made after entry of a judgment finally determining the merits of a controversy, and that, award is sufficiently substantive, per se, to support an independent appeal not related to the final judgment previously rendered. Department of Citrus v. Griffin, 332 So.2d 54, 57 (Fla. 2d DCA 1976). Here, the question is whether the final judgment on the merits of the case was also a final adjudication of appellants’ liability for a fee for appellees’ attorney. Generally, if a court reserves jurisdiction to make further adjudications, the judgment is only interlocutory. Olin’s, Inc. v. Avis Rental Car System, 100 So.2d 825, 826 (Fla. 3d DCA 1958). We hold that the final judgment entered in 1979 was only interlocutory insofar as it concerned attorneys’ fees.

The question remains whether the interlocutory order regarding fees was ap-pealable under rule 9.130(a)(3)(C)(iv), Rules of Appellate Procedure (1977), since it purports to determine liability for the fee, and is in favor of appellees. We need not answer that question because in any event an appeal from a final order calls up for review all necessary interlocutory steps leading to that final order, whether they were separately appealable or not. Auto-Owners Insurance Co. v. Hillsborough County Aviation Authority, 153 So.2d 722, 724 (Fla.1963). In other words, failure to utilize the right to take an interlocutory appeal does not restrict the scope of appellate review when the final order is appealed. Rule 9.130(g), Fla.R.App.P. (1977).

If appellants had prosecuted their previous appeal to a decision on the merits, it is unarguable that they would not be entitled to a second appeal of any portion of that judgment, whether final or interlocutory. In that event, the scope of any appeal from the subsequent award of a specific fee would necessarily be restricted to questioning the reasonableness of the fee or the propriety of the proceedings taken in connection with setting it.

But here, as we have noted, the first appeal was dismissed, thereby precluding an adjudication on the merits. In legal effect, it was just as though the appeal had never been taken. Upon the dismissal those portions of the judgment which were final in nature became final; those that were interlocutory remained interlocutory, subject to review on the appeal from the subsequent monetary award.

We conclude that the present appeal was timely and, for the reasons expressed herein, the order granting the fee to appellees’ attorney is REVERSED.

HOBSON, Acting C. J., and DANAHY, J., concur.

      . 718.303 Obligations of owners.
      (1) Each unit owner and each association shall be governed by, and shall comply with the provisions of, this chapter, the declaration, the documents creating the association, and the association bylaws. Actions for damages or for injunctive relief, or both, for failure to comply with these provisions may be brought by the association or by a unit owner against:
      (a)The association.
      (b) A unit owner.
      (c) Directors designated by the developer, for actions taken by them prior to the time control of the association is assumed by unit owners other than the developer.
      (d) Any director who willfully and knowingly fails to comply with these provisions. The prevailing party is entitled to recover reasonable attorney’s fees. This relief does not exclude other remedies provided by law.


author: COWART, Judge.

text:
    Frank Thomas MEINTZER, Appellant, v. STATE of Florida, Appellee.
    Nos. 79-201, 79-202.
    District Court of Appeal of Florida, Fifth District.
    June 10, 1981.

      Richard L. Jorandby, Public Defender and Charles D. Peters, Asst. Public Defender, West Palm Beach, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, Phillip D. Havens and James D. Crock, Asst. Attys. Gen., Daytona Beach, for appellee.
   COWART, Judge.

Appellant was placed on probation for two offenses for a term of five years with the condition that he serve 51 weeks in the county jail. Over a year later his probation in this case was revoked as violated and he was sentenced to four years in prison “with credit for time served since August 17, 1979, only.” Apparently appellant was in confinement on the probation violation charge after the August 17, 1979, date. This appeal challenges the sufficiency of the factual basis for the revocation of probation and claims that appellant was denied credit against his prison sentence for the 51 weeks spent in jail as a condition of his probation.

We find there is substantial competent evidence supporting the trial court’s finding that appellant violated one or more conditions of his probation and the revocation of his probation is affirmed.

Section 921.161(1), Florida Statutes (1979), requires that the court imposing a sentence allow a defendant-credit for all of the time he spent in the county jail before sentence. If, as here, a defendant is first put on probation with the condition that he serve certain time in the county jail and he serves that time and later violates his probation and is then sentenced to prison he is entitled to credit against his prison sentence for the time served in the county jail as a condition of probation. State v. Jones, 327 So.2d 18 (Fla.1976); Hutchinson v. State, 360 So.2d 1160 (Fla. 1st DCA 1978). Perhaps the trial court gave appellant credit for actual jail time served on the sentence on the other separate and distinct conviction. Or perhaps in this case the trial court in effect gave appellant credit for the 51 weeks of jail time by imposition of a four year prison sentence rather than the maximum fifteen years authorized by section 775.082(3)(c), Florida Statutes (1979), for a violation of section 893.13(l)(a)l, Florida Statutes (1979), the second degree felony to which appellant originally pled guilty. However, credit cannot be given in this manner, see Hernandez v. State, 396 So.2d 809 (Fla. 5th DCA 1981), because it causes a problem when, as here, an appellant contends that he did not receive the credit to which he is entitled under the sentencing statute and we cannot determine from the record before us whether his contention is correct or not. Section 921.161(1), Florida Statutes (1979), specifies that “the credit must be for a specified period of time and shall be provided for in the sentence.” In order for an appellate court to determine, when the issue is raised, that a defendant has been allowed credit as required by this statute it is necessary that the sentence show on its face the specified period of time credited. It would be helpful to the trial bench if all sentencing forms specifically provided a place for the insertion of this credit. Another problem is that the determination of credit requires a fact finding as to the actual confinement time in the county jail on the particular charge subject to the sentence. For this reason applications for the correction of sentences to show credit for previous jail time served should be initiated under Florida Rule of Criminal Procedure 3.850 so the trial court can make the necessary factual determination and sentence correction without the necessity of an appeal. In this case while affirming the revocation of probation we remand and request the trial court to make a determination as to whether appellant was in fact incarcerated in jail under the probation condition relating to this case, and, if so, to calculate the credit and amend the sentence to comply with the statute. The defendant need not be present for this nunc pro tunc correction.

AFFIRMED with directions to amend the form of the sentence.

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


author:
      MARCUS, Justice.
     DENNIS, Justice,

text:
    STATE of Louisiana v. Rick MENA. STATE of Louisiana v. Robert THRIFT. STATE of Louisiana v. Jennifer KNIGHT and Mary Cook.
    Nos. 80-K-1506, 80-K-2297 and 80-KA-2636.
    Supreme Court of Louisiana.
    March 2, 1981.
    Concurring Opinion April 14, 1981.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Harry F. Con-nick, Dist. Atty., Louise Korns, Asst. Dist. Atty., for plaintiff-relator in No. 80-K-1506, for plaintiff-respondent in No. 80-K-2297, and for plaintiff-appellee in No. 80-KA-2636.
    Patrick J. Fanning, Asst. Dist. Atty., for plaintiff-appellee, in No. 80-KA-2636.
    Frederick J. King, Jr., New Orleans, for defendant-respondent in No. 80-K-1506, defendant-relator in No. 80-K-2297 and defendant-appellant in No. 80-KA-2636.
   MARCUS, Justice.

Rick Mena was charged by bill of information with possession with intent to distribute cocaine in violation of La.R.S. 40:967. His motion to suppress was granted by the trial judge (Judge Frank A. Ma-rullo, Jr.). Upon the state’s application, we granted a writ under our supervisory jurisdiction to review the correctness of that ruling.

Robert Thrift was charged by bill of information with possession with intent to distribute marijuana in violation of La.R.S. 40:967. His motion to suppress was denied by the trial judge (Judge Bernard J. Ba-gert, Sr.). Upon Thrift’s application, we granted a writ under our supervisory jurisdiction to review the correctness of that ruling.

Jennifer Knight was charged by bill of information with possession of cocaine in violation of La.R.S. 40:967. In the same information, Mary Cook was charged with possession of marijuana in violation of La. R.S. 40:967. At arraignment, defendants entered pleas of not guilty. Their motion to suppress was denied by the trial judge (Judge Jerome M. Winsberg). Thereafter, defendants withdrew their former pleas of not guilty and entered pleas of guilty as charged expressly reserving their right to appeal the court’s denial of their pre-plea motion to suppress. Knight was sentenced to serve one year in the parish prison; the incarceration was suspended and Knight was placed on probation for one year. Cook was sentenced to serve six months in the parish prison; the incarceration was suspended and Cook was placed on probation for six months. On appeal to this court, defendants rely on one assignment of error, viz., the trial judge erred in denying their motion to suppress for reversal of their convictions and sentences.

We consolidated these cases for argument as each arises out of the same drug transaction and seizure of evidence pursuant to the same search warrant and contains a common issue: the sufficiency of the affidavit upon which the search warrant was issued.

The search warrant was issued to search the premises located at 3617 Delgado (upper part), New Orleans, Louisiana, for the purpose of seizing “all contraband controlled dangerous substances, more particularly cocaine, and all documents and instrumentalities related to its distribution.” The warrant was issued based upon facts recited in the affidavit by New Orleans Police Department narcotics officer Harry O’Neal and Jefferson Parish narcotics agent Alan Drumm. The affidavit was executed and the warrant issued on May 3,1980 following an undercover operation and stakeout involving Orleans and Jefferson narcotics agents. The property seized pursuant to execution of the warrant at 3617 Delgado included several clear plastic bags containing either white powder or vegetable matter and various instrumentalities related to the distribution of cocaine and marijuana. Mena was arrested prior to the securing of the warrant and the other defendants were arrested at 3617 Delgado following the search of the premises.

The affidavit generally recited the following facts to establish probable cause for issuance of the warrant:

1. At about 8:00 p. m. on May 3, 1980, an undercover Jefferson Parish narcotics agent met with Robert L. Woodard near the Fotomat at Lakeside Shopping Center to purchase one-fourth of an ounce of cocaine. Woodard informed the agent that he had to get the cocaine from “his connection” and told the agent to meet him at Pelican Bowling Lanes at 8:50. After making a phone call, Woodard left the shopping center in a silver BMW. He was followed by Jefferson Parish agents including affi-ant Drumm to 3617 Delgado where he was observed entering an upper floor apartment at about 8:20.

2. At about 8:40 p. m., Woodard exited the apartment accompanied by a white male later identified as Dick Mena. They entered Woodard’s BMW and proceeded directly to Pelican Bowling Lanes where they met with the undercover agent. When the agent came over to Woodard’s car, Mena showed the agent a clear plastic bag of white powder and asked him if he wanted to sample it. The agent responded that he wanted to do so in his car. Mena handed the bag to Woodard who exited his BMW and entered the agent’s car. Once the agent had possession of the suspected cocaine, he signaled the surveillance agents by tapping his brakes. The surveillance agents led by agent Drumm arrested Woodard, Mena and the undercover agent and seized the clear plastic bag of white powder. A field test of the powder indicated the presence of cocaine. Once clear of the arrest location, the undercover agent was separated from Woodard and Mena. He then informed affiant Drumm of the events of his undercover operation.

3. After being arrested and advised of his rights, Woodard told Officer Drumm that he wanted to help out and that “he was scoring his cocaine from Mena and that there was another occupant at Mena’s residence awaiting their return.” Officers from Orleans and Jefferson then proceeded to 3617 Delgado to secure the residence and prevent the occupants from destroying the contraband when Mena did not return. Upon arrival, the officers informed the occupants that they were under investigation for possession of narcotics. The occupants were then secured in the living room awaiting the officers’ return with the search warrant.

Constitutional provisions insure a person from unreasonable search and seizure of his house, papers and effects. No such search or seizure shall be made except upon warrant issued upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched and the persons or things to be seized. U.S.Const. Amend. IV; La.Const. art. 1, § 5. Con-formably, our Code of Criminal Procedure in art. 162 provides in pertinent part:

A search warrant may issue only upon probable cause established to the satisfaction of the judge, by the affidavit of a credible person, reciting facts establishing the cause for issuance of the warrant.

We have held that probable cause exists when the facts and circumstances within the affiant’s knowledge, and of which he has reasonably trustworthy information, are sufficient unto themselves to warrant a man of reasonable caution to believe that an offense has been committed. State v. Wickers, 392 So.2d 419 (La.1980); State v. Baker, 389 So.2d 1289 (La.1980); State v. Richards, 357 So.2d 1128 (La.1978). The judicial officer must be supplied with enough information to support an independent judgment that probable cause exists for the issuance of a warrant. Whitcley v. Warden, 401 U.S. 560, 91 S.Ct. 1031, 38 L.Ed.2d 306 (1972); State v. Wickers, supra; State v. Baker, supra; State v. Richards, supra.

In our opinion, the facts recited in the affidavit clearly provide enough information to support an independent judgment that probable cause existed for the issuance of the search warrant. An undercover agent seeking to purchase cocaine was told by Woodard that he had to get the cocaine from “his connection.” After making a phone call, Woodard was secretly followed by narcotics agents including affiant Drumm to 3617 Delgado where he was observed entering the upper floor apartment. Shortly thereafter, Woodard exited the apartment accompanied by Mena. The two entered Woodard’s car and drove directly to a predetermined place to meet with the undercover agent who was given a clear plastic bag containing white powder. A field test of the powder indicated the presence of cocaine. Given these facts from the undercover operation and surveillance, a man of reasonable caution would conclude that Woodard obtained his cocaine from Mena at 3617 Delgado.

Furthermore, this conclusion is buttressed by Woodard’s post-arrest statement that “he was scoring his cocaine from Mena and that there was another occupant at Mena’s residence awaiting their return.” Defendants contend that the affidavit is insufficient in that it contains no recitation that the informant Woodard has proven credible or reliable in the past. While the affidavit contains no averment that the informant had previously given correct information, such an averment of previous reliability is not necessary. In determining probable cause, the inquiry is whether the informant’s present information is truthful or reliable. United States v. Harris, 403 U.S. 573, 91 S.Ct. 2075, 29 L.Ed.2d 723 (1971). In the instant case, Woodard stated that he was scoring his cocaine from Mena. This admission was a declaration against penal interest because it supplied evidence against him of guilty knowledge, an essential element of the crime of the possession of a controlled dangerous substance. State v. Mena, 344 So.2d 357 (1976). Admissions of crime carry their own indicia of credibility sufficient at least to support a finding of probable cause to search. United States v. Harris, supra; State v. Welsh, 371 So.2d 1314 (La.1979); State v. Mena, supra.

Although the affidavit in the instant case does not contain any averment of firsthand information that cocaine would be found at 3617 Delgado, the fourth amendment does not make such information essential. All that is required is that the affidavit, interpreted in a commonsense and realistic manner, contain information which would warrant a person of reasonable caution to believe that the articles sought are located at the place to be searched. State v. Baker, supra; State v. Guidry, 388 So.2d 797 (La.1980). The undercover agent was told by Woodard that he had to get his cocaine from his connection. Agents then observed Woodard drive to 3617 Delgado. A short time later, Woodard was observed leaving the apartment at 3617 Delgado accompanied by Mena. The two drove straight to the meeting place with the undercover agent who was then shown the cocaine. After his arrest, Woodard told officers that “he was scoring his cocaine from Mena and that there was another occupant at Mena’s residence awaiting their return.” It was reasonable for the officers and the magistrate to infer that Woodard obtained his cocaine from Mena at 3617 Delgado and that Mena would store his illicit drugs at the location identified by Woodard to be Mena’s residence.

In discussing judicial review of warrants, the Court in United States v. Ventresca, 380 U.S. 102, 108, 85 S.Ct. 741, 745, 13 L.Ed.2d 684 (1965), stated:

[T]he Fourth Amendment’s commands, like all constitutional requirements, are practical and not abstract. If the teachings of the Court’s cases are to be followed and the constitutional policy served, affidavits for search warrants, such as the one involved here, must be tested and interpreted by magistrates and courts in a commonsense and realistic fashion. They are normally drafted by nonlawyers in the midst and haste of a criminal investigation. Technical requirements of elaborate specificity once exacted under common law pleadings have no proper place in this area. A grudging or negative attitude by reviewing courts toward warrants will tend to discourage police officers from submitting their evidence to a judicial officer before acting.

In State v. Paciera, 290 So.2d 681, 687 (La.1974), we stated:

As Spinelli observed, “in judging probable cause magistrates are not to be confined by niggardly limitations or by restrictions on the use of their common sense” and “their determination of probable cause should be paid great deference by reviewing courts.” 393 U.S. [at] 419, 89 S.Ct. [at] 590. Further, where the law enforcement officers have respected the constitutional mandate to secure a warrant before searching, “Although in a particular case it may not be easy to determine when an affidavit demonstrates the existence of probable cause, the resolution of doubtful or marginal eases in this area should be largely determined by the preference to be accorded to warrants.” Ventresca, at 380 U.S. 109, 85 S.Ct. [at] 746. See also Jones at 362 U.S. [at] 270, 80 S.Ct. [at] 735-736.

We are satisfied that the affidavit, taken as a whole, contains sufficient facts for a magistrate to reasonably determine that probable cause existed for issuance of the search warrant in the instant case.

DECREE

For the reasons assigned, in State v. Mena, No. 80-K-1506, the ruling of the trial court’s granting defendant’s motion to suppress is reversed and set aside and the case is remanded for further proceedings. In State v. Thrift, No. 80-K-2297, the trial court’s denial of the defendant’s motion to suppress is affirmed and the case is remanded for further proceedings. In State v. Knight and Cook, No. 80-KA-2636, defendants’ convictions and sentences are affirmed.

DENNIS, J., concurs with reasons.

DENNIS, Justice,

concurring.

I respectfully concur.

Although the case is not free from doubt, I ultimately concur in the majority’s decision. The affidavit establishes a strong probability that Mena and Woodard were dealers in illicit drugs. The inference that Mena had a store of drugs at his residence at the time of the arrest is not so easily made from the affidavit’s facts. However, when bolstered by the activities observed by the police officers and Woodard’s statement contrary to his penal interest, I believe that a minimally sufficient basis for belief that contraband was located there was established.

       Judges Grover L. Covington, Remy Chiasson and Elmo E. Lear of the Court of Appeal, First Circuit, participated in this decision as associate justices ad hoc, joined by Associate Justices Calogero, Marcus, Dennis and Blanche.

      . 390 So.2d 899 (La.1980).

      . 393 So.2d 726 (La.1980).

      . State v. Crosby, 338 So.2d 584 (La.1976).


author: GULOTTA, Justice ad hoc . DIXON, Chief Justice SCHOTT, Justice ad hoc BOUTALL, Justice ad hoc,

text:
    STATE of Louisiana v. Bennie WATKINS. STATE of Louisiana v. Benny J. MATTHEWS and Thomas Sutton, Material Witness.
    Nos. 80-K-2380, 81-K-0137.
    Supreme Court of Louisiana.
    April 6, 1981.

      William L. Brooks, Public Defender, Am-ite, for defendant-relator in No. 80-K-2380.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Duncan Kemp, Dist. Atty., Abbott J. Reeves, Bobby Strom-ile, Asst. Dist. Attys., for plaintiffs-respondents in No. 80-K-2380.
    S. Patrick Phillips, Chief Asst. Indigent Defender, for defendant-relator, in No. 81-K-0137.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Henry N. Brown, Dist. Atty., James M. Bullers, Asst. Dist. Atty., for plaintiffs-respondents in No. 81-K-0137.
   GULOTTA, Justice ad hoc .

In these consolidated cases, we are confronted with the sole issue whether a defendant who is ordered released forthwith because of a violation of the seventy-two-hour requirement of LSA-C.Cr.P. Art. 230.1 can thereafter be rearrested and required to post bond on the same charges. After their initial arrests, these defendants were not brought before a judge by local law enforcement officials within the seventy-two hours mandated by LSA-C.Cr.P. Art. 230.1(A).

These two cases arose out of similar factual circumstances. Benny Watkins was arrested by the Amite City Police Department and charged with second-degree murder on Saturday, October 4, 1980. On the following Wednesday, he was transferred to the Tangipahoa Parish Jail. On Friday, October 10, 1980, Watkins appeared before a judge who appointed counsel and set bail. At the time of Watkins’ initial appearance in court, his court-appointed counsel precipitated a hearing for Watkins’ immediate release because of failure of compliance with LSA-C.Cr.P. Art. 230.1. Following a brief hearing, the trial judge ordered Watkins’ release. The defendant was rearrested by Tangipahoa Parish authorities moments later, however, and was then immediately taken before the same judge who again appointed counsel and set bail.

In the second case, Benny J. Matthews was arrested and charged with aggravated arson. Thomas Sutton was booked as a material witness. These defendants were brought before a judge approximately one week after their arrest at which time counsel was appointed to represent them. In response to a petition for habeas corpus, a hearing was held and defendants were ordered released from custody. Shortly thereafter, however, new warrants for their arrests on the same charges were issued. Motions to quash the new warrants for Matthews and Sutton’s arrest were denied, as was the motion for release of Watkins.

This court granted certiorari in both cases, which have been consolidated for review.

It is Watkins’ contention that when he was rearrested on the same charge after his release had been ordered, the arresting authorities circumvented the clear mandate of LSA-C.Cr.P. Art. 230.1 as interpreted in State v. Chaney, 384 So.2d 442 (La.1980).

Matthews and Sutton claim the trial judge erred in refusing to quash warrants for their rearrest since they were charged with the same violations on which they had been ordered released approximately thirty minutes prior to the issuance of the new warrants. They reason that when the trial judge ordered their initial release his finding was analogous to a “no probable cause” conclusion after a preliminary hearing. According to these defendants, such a conclusion compels a result that they cannot be rearrested on the same charge, although they may be subsequently arraigned and tried for the same offense.

Before considering and disposing of the arguments raised, we note a significant dissimilarity between the Watkins case on the one hand and the Matthews and Sutton case on the other. In Matthews and Sutton’s case, warrants were issued for the rearrest of these defendants. In Watkins’ case, however, we fail to find any warrant for this defendant’s rearrest or any assertion that a warrant issued. Since we find no warrant in the Watkins record, this significant dissimilarity compels different results in the two . cases.

In State v. Chaney, supra, we stated that the express, unequivocal language of LSA-C.Cr.P. Art. 230.1 mandates a prisoner’s release forthwith where he has been incarcerated in excess of seventy-two hours without being brought before a judge for the purpose of appointment of counsel. The Chaney case was followed by State v. Wallace, 392 So.2d 410 (La.1980), where this court affirmed the trial court’s refusal to release a rearrested defendant who had been released earlier for failure of compliance with LSA-C.Cr.P. Art. 230.1.

In the Wallace case, defendant filed a motion for preliminary examination and following a hearing the judge found the existence of probable cause. In a subsequent habeas corpus hearing, Wallace was ordered released for failure of compliance with LSA-C.Cr.P. Art. 230.1. After release, Wallace was rearrested on the same charge and a second habeas corpus application was filed, seeking Wallace’s release from rearrest. This application was denied.

In the lead opinion in the Wallace case, Justice Lemmon pointed out there is no “absolute immunity” from rearrest after release under LSA-C.Cr.P. Art. 230.1(C). Although the code and statutes did not expressly address the issue of rearrest following release ordered under the authority of LSA-C.Cr.P. 230.1, LSA-C.Cr.P. Art. 367 provides that a person discharged from custody in a habeas corpus proceeding may be rearrested, “if a legal ground exists therefor.” The lead opinion in Wallace further points out that the defendant waived his 230.1 right to release after rearrest by provoking a preliminary examination resulting in a finding of probable cause. Although the concurring opinions in Wallace assigned different reasons, the one common thread recognized in the concurrences is that rearrest is dependent upon the existence of legal grounds therefor. See LSA-C.Cr.P. Art. 367.

The instant cases are different from Wallace in that no preliminary hearing was sought and the question of probable cause not passed upon by the trial judge. Watkins simply moved to quash the rearrest and Matthews and Sutton sought release by application for writ of habeas corpus. The question in our cases, therefore, revolves around a determination whether legal grounds existed for the rearrest of these defendants.

As hereinbefore pointed out, our search has failed to reveal the existence of a warrant for the rearrest of Watkins. Watkins was ordered released for failure of compliance with LSA-C.Cr.P. Art. 230.1, but was then simply rearrested without a warrant and without a determination of probable cause.

We further find no indication in the record that a warrantless rearrest was justified pursuant to LSA-C.Cr.P. Art. 213. Watkins’ rearrest was not a warrantless, on-the-street restraint of his liberty based on a peace officer’s reasonable belief Watkins had committed an offense. See LSA-C.Cr.P. Art. 213(3). It was not an arrest made under exigent circumstances where it was impossible to obtain a prior warrant. Indeed, there is no showing of any reason why the police could not have obtained a warrant prior to rearresting Watkins. Since no legal grounds existed for Watkins’ rearrest, it is readily ascertainable that the initial release order was circumvented to the extent that it was as if not rendered. The validity of the proceedings following Watkins’ rearrest is therefore questionable. See LSA-C.Cr.P. Art. 230.1(D) and Justice Marcus’ concurrence in Wallace. We conclude under these circumstances that the rearrest of Watkins was simply a “revolving door” procedure not contemplated by either the Codal provision or Wallace.

On the other hand, in Matthews and Sutton’s case warrants were issued for their rearrest. The issuance of these warrants by the judge is based upon a complaint that a crime had been committed. We find no compelling reasons why rearrest under these circumstances is proscribed. Because of the issuance of the warrants, legal ground existed for Matthews and Sutton’s rearrest. See LSA-C.Cr.P. Art. 367.

Accordingly, consistent with the foregoing, it is ordered that the judgment of the trial court in State v. Bennie Watkins, Jr. denying the request for release from rearrest be rescinded and set aside. Bennie Watkins, Jr. is ordered released from custody forthwith, without bail. Our judgment does not preclude Watkins’ arraignment and prosecution on the charge for which he was rearrested.

It is further ordered that the trial court’s judgment denying the motion to quash the warrants for the rearrests of Bennie J. Matthews and Thomas Sutton is affirmed.

DIXON, C. J., concurs in part and dissents in part with reasons.

CALOGERO, J., concurs in part and dissents in part for reasons to be assigned by DIXON, C. J.

DENNIS, J., concurs in the decree as to Watkins and dissents from the decision and opinion as to Matthews and Sutton.

BOUTALL, J., ad hoc, concurs in part and dissents in part with reasons.

SCHOTT, J., ad hoc, concurs in part and dissents in part with reasons.

DIXON, Chief Justice

(concurring and dissenting).

I agree with the disposition which the court makes of the Watkins matter, but respectfully dissent from the opinion in the case of Bennie J. Matthews.

If the new warrant had been issued upon new allegations or information, even if for the same offense, the Matthews case might differ from the Chaney case. The affidavits and warrants are not in the record, and we cannot tell what happened. As the record stands, the judge ordered Matthews released, and then, before Matthews could be “processed” out, the judge issued a new warrant on another affidavit, the contents of which do not appear.

If this is what happened, the plain meaning of the law has been disregarded again, without a finding that the law is unconstitutional or otherwise defective. Such an event is far more destructive of the rule of law than releasing an accused person until his trial.

The proper remedy, of course, is to fix Matthews’ trial immediately. If he should fail to appear, he will' have committed another offense, and will surely be caught and brought to justice.

SCHOTT, Justice ad hoc

(concurring in part and dissenting in part).

I concur in the affirmation of the trial court’s action in the case of Matthews and Sutton.

I dissent from the court’s order to release Watkins and would affirm the trial court’s denial of his request for release.

The re-arrest without warrant was authorized by C.Cr.P. Art. 213(3). I subscribe to Justice Blanche’s view in State v. Wallace, 392 So.2d at 415. The general public should not be penalized by having a defendant at large without bail because the police made a mistake in failing to watch the calendar more closely. This was hardly the intention of the legislature.

BOUTALL, Justice ad hoc,

concurring in part, dissenting in part.

I agree with the decision affirming the trial court in case No. 80-K-0137, State v. Bennie J. Matthews and Thomas Sutton.

I dissent from the reversal in case No. 80-K-2380, State v. Bennie Watkins. The defendant is not immune from rearrest and incarceration pending trial when a legal ground for arrest otherwise existed. I would adopt the concurring opinion of Justice Blanche in State v. Wallace, 392 So.2d 410, 415 (La.1980).

       Judges James C. Gulotta, John C. Boutall and Patrick M. Schott of the Court of Appeal, Fourth Circuit, participated in this decision as associate justices ad hoc, joined by Chief Justice John A. Dixon, Jr. and Associate Justices Pascal F. Calogero, Jr., James L. Dennis and Jack Crozier Watson.

      . LSA-C.Cr.P. Art. 230.1 reads as follows:
      “A. The sheriff having custody of an arrested person shall bring him promptly, and in any case within seventy-two hours from the time of the arrest before a judge for the purpose of appointment of counsel. Saturdays, Sundays, and legal holidays shall be excluded in computing the seventy-two hour period referred to herein.
      ts. At this appearance, if a defendant has the right to have the court appoint counsel to defend him, the court shall assign counsel to the defendant. The court may also, in its discretion, determine or review a prior determination of the amount of bail.
      C. If the arrested person is not brought before a judge in accordance with the provisions of Paragraph A of this Article, he shall be released forthwith.
      D. The failure of the sheriff to comply with the requirements herein shall have no effect whatsoever upon the validity of the proceedings thereafter against the defendant.”

      . The only reference to a warrant that we can find is in the State’s argument near the conclusion of the hearings to quash rearrest, where the district attorney made reference to the defendant’s rearrest “... on a Sheriffs Office charge and warrant for Second-Degree Murder.”
      In a supplemental brief Watkins points out that a warrant for his rearrest was issued on October 15, 1980, five days after he was rearrested.

      . Significant language in Wallace is
      “[1,2] We conclude that the availability of civil damages for detention beyond 72 hours without being brought before a judge is a sufficiently effective deterrent against intentional or inadvertent violations of art. 230.1A. Therefore, we decline to interpret art. 230.1C as entitling an arrested person to absolute immunity from rearrest and incarceration pending trial after release ordered pursuant to C.Cr.P. art. 230.1C. The Legislature arguably could provide such an immunity as a sanction for intentional or non-intentional violations of art. 230. l’s mandate, but the Legislature has not done so in express terms, and we decline to imply legislative intent for such a drastic action.”

      . LSA-C.Cr.P. Art. 213 reads as follows:
      “Art. 213. Arrest by officer without warrant; when lawful
      A peace officer may, without a warrant, arrest a person when:
      (1) The person to be arrested has committed an offense in his presence; and if the arrest is for a misdemeanor it must be made immediately or on close pursuit;
      (2) The person to be arrested has committed a felony, although not in the presence of the officer;
      (3) The peace officer has reasonable cause to believe that the person to be arrested has committed an offense, although not in the presence of the officer; or
      (4)The peace officer has received positive and reliable information that another peace officer holds a warrant for the arrest.
      A peace officer in close pursuit of a person to be arrested, who is making an arrest pursuant to this article may enter another jurisdiction in this state and make the arrest.”

      . A copy of a criminal warrant for Matthews’ rearrest, which is signed by the judge and based on a police officer’s sworn complaint, is attached to the writ application. In his motion to quash the warrant, Sutton states that a warrant was issued for his rearrest.

      . Watkins points out that subsequent to the filing of the application for supervisory writs, he has been charged with manslaughter. According to Watkins, he entered a plea of not guilty after arraignment and no trial date has been set.