author: ALDERMAN, Justice. SUNDBERG, Justice,

text:
    STATE of Florida, Petitioner, v. Marvin Leroy CUMBIE, Respondent.
    No. 56014.
    Supreme Court of Florida.
    Feb. 21, 1980.

      Jim Smith, Atty. Gen., and A. S. Johnston, Asst. Atty. Gen., Tallahassee, for petitioner.
    William T. Lassiter, Jr., Jacksonville, for respondent.
   ALDERMAN, Justice.

The decision of the District Court of Appeal, First District, in Cumbie v. State, 378 So.2d 1 (Fla. 1st DCA 1978), is before us for review by petition for writ of certiorari because it conflicts with Clark v. State, 363 So.2d 331 (Fla.1978), and Nevels v. State, 364 So.2d 517 (Fla. 1st DCA 1978), cert. denied, 372 So.2d 470 (Fla.1979). The issue in this case is: When the trial court sustains the defendant’s objection to an improper comment made by the prosecutor during closing argument and admonishes the jury to disregard the improper remark, and defendant does not move for mistrial until after the jury retires for deliberation, is the motion for mistrial timely under the “Contemporaneous Objection and Motion for Mistrial Rule” of Clark v. State and its progeny? We hold that for defendant’s motion for mistrial to be timely it should have been made at least by the end of the prosecutor’s closing argument.

Cumbie was convicted of assault with intent to commit murder in the first degree and assault with intent to commit rape. In the district court, Cumbie contended the prosecutor, during closing argument, made certain remarks which were so prejudicial as to deny him a fair trial. These challenged remarks are as follows: “The police officers had nothing against this man, they simply get paid to do a job. If he was innocent, they would certainly have cleared him, and if hé is guilty, then he has to pay for that, too.” The trial court sustained Cumbie’s objection to this remark, and admonished the jury to disregard it. The prosecutor then proceeded: “Now, we men often times can’t appreciate the assault on a body that a woman has to undergo when she is being raped or attempted to be raped, but I think we can think about it and kind of try to imagine, if you think of yourself in a similar situation when some . . . .” The trial court interrupted the prosecutor and admonished the jury to disregard the remark. The prosecutor then stated: “I say to you that people who are not here are also from the community and the State represents those people, the community itself, and that community asks of you justice in this case. They ask you to return a verdict that speaks the truth; a verdict in this case that represents justice.” Cumbie made no trial objection to this remark. After closing arguments and after the jurors had been instructed and placed in the jury room to begin their deliberation, defense counsel moved for mistrial on the basis of these allegedly inflammatory remarks by the prosecutor.

The district court reversed the conviction, concluding that the prosecutor’s first comment was unfair and denied Cumbie a fair trial; however, it expressly found that there was substantial evidence to support the jury’s verdict. It further held that the prosecutor’s “Golden Rule” argument was timely stopped by the trial court and the jury was properly admonished and that, since no objection was raised to his last remark, it was not properly reviewable on appeal.

The State contends that to preserve for appeal his objection to the prosecutor’s first remark, Cumbie must not only have objected to the remark but also must have immediately, after making the objection, moved for mistrial. Since Cumbie waited until after the jury was instructed and had retired for deliberation, the State argues that Cumbie’s motion for mistrial came too late to preserve his objection for appeal. Cumbie responds that his case is distinguishable from Clark because he did eventually make a motion for mistrial while no such motion was made in Clark.

Initially, we find that the improper prosecutorial comment in this case did not constitute fundamental error and could have been waived by Cumbie’s failure to object and to request a mistrial. We next proceed to determine whether Cumbie’s motion for mistrial was timely.

In Clark, we explained the justification for the contemporaneous objection rule and set out specific guidelines for its application. We held:

4. When there is an improper comment, the defendant, if he is offended, has the obligation to object and to request a mistrial. If the defendant does not want a mistrial, he may waive his objection. The trial may then proceed, but he may not again raise that objection as a point on appeal. If the defendant fails to object or if, after having objected, he does not ask for a mistrial, his silence will be considered an implied waiver. Cf. Spenkelink v. State, 350 So.2d 85 (Fla. 1977), cert. den. 434 U.S. 960, 98 S.Ct. 492, 54 L.Ed.2d 320 (1977). The important consideration is that the defendant retain primary control over the course to be followed in the event of such error. United States v. Dinitz, 424 U.S. 600, 96 S.Ct. 1075, 47 L.Ed.2d 267 (1976).
5. When an objection and motion for mistrial are made, the trial court must determine whether there was an improper comment on the defendant’s exercise of his right to remain silent. If the court finds that there was not, the objection should be overruled. In that event, the objection is preserved, and if the defendant is convicted, it may be raised as a point on appeal.
6. If the defendant, at the time the improper comment is made, does not move for mistrial, he cannot, after trial, in the event he is convicted, object for the first time on appeal. He will not be allowed to await the outcome of the trial with the expectation that, if he is found guilty, his conviction will be automatically reversed.

363 So.2d at 335.

In light of Clark, the district court, in Nevels v. State, held that by failing to move for mistrial at the time he voiced his objection to the prosecutor’s comment, defendant waived his objection to the allegedly improper comment. The district court explained:

We note from the record in this cause that when the comment of the prosecuting attorney complained of was made, the defendant objected to such comment, but he did not follow through with a motion for a mistrial. . . . After the trial proceeded for some time, the defendant’s counsel decided to make his motion for a mistrial based upon the officer’s comment as to the defendant having elected to remain silent when asked if he wished to make a statement.
We hold that when the improper comment was made, the defendant had the obligation at that time not only to object to the comment but to request a mistrial.

364 So.2d at 519.

Clark requires that a motion for mistrial be made “at the time the improper comment is made.” In the present case, to have met this requirement, we hold that it would have been sufficient if Cumbie had moved for mistrial at some point during closing argument or, at the latest, at the conclusion of the prosecutor’s closing argument. To avoid interruption in the continuity of the closing argument and more particularly to afford defendant an opportunity to evaluate the prejudicial nature of the objectionable comments in the context of the total closing argument, we do not impose a strict rule requiring that a motion for mistrial be made in the next breath following the objection to the remark. Here, Cumbie objected to the prosecutor’s comment, and the trial court sustained the objection and instructed the jury to disregard this remark. If Cumbie felt that the judge’s admonition was inadequate, he should have informed the judge of this fact at the time of his objection or, at the latest, at the end of the prosecutor’s closing argument. The judge then may have been able to give additional curative instructions which may have remedied Cumbie’s objection. The motion for mistrial in the present case, made after jury instructions and retirement of the jury for deliberation, however, came too late to preserve Cum-bie’s objection for appeal.

Additionally, even if we were to consider Cumbie’s motion for mistrial on the merits, we would find that it was properly denied and that reversal is not required. When Cumbie objected to the improper comment, the trial court sustained the objection and admonished the jury to disregard the remark. No further curative instruction was requested. From our evaluation of the entire record, we conclude that Cumbie received a fair trial and that the trial court did not abuse its discretion when it denied his motion for mistrial.

Accordingly, the decision of the district court, insofar as it reverses Cumbie’s judgment and sentence on the basis of the prosecutor’s remark, is quashed, and this cause is remanded with directions to reinstate the conviction and to remand the cause for appropriate sentence consistent with North Carolina v. Pearce, 395 U.S. 711, 89 S.Ct. 2072, 23 L.Ed.2d 656 (1969).

It is so ordered.

BOYD, OVERTON and McDONALD, JJ., concur.

SUNDBERG, J., concurs specially with an opinion, with which ENGLAND, C. J., concurs.

ADKINS, J., concurs in result only.

SUNDBERG, Justice,

concurring specially.

I concur in the judgment in this cause because I, like the majority, find that it was not error to deny the motion for mistrial. Under the circumstances of this case I find no manifest necessity to grant a mistrial, particularly in view of the curative instruction delivered by the trial judge without objection from the defendant as to its content or sufficiency. I do not, however, concur with the arbitrary time limit imposed by the majority for making application for mistrial. The orderly conduct of a trial dictates that there must be some time limitation upon moving for a mistrial. In my estimation, a motion made at any time prior to the retirement of the jury to consider their verdict would be timely if the act objected to occurs during closing arguments. A different standard might apply to acts occurring early in the trial, so as to conserve judicial resources. In any event, the test should be one of reasonableness without placing a premium upon simultaneous utterance of “mistrial” when objection is made to a matter at trial. The purpose of Clark v. State, 363 So.2d 331 (Fla.1978), would be served by this procedure because the defendant would not be in a position to “sandbag” the court, yet the defendant would have a reasonable period of time to deliberate upon the course that will serve his best interest.

ENGLAND, C. J., concurs.

      . The district court’s holding that there was no identifiable conduct on the part of Cumbie occurring after the original sentencing which warranted increased sentencing was not challenged by the State and is not before us for review. After Cumbie’s first trial, he was sentenced to two concurrent fifteen-year sentences. But after the third trial, he was given two consecutive fifteen-year sentences. The district court determined that the increased sentence contradicted the principles espoused in North Carolina v. Pearce wherein the Supreme Court of the United States held that the reasons for imposing a more severe sentence after a new trial must affirmatively appear and “must be based upon objective information concerning identifiable conduct on the part of the defendant occurring after the time of the original sentencing proceeding.”


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    Billie Earl HETHCOAT, as Administratrix of the Estate of William Randolph Eatman, Jr., Deceased, Petitioner, v. CHEVRON OIL COMPANY, Hy-Way Heat Systems, Inc., and V. E. Whitehurst & Sons, Inc., Respondents.
    No. 56018.
    Supreme Court of Florida.
    Feb. 28, 1980.
    William C. Owen, of McClure, Wigginton, Owen & Maynard, and Robert C. Dean, Tallahassee, for petitioner.
    Robert Dennis Comfort, of Jones & Lang-don, Gainesville, for Chevron Oil Co.
    Bruce S. Bullock and Martin J. Mickler, of Bullock, Sharp & Childs, Jacksonville, for Hy-Way Heat Systems, Inc.
    Monroe E. McDonald, of Sanders, Mc-Ewan, Mims & McDonald, Orlando, for V. E. Whitehurst & Sons, Inc., respondents.
   ON REHEARING

PER CURIAM.

We vacate our prior opinion filed November 8, 1979. This is a petition for certiorari to review the decision of the district court, reported at 364 So.2d 1243 (Fla. 1st DCA 1978). We find conflict with our recent decision in Auburn Machine Works Co. v. Jones, 366 So.2d 1167 (Fla.1979), and quash the decision of the district court and remand for reconsideration only as to respondent Hy-Way Heat Systems, Inc. As to respondents Chevron Oil Company and V. E. Whitehurst & Sons, Inc., we approve the decision of the district court and deny cer-tiorari.

It is so ordered.

ENGLAND, C. J., and BOYD, OVER-TON, SUNDBERG and ALDERMAN, JJ., concur.


text:
    STATE of Florida, Appellant, v. Richard ALLEN, Appellee. STATE of Florida, Appellant, v. Anthony Marc CANNON, Appellee. STATE of Florida, Appellant, v. Ronald Joseph COPPOLINO, John Angelo Marino, Edward Fred Nunn, Timothy Snider and Nicholas Lyons, Appellees. STATE of Florida, Appellant, v. Warren Dennis PRYOR, Appellee. STATE of Florida, Appellant, v. Kenneth REITANO and Jay Maturo, Appellees. STATE of Florida, Appellant, v. Alton SMITH, Appellee. STATE of Florida, Appellant, v. Ella SPATES, Appellee. STATE of Florida, Appellant, v. Ward Bryant STANLEY, Appellee.
    Nos. 56606, 56607, 56608, 56609, 56610, 56611, 56612 and 56613.
    Supreme Court of Florida.
    Feb. 28, 1980.

      Michael J. Satz, State’s Atty. and Patti L. Englander, Asst. State’s Atty., Fort Laud-erdale, for appellant.
    Alan H. Schreiber, Public Defender, Alan R. Marks, Michael Hittleman and Channing Brackey, Asst. Public Defenders, Fort Lauderdale, for Richard Allen, Anthony Marc Cannon, Alton Smith and Ella Spates.
    Ray Sandstrom of Sandstrom & Haddad, Fort Lauderdale, for Ronald Joseph Coppo-lino, John Angelo Marino, Edward Fred Nunn, Timothy Snider and Nicholas Lyons.
    James A. McCauley, Fort Lauderdale, for Warren Dennis Pryor.
    Patrick C. Rastatter of Glass, Rastatter, Stark & Tarlowe, Fort Lauderdale, for Jay Maturo.
    Hilliard Moldof, Fort Lauderdale, for Kenneth Reitano.
    James I. Cohn of Widoff & Cohn, Fort Lauderdale, for Ward Bryant Stanley.
   PER CURIAM.

The orders of the trial court, finding section 893.03(l)(c), Florida Statutes (1978 Supp.), to be unconstitutional are reversed on the basis of this Court’s recent ruling in State v. Cheatham, 376 So.2d 1167 (Fla.1979). These cases are remanded for further proceedings consistent with that opinion.

It is so ordered.

ENGLAND, C. J., and BOYD, OVER-TON, SUNDBERG, ALDERMAN and MCDONALD, JJ., concur.

ADKINS, J., dissents.


text:
    STATE of Florida, Appellant, v. Mark Anthony BLEYER, Appellee.
    No. 56704.
    Supreme Court of Florida.
    Feb. 28, 1980.
    Michael J. Satz, State’s Atty. and Patti L. Englander, Asst. State’s Atty., Fort Laud-erdale, for appellant.
    Douglas Lambeth, Fort Lauderdale, for appellee.
   PER CURIAM.

The order of the trial court, finding section 893.03(l)(c), Florida Statutes (1978 Supp.), to be unconstitutional, is reversed on the basis of this Court’s recent ruling in State v. Cheatham, 376 So.2d 1167 (Fla.1979). This case is remanded for further proceedings consistent with that opinion.

It is so ordered.

ENGLAND, C. J., and BOYD, OVER-TON, SUNDBERG, ALDERMAN and MCDONALD, JJ., concur.

ADKINS, J., dissents.


text:
    Gary FOURNIER, Appellant, v. STATE of Florida, Appellee.
    No. 56760.
    Supreme Court of Florida.
    Feb. 28, 1980.
    William T. Laswell of Laswell, Taylor & Zwicky, Stuart, for appellant.

      Michael J. Satz, State’s Atty., and Patti L. Englander, Asst. State’s Atty., Fort Lauderdale, for appellee.
   PER CURIAM.

The appellant, Gary Fournier, pled guilty to the charge of possession of over 100 pounds of marijuana with the intent to sell in violation of section 893.18(l)(a)2, Florida Statutes (1978 Supp.). He reserved for appeal the court’s denial of his motion to dismiss in which he challenged the constitutionality of the statute.

For the reasons expressed in Town v. State ex rel. Reno, 377 So.2d 648 (Fla.1979); State v. Cheatham, 376 So.2d 1167 (Fla.1979); and Hamilton v. State, 366 So.2d 8 (Fla.1978); we reject the appellant’s argument and affirm the action of the trial court.

It is so ordered.

ENGLAND, C. J., and BOYD, OVER-TON, SUNDBERG, ALDERMAN and MCDONALD, JJ., concur.

ADKINS, J., dissents.


text:
    STATE ex rel. Lonnie PRICE, Relator, v. Guyte P. McCORD, Jr., Chief Judge, Larry G. Smith, E. R. Mills, Jr., Robert P. Smith, Jr., Richard W. Ervin, III, Woodrow M. Melvin, Anne Booth, Judges of the District Court of Appeal of Florida, First District; Timothy Windell Sullivan; Mansur K. Stevens; and United Services Automobile Assn., Respondents.
    No. 57014.
    Supreme Court of Florida.
    Feb. 28, 1980.
    Walter H. Beckham, Jr. and Joel D. Eaton of Podhurst, Orseck & Parks, Miami, and the Law Offices of Kerrigan, Estess & Rankin, Pensacola, for relator.
    Robert P. Gaines of Beggs & Lane, Pensacola, for respondents.
   PER CURIAM.

The present cause is before the Court on petition for writ of mandamus to the judges of the First District Court of Appeal.

Price was the prevailing party and the recipient of a money judgment in a personal injury suit. The defendants in the suit filed a supersedeas bond pursuant to Florida Rule of Appellate Procedure 9.310(b)(1) in order to stay the judgment pending appeal. The district court affirmed the trial court and, on rehearing, indicated that its mandate would issue within fifteen days unless a motion to stay the mandate was filed. No motion was filed and the district court issued its mandate on the sixteenth day. On the same day, the appellants in the district court filed a notice, seeking certiorari review in this Court. The district court subsequently set aside its mandate and denied Price’s motion for issuance of mandate. Price requests that this Court order the district court to issue its mandate.

Respondents argue that the automatic stay authorized by rule 9.310(b)(1) is intended to remain in effect both through the initial appellate review of a trial court’s order in the district court of appeal, and through any subsequent discretionary review in the supreme court. As an alternative argument, they suggest that the district courts always have the discretion to allow a stay to remain in effect simply by refusing to issue a mandate. We must reject both suggestions. The Florida Rules of Appellate Procedure, as amplified by the committee notes thereto, do not support these views.

Rule 9.310(e) provides that “[a] stay entered by a lower tribunal shall remain in effect during the pendency of all review proceedings in Florida courts until a mandate issues, . . . .” (Emphasis supplied.) Rule 9.340(a) provides that “[ujnless otherwise ordered by the court or provided by these rules, the clerk shall issue such mandate or process as may be directed by the court after the expiration of 15 days from the date of an order or decision.” (Emphasis supplied.) As explained in the committee notes to rule 9.310, these two rules interact, specifically providing a fifteen-day delay in which parties may seek from the district court a stay of its mandate. This interaction is further amplified in the committee notes to rule 9.120, where the requirement of essentiality is identified as the predicate for a district court’s decision to grant a stay pending discretionary review in the supreme court.

The effect of these rules is to make the decisions of the district courts of appeal presumptively final in money judgment (as well as most other) matters, subject to an applicant’s showing that there is both a likelihood of success in. the Supreme Court and irremediable harm by the denial of a stay pending review in that Court. Only upon such a showing will the stay entered by the trial court remain in effect to protect the applicant. See Fla.R.App.P. 9.310, Committee Notes.

In the present case, appellants did not move for a stay of mandate, nor did the court enter a stay on its own motion within the fifteen-day period. Under these circumstances, rule 9.340 makes the issuance of mandate a ministerial duty after the fifteen-day period has expired. That duty, of course, may properly be compelled by writ of mandamus.

Accordingly, Price’s petition for writ of mandamus is granted. Nonetheless, as we believe the judges of the First District Court of Appeal will comply with this decision in the case of Sullivan et a 1. v. Price, 368 So.2d 614, we withhold our writ at this time.

It is so ordered.

ENGLAND, C. J., and BOYD, OYER-TON, SUNDBERG and ALDERMAN, JJ., concur.

ADKINS, J., concurs in result only.

      .Fla.R.App.P. 9.310(a) and (b)(1) provide:
      (a) Application. Except as provided by general law and in section (b) of this rule, a party seeking to stay a final or non-final order pending review shall file a motion in the lower tribunal, which shall have continuing jurisdiction, in its discretion, to grant, modify or deny such relief. A stay pending review may be conditioned upon the posting of a good and sufficient bond, other conditions, or both.
      (b) Exceptions.
      (1) Money Judgments. When the order is solely for the payment of money, a stay pending review is automatic, without the necessity of motion or order, on posting of a good and sufficient bond equal to the amount ordered to be paid, plus 15% thereof. If the liability of a party is less than the entire amount ordered to be paid, the bond required for that party shall be equal to the amount of such liability, plus 15%. Multiple parties having common liability may file a bond in the amount of the common liability, plus 15%.

      . A different result obtained under the 1962 Florida Appellate Rules. Henderson v. Clerk and Judges of District Court of Appeal, First District, 375 So.2d 910 (Fla.1979).

      . The committee notes to rule 9.120 state:
      It should be noted that the automatic stay provided by former Rule 4.5(c)(6) has been abolished because it encouraged the filing of frivolous petitions and was regularly abused. A stay pending review may be obtained under Rule 9.310. If a stay has been ordered pending appeal to a district court, it remains effective under Rule 9.310(e) unless the mandate issues or the district court vacates it. The Advisory Committee was of the view that the district courts should permit such stays only where essential. Factors to be considered are the likelihood that jurisdiction will be accepted by the. Supreme Court, the likelihood of ultimate success on the merits, the likelihood of harm if no stay is granted and the remediable quality of any such harm.


text:
    STATE of Florida, Appellant, v. George Robert KRONOWIT, Appellee.
    No. 57775.
    Supreme Court of Florida.
    Feb. 28, 1980.
    Michael J. Satz, State’s Atty., and Patti L. Englander, Asst. State’s Atty., Fort Lauderdale, for appellant.
    A. Alfred Schreiber, Hollywood, for ap-pellee.
   PER CURIAM.

The order of the trial court, finding section 893.03(l)(c), Florida Statutes (1978 Supp.), to be unconstitutional, is reversed on the basis of this Court’s recent ruling in State v. Cheatham, 376 So.2d 1167 (Fla.1979). This case is remanded for further proceedings consistent with that opinion.

It is so ordered.

ENGLAND, C. J., and BOYD, OYER-TON, SUNDBERG, ALDERMAN and MCDONALD, JJ., concur.

ADKINS, J., dissents.


text:
    STATE of Florida, Appellant, v. Rickey Allen BROWN, Appellee.
    No. 58006.
    Supreme Court of Florida.
    Feb. 28, 1980.
    Michael J. Satz, State’s Atty., and Patti L. Englander, Asst. State’s Atty., Fort Lauderdale, for appellant.
    Alan H. Schreiber, Public Defender, and Channing Brackey, Asst. Public Defender, Fort Lauderdale, for appellee.
   PER CURIAM.

The order of the trial court, finding section 893.03(l)(c), Florida Statutes (1978 Supp.), to be unconstitutional, is reversed on the basis of this Court’s recent ruling in State v. Cheatham, 376 So.2d 1167 (Fla.1979). This case is remanded for further proceedings consistent with that opinion.

It is so ordered.

ENGLAND, C. J., and BOYD, OVER-TON, SUNDBERG, ALDERMAN and MCDONALD, JJ., concur.

ADKINS, J., dissents.


text:
    THE FLORIDA BAR, Complainant, v. Alfonso C. SEPE, Respondent.
    No. 58174.
    Supreme Court of Florida.
    Feb. 28, 1980.
    Paul A. Gross, Branch Staff Counsel, Miami and Anita F. Dahlquist, Asst. Staff Counsel, Tallahassee, for complainant.
    Barry L. Garber, Miami, for respondent.
   PER CURIAM.

This matter is before the Court on Petition for Approval of Conditional Guilty Plea for Consent Judgment and Entry of Final Order of Discipline.

On November 29, 1979, The Florida Bar filed its Petition alleging:

1. On October 24, 1979, Alfonso C. Sepe signed Conditional Guilty Plea for Consent Judgment, pursuant to Integration Rule 11.13(6) in exchange for a Public Reprimand to be published in the Southern Reporter.
2. The respondent admits to violating Disciplinary Rule 1-102(A)(6) of the Code of Professional Responsibility. The facts are as follows:
a) The respondent, while a Circuit Court judge, was accused of soliciting sexual favors from the wife of a convict in exchange for a reduction in the sentence.
b) The respondent denies having solicited sexual favors, but concedes that some of his statements and actions were misconstrued and thereby considered improper by the convict’s wife.
c) The respondent and the female complainant have taken polygraph examinations and, in the opinion of the individual examiners, neither of them showed reaction indicative of deception.
d) A Special State Attorney from the Sixth Judicial Circuit of Florida investigated this matter and found there was insufficient evidence to file criminal charges.
e) The Judicial Qualifications Commission investigated this matter but published no results as Mr. Sepe resigned.
f) On June 26, 1979, a grievance committee found that “The evidence is not clear and convincing that former Judge Alfonso Sepe solicited sexual favors in exchange for mitigating the sentence of a defendant.” However, the committee voted to accept a Conditional Guilty Plea for Private Reprimand.
g) During September, 1979, the Board of Governors of The Florida Bar rejected Mr. Sepe’s Conditional Admission of Minor Misconduct in exchange for a Private Reprimand.
h) On October 24, 1979, Mr. Sepe submitted a Conditional Guilty Plea in exchange for a Public Reprimand to be published in the Southern Reporter.
i) The Board of Governors, at its meeting of November 8-9, 1979, voted to accept Mr. Sepe’s Conditional Guilty Plea in exchange for a Public Reprimand to be published in the Southern Reporter.

The Petition for Approval of Conditional Guilty Plea is granted, and Respondent, Alfonso C. Sepe, is hereby disciplined by public reprimand to be published in the Southern Reporter based upon the facts set forth above. The publication of this Opinion shall serve as the public reprimand to Respondent.

Costs in the amount of $50.00 are hereby taxed against the Respondent.

It is so ordered.

ENGLAND, C. J., and ADKINS, SUND-BERG, ALDERMAN and McDONALD, JJ., concur.


author: HERSEY, Judge.

text:
    Eugene JENKINS, Appellant, v. STATE of Florida, Appellee.
    No. 78-135.
    District Court of Appeal of Florida, Fourth District.
    April 16, 1980.
    Richard L. Jorandby, Public Defender, and Tatjana Ostapoff, Asst. Public Defender, West Palm Beach, for appellant.

      Jim Smith, Atty. Gen., Tallahassee, and Joy B. Shearer, Asst. Atty. Gen., West Palm Beach, for appellee.
   HERSEY, Judge.

Appellant was convicted of first degree murder. The jury recommended that appellant be sentenced to death; however, the trial court imposed a sentence of life imprisonment subject to a mandatory twenty-five year term.

Appellant raises four grounds for reversal, only two of which require consideration.

The first basis for reversal urged by appellant is the trial court’s refusal to excuse two prospective jurors for cause. Both were eventually removed by peremptory challenges and at the time the jury was accepted appellant still had one unused peremptory challenge.

The basis for challenges for cause are set forth in Section 913.03(9), Florida Statutes (1979). The subsection applicable here states:

(9) The juror is related by blood or marriage within the third degree to the defendant, the attorneys of either party, the person alleged to be injured by the offense charged, or the person on whose complaint the prosecution was instituted. [Emphasis Supplied.]

Prospective juror Hayes was by marriage a first cousin once removed of an investigator for the State Attorney’s office. First cousins are related in the fourth degree, so prospective juror Hayes was related within the fifth degree. Since the prohibition goes only to the third degree, the challenge for cause was inappropriate.

The issue is somewhat more difficult with respect to prospective juror McCain, the brother of an assistant State Attorney who, while not directly involved in the prosecution of this case, worked in the same office as the assistant State Attorney who handled the trial. An abundance of caution would seem to require the trial court to grant a challenge for cause where the relationship is within the first three degrees and the related prospective juror is directly connected with the State Attorney’s office. On the particular facts of this case we hold that the error, if any, does not rise to the level of reversible error in view of the fact that appellant’s peremptory challenges were not exhausted. This is not to say that the defendant in a criminal proceeding must sacrifice his peremptory challenges to correct errors resulting from the trial court’s refusal to grant appropriate challenges for cause. Under some circumstances it is clear that reversible error might result. However, such circumstances do not exist in this case.

Appellant urges, as a further basis for reversal, the refusal of the trial court to grant a motion for mistrial directed to testimony of a State witness concerning a polygraph examination. (Appellant also urges error by reason of brief references to a polygraph test in closing arguments, but such references were appropriate to the testimony and were not prejudicial.) The testimony complained of was elicited by defense counsel’s questioning of the State’s witness. The colloquy went as follows:

Q You were confronted with this lie pri- or to the time that you gave a sworn statement, is that correct?
A I don’t understand.
Q Didn’t the agents tell you that you were lying and they could show you were lying and to change your story before you took a sworn statement?
A Did they show me? Nol
Q Did they tell you you were lying?
A No.
Q Haven’t told you you were lying?
A No.
Q Agent Townsend never told you you were lying?
A Who?
Q Agent Joe Townsend, the older man with the glasses.
A No, he’s the one that gave me a polygraph test and he said I passed it.
Q Are you sure he gave you a test and are you sure he said you passed it?
A Yes.
Q Positive?
A Yes.
Q You are sure about that?
A Yes.

We find that the reference to polygraph tests in the context of this litigation did not constitute reversible error. First, appellant opened this subject and persisted in pursuing it to its inevitable conclusion. The error, if any, was invited by appellant and he may not rely upon it on appeal as prejudicial error. Sullivan v. State, 303 So.2d 632 (Fla.1974). In addition, no objection was made at the time of the testimony. It is clear that the failure to make timely objection constitutes a waiver of the objection. An exception exists, not applicable here, where the objectionable matter is of such character that neither rebuke nor retraction may entirely destroy its sinister influence. Akin v. State, 86 Fla. 564, 98 So. 609 (1923). See also Nelson v. Reliance Insurance Co., 368 So.2d 361 (Fla. 4th DCA 1978). In the absence of timely objection, the motion for mistrial made at the close of all the testimony came too late.

Appellant suggests that Dean v. State, 325 So.2d 14 (Fla. 1st DCA 1975), involving testimony concerning a lie detector test, requires reversal here. Reliance upon Dean is misplaced, since in that case a motion for mistrial immediately followed the objectionable testimony and thus was the substantial equivalent of timely objection to the inadmissible evidence.

We acknowledge the propriety of the rule that in the absence of stipulation and upon timely objection, the results of polygraph tests are inadmissible. Codie v. State, 313 So.2d 754 (Fla.1975). On the other hand, failure to object timely to the introduction of inadmissible evidence where the influence of such evidence does not create fundamental error constitutes a waiver of the right to raise that question on appeal. Ashford v. State, 274 So.2d 517 (Fla.1973).

We therefore affirm.

AFFIRMED.

ANSTEAD and LETTS, JJ., concur.


author: BOOTH, Judge.

text:
    Mary Ann BAXTER, Personal Representative of the Estate of John Baxter, Deceased, Petitioner, v. FLORIDA CAREER SERVICE COMMISSION et al., Respondents.
    No. OO-34.
    District Court of Appeal of Florida, First District.
    April 17, 1980.

      Robert D. Hall, Jr. and Joseph W. Carvin of Alley & Alley, Tampa, for petitioner.
    Kathleen Villacorta, Asst. Gen. Counsel, Tallahassee, for respondents, Florida Career Service Commission and State Personnel Director.
    Donna Stinson, Gen. Counsel, Tallahassee, for respondent, Dept, of Health and Rehabilitative Services.

       Due to the death of John Baxter, we have substituted his duly authorized personal representative as party. Rule 9.360(c)(3), Florida Rules of Appellate Procedure.

   BOOTH, Judge.

This cause is before us on appeal from non-final agency action. The main issue has been resolved by the award of the hearing sought by petitioner. Remaining for our consideration is the request for costs and attorney fees. In determining the award of attorney fees, we have considered a number of factors, including the nature and duration of the proceedings below and in this court, as evidenced by the record here.

In February of 1978, petitioner was removed from his job as County Sanitarian for Pasco County. He was reassigned and apparently demoted by his employer, Department of Health and Rehabilitative Services (HRS) for allegedly improper reasons, and without a hearing. Petitioner appealed to the Department of Administration, Division of Personnel. On September 29, 1978, by letter of the State Personnel Director, he was informed that he had not attained a permanent status, that no action taken against him was appealable to the Career Service Commission, and that request for a hearing was rejected. Petitioner responded, objecting to the reliance by DOA on the factual assertion of HRS that, due to a “mutual understanding,” petitioner’s position had not been a permanent one. Thereafter, correspondence continued between DOA and petitioner, repeating requests and denials, for a hearing. Investigation by the Career Service Commission, ex parte, and communications between Career Service and HRS also continued.

On September 3, 1978, Rule 2M-2.-04(2)(b), Rules of the Department of Administration, Career Service Commission, was promulgated. This rule requires that, if an appeal is rejected by the State Personnel Director, the Director must notify the appellant in writing, stating the reasons and advising appellant of his right to submit a written statement challenging those reasons, or to submit evidence in opposition to the decision in an informal proceeding. On September 29, 1978, three weeks after the adoption of the foregoing rule, the Personnel Director wrote the letter previously referred to but failed to advise petitioner of his rights under CSC’s own rule, as required by the rule. The Personnel Director professes lack of knowledge of the new rule promulgated by his agency. However, the Personnel Director of the Career Service Commission is charged with knowledge of the rules promulgated by the agency he serves and is duty-bound to comply therewith.

On January 3, 1979, petitioner filed with the Career Service Commission a request for formal proceedings, alleging disputed issues of material fact. Career Service informed him that his request for the proceeding under Florida Statutes, § 120.57, had to be made to the head of HRS rather than to Career Service. Petitioner objected to this, citing case authority to the effect that the availability of an appeal under Florida Statutes, § 110.061, where there are conflicting facts, is a question to be resolved in a 120.57 hearing before the Career Service Commission. Board of Regents v. Heuer, 332 So.2d 626 (Fla. 1st DCA 1976).

On March 30, 1979, petitioner filed a petition for review of agency action, seeking a hearing before the Career Service Commission. Motion to dismiss was filed by Career Service on the grounds that this court could not require the Commission to take jurisdiction of an appeal it had informally declined to hear, and that there was no administrative action, interlocutory or final, subject to judicial review. Motion to dismiss was filed by HRS on the grounds that the petition for review, etc., was not timely filed in this court, in that it was filed 58 days after “the most recent denial” by the Department of Administration, Division of Personnel, for a hearing.

By order of the court dated April 4,1979, CSC and HRS were ordered to file a written response to the petition. Thereafter, on June 7, 1979, this court entered its order requiring the Career Service Commission to afford petitioner an informal proceeding conducted pursuant to § 120.57(2) on the issue of jurisdiction of CSC of an appeal on the merits of petitioner’s alleged demotion.

On July 23,1979, the opinion and order of the Career Service Commission was filed with this court, finding that the petitioner is entitled to a hearing; that he has obtained permanent status; and that HRS failed to comply with the essential requirements of 22A-1.05, F.A.C., in maintaining position descriptions on a current basis. The Career Service Commission further found that, based on the facts of the instant case, the employee had a right to petition for determination of the facts with regard to his demotion in accordance with Rule 22A-10.-05(1), F.A.C.

On August 2, 1979, this court entered its order directing petitioner to show cause why the proceeding before this court should not be dismissed as moot, in view of the order of the CSC affording a hearing on the merits of petitioner’s appeal. In response, petitioner set forth his claim for costs and attorney fees and reiterated the repeated denial, passage of time and hardship vested upon him by the combined agency action of HRS and CSC. Petitioner’s request for costs and attorney fees cites Graham Contracting, Inc. v. Department of General Services, 363 So.2d 810 (Fla. 1st DCA 1978) and Florida Statutes, § 120.68(13)(a), and attaches the affidavit of petitioner as to his obligation to pay for attorney fees and costs, affidavits of counsel who represented petitioner in the proceedings, affidavit of the office manager of counsel representing petitioner, and the supporting affidavit of a member of the Bar as to the reasonable attorney’s fee.

The Career Service Commission responded to the request for costs and attorney fees, objecting thereto on the basis that the admitted denials by the personnel director of “petitioner’s repeated requests for a hearing” were in accordance with the director’s duties under Rule 22A-10.05(4)(a), which required him to examine the appeal and determine whether or not the petitioner had attained permanent status in the position; that the director was only guilty of having “erroneously interpreted a provision of law” in reaching his decision; that to award costs and fees in this case will only serve “to inhibit the personnel director in the performance of his duties” because of fear of penalty and make him “wary” of denying any person the right to a hearing before CSC “regardless of how specious such an appeal may be.”

In determining the award of costs and fees, we have considered the undisputed facts that petitioner is a man of limited means; that he had been required to pursue his right to a hearing through more than a year and to employ the services of counsel and file an appeal in order to prevail to the extent of obtaining a hearing. To the individual caught in this type of situation, however, prevailing is a hollow victory, since a financial penalty has been exacted by the requirement that the individual pay fees and costs necessarily incurred.

This court, by order dated January 8, 1980, determined that costs and fees would be awarded and granted respondents an opportunity to address the issue of a reasonable amount to be awarded. The respondents, Career Service Commission and State Personnel Director, have responded, questioning the necessity of the hours spent and suggesting a reasonable fee to be $1,500, and costs $50.

We have determined that the time expended by petitioner’s attorneys was reasonable and necessary, as were the costs claimed. We further find that an award of $2,960 in attorney fees and $100 in costs is appropriate. The cost award includes both the appellate filing fee and the necessary cost for reproducing the appellate record filed in this court.

In Jess Parrish Memorial Hospital v. PERC, 364 So.2d 777, 785, Fla.App., this court pointed out that we have “assessed attorneys fees and costs . . . against agencies which flagrantly violated the requirements of Chapter 120 by denying Section 120.57 hearings” and further held:

“[W]e conclude that an agency’s actions may more often be subject to the harsher sanctions of fees and costs if either the fairness of the proceeding or the correctness of the action was impaired by material error in procedure or by a failure to follow prescribed procedure. Section 120.68(8) ...”

The term “sanction” includes, by definition, measures which encourage compliance and lawful action in the future as well as measures which repair by restitution the result of unlawful past action. So it is that the award of fees and costs in this case is not to punish either the director or the agency but to encourage greater care in the observance of the requirements of statutes and rules, and the rights of individuals with whom they deal. The award is not total restitution to petitioner but is in mitigation of the financial penalty exacted as cost of prevailing.

Based on all of the foregoing considerations, we award the fees and costs as stated above, and direct that they be paid within 30 days of this decision becoming final.

MILLS, C. J., concurs.

ROBERT P. SMITH, Jr., J., dissents without opinion.

      . Letter of September 29, 1978, from Personnel Director, in part:
      “We find that you had not attained permanent status in the County Sanitarian Director II position and that at the time you took this position it was with the mutual understanding between you and the agency that the promotion was temporary in nature and to be filled by you until the agency could find a permanent position in a pay grade no lower than Pay Grade 18 in which to assign you, which is the pay grade in which you held permanent status.
      “Since no action has been taken against you which is appealable to the Cáreer Service Commission I have no alternative but to reject your appeal for hearing by the Commission.”

      . Rule 22M-2.04(2)(b), Rules of Department of Administration, Career Service Commission, adopted September 3, 1979:
      . .If the appeal is rejected, the State Personnel Director shall notify the appellant in writing, summarizing the factual, legal and policy grounds for his decision and advising the appellant that the appellant may, within 20 days of receipt of the notice, submit a written statement challenging such grounds or submit evidence in opposition to the decision in informal proceedings. If the appellant’s objections are not accepted by the State Personnel Director, the appellant shall be given a written explanation of the decision. Such decision shall be appealable to the District Court of Appeal.”

      . Now, Florida Statutes, § 110.227 (1979).


text:
    Edward A. STERN, as Personal Representative of the Estate of Milton Stein, Deceased, Appellant, v. Norman MORRIS, Appellee.
    No. 79-1456.
    District Court of Appeal of Florida, Third District.
    April 15, 1980.
    Pallot, Stern & Pollack and Mark E. Pollack, Miami, for appellant.
    Sibley, Giblin, Levenson & Glaser and Allen J. Smith, Miami, for appellee.
    Before HUBBART, .SCHWARTZ and NESBITT, JJ.
   PER CURIAM.

The final order under review, which grants a petition to set aside trust funds held by an estate and pay a final cost judgment therefrom, is affirmed upon a holding that (a) the appellant’s decedent held upon his death certain cash funds, as a trustee under Section 607.301, Florida Statutes (1979), for the payment of the subsequently rendered cost judgment herein, and (b) the subject cash funds, which the estate herein admittedly still holds, were sufficiently identifiable so as not to constitute a part of the said estate and to authorize the imposition of a trust on such funds without the creditor being required to comply with Section 733.702(1)(a), Florida Statutes (1979). Hodges v. Logan, 82 So.2d 885 (Fla.1955); see Sewell v. Sewell Properties, Inc., 159 Fla. 570, 30 So.2d 361, 362 (1947); Wilkins v. Wilkins, 144 Fla. 590, 198 So. 335, 336-37 (1940); First State Trust and Savings Bank v. Therrell, 103 Fla. 1136, 138 So. 733, 739 (1932); Campbell v. Pace, 369 So.2d 413 (Fla.3d DCA 1979).


text:
    Myron I. SEGAL, M.D., Milton P. Caster, M.D., and Surgical Associates, P.A., Petitioners, v. Della ROBERTS and William Roberts, her husband, Respondents.
    Nos. 79-388, 79-488.
    District Court of Appeal of Florida, Fourth District.
    Oct. 31, 1979.
    Todd A. Cowart, James C. Blecke and James E. Tribble, of Blackwell, Walker, Gray, Powers, Flick & Hoehl, Miami, for Segal, Caster and Surgical Associates.

      Montgomery, Lytal, Reiter, Denny & Searcy, West Palm Beach, for Kullman.
    Pyszka, Kessler & Adams, Miami, for Golden Isles Hospital.
    Harvey J. Garod, of Reasbeck & Fegers, Hollywood, for Hollywood Memorial.
    David L. Kahn, of Kahn & Gustafson, Fort Lauderdale, for Della Roberts and William Roberts.
   PER CURIAM.

We issued an opinion in this case on August 1, 1979. It appears, however, that the Respondents, Della Roberts and William Roberts, her husband, never received a copy of the opinion and learned of it accidently in a legal publication just before the time for rehearing had expired. In view of the foregoing we deem it appropriate to grant Respondents’ motion to republish the aforesaid opinion.

Accordingly, Respondents’ motion is granted and the Opinion in this case is republished as of October 31, 1979.

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


author: DOWNEY, Chief Judge.

text:
    Myron I. SEGAL, M. D., Milton P. Caster, M. D., and Surgical Associates. P. A., Petitioners, v. Della ROBERTS and William Roberts, her husband, Respondents.
    Nos. 79-388, 79-488.
    District Court of Appeal of Florida, Fourth District.
    Oct. 31, 1979.
    Rehearing Denied Feb. 19, 1980.

      Harvey J. Garod, of Reasbeck & Fegers, P. A., Hollywood, for petitioners/respondents-Della Roberts and William Roberts.
    Todd A. Cowart and James C. Blecke, of Blackwell, Walker, Gray, Powers, Flick & Hoehl, Miami, for respondents/petitioner s-Segal, Caster and Surgical Associates.
   DOWNEY, Chief Judge.

In these consolidated petitions for common law certiorari the petitioners, Segal, Caster, Surgical Associates, P. A. and South Broward Hospital District, d/b/a Hollywood Memorial Hospital, seek review of an order of the trial court allowing discovery of certain records which petitioners contend are privileged.

It appears that respondents, Della Roberts and William Roberts, sued Segal, Caster and Surgical Associates, P. A., for medical malpractice arising out of a surgical operation performed upon Della Roberts at Golden Isles in August 1970. During the course of the litigation respondents served upon the medical staff secretary of Hollywood Memorial Hospital a notice to take her deposition and a subpoena duces tecum which directed that she produce the following documents at the deposition:

1. The personal file regarding Myron I. Segal, M.D.
2. The records, minutes, reports, resolutions, findings, investigations of the SURGICAL/CLINICAL COMMITTEE from the years 1967 through 1972 as related in any way to Myron I. Segal, M.D., Milton P. Caster, M.D. and Surgical Associates, P.A.
3. Reports, findings and orders or any other document in the file of any Ad Hoc Committee created by the staff of the administration of Hollywood Memorial Hospital to investigate the conduct and activity of Myron I. Se-gal, M.D., during the course of his staff privileges at Hollywood Memorial Hospital.
4. All orders, reports or findings of any committee, board or staff division of Hollywood Memorial Hospital regarding the conduct, skill and ability of Myron I. Segal, M.D., as a thoracic or general surgeon.
5. All correspondence between Hollywood Memorial and Myron I. Segal, M.D.
6. The personal file of Hollywood Memorial Hospital regarding Milton P. Caster, M.D.

A further subpoena required the secretary to also produce:

[T]he entire file of Ad Hoc Committee appointed by the hospital administration or the medical staff of Memorial Hospital, Hollywood, Florida for the purpose of investigating the conduct, skill and standards of Myron I. Segal, M.D.

The doctors and the Hospital filed motions to quash the taking of the deposition and a motion for a protective order. The trial court denied said motions, holding that neither Section 768.40, Florida Statutes (1977), nor public policy precluded discovery of the documents and records in question. Thus, the court essentially directed the witness to produce the documents at the deposition and gave respondents the right to copy said documents “except those as to which an objection is raised at the time of deposition as to relevancy or materiality.” As to those documents the court held respondents could view but not copy them and directed they be sealed and submitted to the court for an in camera inspection. Also, the court directed the depositions were to be sealed and not filed or opened without further order of the court. These petitions for certiorari are directed to that order.

Certiorari is the proper remedy for review of this discovery order since, if the documents in question are privileged, the order would constitute a departure from the essential requirements of law and a plenary appeal would not preclude irreparable injury. West Volusia Hospital Authority v. Williams, 308 So.2d 634 (Fla. 1st DCA 1975); Meiklejohn v. American Distributors, Inc., 210 So.2d 259 (Fla. 1st DCA 1968).

The doctors and the hospital contend that the trial court departed from the essential requirements of law because the documentation subpoenaed was privileged as a matter of public policy, and some of it was also made privileged by Section 768.40, Florida Statutes (1977).

Turning first to the applicability of Section 768.40, Florida Statutes (1977), to the documents subpoenaed the purpose and intent of this statute was fully plumbed by this Court in the recent case of Good Samaritan Hospital Association, Inc. v. Simon, 370 So.2d 1174 (Fla. 4th DCA 1979). There, the Court opined that:

[T]he legislature could have felt that a medical society committee examining the alleged negligence of a physician, may be inhibited in its proceedings if the participants were aware that anything disclosed at the meeting could be used to prove a case against the physician in a civil action for malpractice. Hence, the legislature, in Section 768.40(4), prohibited discovery of the proceedings and records of the committee.

Respondents, Roberts, assert that all four subsections of Section 768.40 must be read together and in that context the discovery privilege contained in subsection (4) thereof only applies to proceedings brought by providers of health services against medical review committees.

We reject this argument because in our opinion subsection (4) makes all “proceedings and records of committees as described in the preceding subsection” privileged “in any civil action against a provider of professional health services arising out of the matters which are the subject of evaluation and review by such committee . . . .” We take that to mean that no proceedings or records of any medical review committee (which qualify under subsection (1)) arising out of matters which are the subject of evaluation and review by such committee may be discovered or used in evidence in any civil action.

Respondents, Roberts, next contend even if Section 768.40, Florida Statutes (1977), is applicable to suits by patients, it is not applicable to the instant suit because of the peculiar wording of subsection (4) thereof. Respondents point out that subsection (4) does not limit discovery unless the cause of action asserted in the complaint arose out of matters which were the subject of evaluation by the Committee. We agree with this interpretation.

It must be remembered that the cause of action involved in this case is the alleged malpractice of the petitioners Dr. Segal, Dr. Caster, and Surgical Associates, P.A., in caring for Mrs. Roberts during her confinement in Golden Isles Hospital in August 1970. Yet the documentation sought by respondents has to do with records and evaluations made by committees in Hollywood Memorial Hospital during various periods from 1967 through 1972. Obviously, those proceedings and records would not be the subject of evaluation and review of medical treatment which took place in another hospital at another time.

We recognize the legislative purpose described in Simon, supra, to make privileged the proceedings and records of medical review committees so that they will be free and uninhibited in their proceedings thus facilitating candor and conscientious evaluation which will promote high quality medical and hospital care. However, stripped of unnecessary terminology (for purpose of this analysis) subsection (4) provides that “[t]he proceedings and records of committees . . shall not be subject to discovery ... in any civil action against a provider of professional health services arising out of matters which are the subject of evaluation and review by such.committee.” Paraphrased, where the circumstances giving rise to the suit were the very ones considered in the committee evaluation, the documents and transcribed proceedings of the said committee hearings are precluded from discovery. But if the subject matter of the suit and the subject of the medical review committee evaluation are not the same, the statute does not apply. Thus, it is our conclusion that the trial judge was correct in holding the statute does not preclude discovery of the subpoenaed documentation in this case.

Although the statute is not applicable in this case, we nevertheless hold, as did the Third District in Dade County Medical Association v. Hlis, 372 So.2d 117 (Fla. DCA 1979), that many of' the matters sought here are not subject to discovery as a matter of public policy. The arguments in favor of confidentiality of the records and proceedings of a medical review committee are so compelling that discovery should be allowed only in the most necessitous circumstances. We cite with approval the opinion by Judge Alan Schwartz in the Dade County Medical Association case, supra, for an apt analysis of this point.

Accordingly, the petitions for certiorari are granted and that part of the order which requires the production of items 2, 3 and 4 and the entire file of the Ad Hoc Committee called for in the subpoenas duc-es tecum is quashed.

ANSTEAD and LETTS, JJ., concur.


author: ROBERT P. SMITH, Jr., Judge. MITCHELL, HENRY CLAY, Jr., Associate Judge,

text:
    Horace C. SELLARS, Appellant, v. FLORIDA REAL ESTATE COMMISSION, Appellee.
    No. MM-455.
    District Court of Appeal of Florida, First District.
    Nov. 14, 1979.
    As Amended On Denial of Rehearing March 28, 1980.

      Carl R. Pennington, Jr. and Russell D. Gautier of Pennington, Wilkinson, Gary & Dunlap, Tallahassee, for appellant.
    Howard Hadley and Kenneth M. Meer, Orlando, for appellee.
   ROBERT P. SMITH, Jr., Judge.

Sellars appeals from a Florida Real Estate Commission order revoking his real estate broker’s license for:

(a) Violation of section 475.25(l)(a), Florida Statutes (1977), which proscribes “fraud, misrepresentation, concealment, false promises, false pretenses, dishonest dealing, trick, scheme or device, culpable negligence, or breach of trust in any business transaction . . .

(b) Violation of section 475.25(l)(h), authorizing discipline of a broker who “[r]end-ered an opinion that the title to any property sold is good or merchantable, except when correctly based upon a current opinion of a licensed attorney at law, or failed to advise a prospective purchaser to consult his attorney on the merchantability of the title or to obtain title insurance . . .

(c) Violation of Fla.Admin.Code R. 21V-10.01, which makes it “fraudulent and dishonest dealing for any broker or salesman to sell or offer for sale any property where he has notice that the title is not merchantable, or upon which he has notice that a mortgage or other lien exists, and about which he fails to inform the purchaser before any portion of the purchase price is paid”; and

(d) Violation of section 475.25(3), which authorizes revocation of a broker’s registration “if he shall be found guilty of a course of conduct or practices which show that he is so incompetent, negligent, dishonest or untruthful that the money, property, transactions and rights of investors or those with whom he may sustain a confidential relation, may not safely be entrusted to him.”

We find substantial competent evidence tending to support the lengthy findings of fact prepared by a DOAH hearing officer and adopted by the Commission, supporting the Commission’s conclusion that Sellars, whose closely-held corporation gave $1,000 for a quit-claim deed to 80 acres of Wakulla County land, sold portions of it, with actual and constructive knowledge that the corporation had no merchantable title, by means of false or misleading assurances to several purchasers.

A registered real estate broker may be disciplined for his dishonest conduct of business affairs for his own account, as well as for such conduct in transactions in which his only interest is as a broker. McKnight v. Florida Real Estate Commission, 202 So.2d 199 (Fla. 2d DCA 1967), cert. den., 209 So.2d 672 (Fla.1968). Because revocation was among the disciplinary remedies available to the Commission, by virtue of Sellars’ violation of section 475.25(3), we will not undertake to substitute our judgment, concerning an appropriate disciplinary measure, for that of the Commission. Florida Real Estate Commission v. Webb, 367 So.2d 201 (Fla.1979).

The only. substantial matter of law to be considered is whether the 1979 Legislature, by enacting chapter 79-239, Laws of Florida, terminated the Commission's disciplinary power over the broker who is guilty of dishonest dealing, for his own account, with property “in which he is a part owner.” Chapter 79-239 revived and made housekeeping revisions to chapter 475, saving it from repeal by the Sunset Law, chapters 76-168 and 77-457, Laws of Florida, and in doing so amended the “exemption” section as follows:

475.011 Exemptions. — This chapter does not apply to:
(2) Any person who deals with property in which he is a part owner, unless he receives a larger share of the proceeds or profits from the transaction than his proportional investment therein would otherwise justify, such excess share being directly or indirectly the result of the service of buying, selling, exchanging, or leasing the property; .

Insofar as it is pertinent here, the 1979 amendment simply created a new section 475.011 to list exemptions from the chapter which previously were set out in a rather less convenient form by section 475.01(2), Florida Statutes (1978 Supp.). That section provided:

nor shall the term broker or salesman be applied to a person who shall deal with property in which he is a part owner, unless said person shall receive a larger share of the proceeds or profits from the transaction than his proportional investment therein would otherwise justify, such excess share being directly or indirectly the result of the service of buying, selling, exchanging or leasing said property; .

The 1979 act did not operate to divest the Commission of jurisdiction to discipline a registered broker who in a business transaction concerning his own real estate is guilty of dishonest dealing. Both the former and the present exemption provisions simply excuse from registration as a broker one who conducts broker-like activities for two or more owners, of whom he is one, unless he receives what is, in effect, a brokerage fee. If the 1979 Legislature had intended a substantive revision terminating the Commission’s power to discipline registered brokers for breach of trust in activities concerning their own real estate, the legislature would have acted less ambiguously to that effect. We can conceive of no reason why, having a purpose to exempt registered brokers from discipline for objectionable conduct in their own real estate transactions, as contrasted with those of their clients, the Commission’s disciplinary powers would have been terminated only as to the broker who was “a part owner” of the land dishonestly dealt with, not touching the Commission’s powers over the broker who wholly owned that land. Reading the 1979 amendment with a purpose to give it the legislature’s intended effect, we conclude that the Commission retains power to discipline for dishonest dealings brokers who so deal with property owned partly or wholly by them, and from the sale of which they receive no brokerage fee as such.

Having found that the Commission may properly revoke the license of a broker who violates Sections 475.25(l)(a) and (d), and Section 475.25(3), Florida Statutes (1977), and Fla.Admin. Code R. 21V-10.01, in selling his own or his closely-held corporation’s property, we need not reach the more troublesome issue of whether Section 475.-25(l)(h), Florida Statutes (1977), by its terms applies to brokers not acting as brokers for the account of others.

AFFIRMED.

MILLS, C. J., concurs.

MITCHELL, HENRY CLAY, Jr., Associate Judge, dissents.

MITCHELL, HENRY CLAY, Jr., Associate Judge,

dissenting.

I respectfully dissent.

I would reverse the order of the Florida Real Estate Commission revoking the Appellant’s real estate broker’s license. It is my determination from a review of the record that the findings of fact of the commission were not based upon competent substantial evidence.

The commission filed a twenty-eight count administrative complaint against the Appellant, Sellars, alleging that he knowingly sold certain property with non-merchantable title to several purchasers without informing them of such non-merchantability, that he failed to advise these purchasers to consult an attorney on the merchantability of the title or to obtain title insurance and that he failed to pay certain real property taxes on behalf of two purchasers.

After the hearing on the complaint, the hearing officer ruled against Sellars and in favor of the commission on substantially all issues of fact and law and recommended that Sellars’ license be suspended for a period of two years. In its final order, the commission adopted the findings of fact and conclusions of law as Set forth in the recommended order but rejected the recommended penalty by increasing the penalty to a revocation of Sellars’ license.

The thrust of the commission’s complaint was based upon the sale of certain parcels of land by Sellars. The property with title problems came from Tract 3 which was one of the five tracts of land originally purchased by Sellars. The first tract of land was purchased from Kenneth Thomas after Thomas offered it for sale to Sellars. Prior to the purchase of Tract 1, Sellars retained a local attorney to examine title to this property and render a title opinion. Based upon this attorney’s opinion that the title was clear, Sellars completed the purchase of Tract 1. Later, Sellars purchased a second tract of land from Thomas. Again, the sale was completed after Sellars received a title opinion from his attorney that the title was clear and merchantable. Sellars later purchased Tracts 3, 4, and 5, from Joyce Thomas, the wife and guardian of Kenneth Thomas who had, at this time, been declared legally incompetent. Prior to purchasing these three tracts, Sellars returned to his attorney and requested that he examine title to these properties and render a title opinion. The attorney advised Sellars that title was clear and merchantable to Tracts 3 and 5, but the title to Tract 4 was clouded. The sale of these three tracts was completed only after the guardian petitioned the court for an order approving the sale and after the sale was duly approved by the court. The petition requesting the court to allow the sale stated that one tract had title problems.

Sellars subsequently sold parcels of Tract 3 to several parties. Sellars did not advise the purchasers that they should either obtain title insurance or consult an attorney with regard to the transaction. All of the sales by Appellant, Sellars, were completed by contracts for deed and/or warranty deeds. The record reflects that Sellars crossed out provisions in the contracts for deed relating to the furnishing of abstracts. It was the agreement between Sellars and the purchasers that the purchasers would bear the cost and the responsibility of obtaining any abstracts. Thus, the provision regarding abstracts was consistently crossed out on many contracts for the sale of the property from the various tracts, and this practice was not limited to sales made from Tract 3 which later proved to have title problems.

When parcels of this property were sold under contracts for deed, Sellars and the purchasers entered into an agreement whereby Sellars would pay the real property taxes on the property on behalf of these purchasers. This arrangement proved to be completely unsatisfactory to everyone concerned when some of the property owners failed to pay to Sellars their portion of the taxes and when Sellars’ bookkeeper failed to collect and pay the taxes. The problem continued, the taxes were not paid and tax certificates were sold on two parcels. Sel-lars purchased one of the certificates in an effort to insure that he would be reimbursed for taxes which were paid. The other certificate was purchased by a third party who obtained it in the presence of Sellars by initially bidding the lowest possible bid. This certificate was later redeemed by Sellars. Throughout the purchases of subsequent sales of this property, there was never any indication of title problems with any parcel other than Tract 4 until Sellars was contacted in 1974 by an attorney representing one of the purchasers of a part of Tract 3. These purchasers desired to pay off the balance owing on their land and retain the attorney to represent them in paying off the balance and obtaining title insurance. This attorney was unable to obtain title insurance on the property for the purchasers and so informed Sellars. Considering the fact that his attorney had rendered an opinion that the title to Tract 3 was clear and the fact that these purchasers ultimately paid the balance due on their property, Sellars continued to believe that no title problems existed to Tract 3. It was not until he was later contacted by another purchaser from Tract 3 that he became concerned about title problems associated with this tract. At this point, he discontinued any further sale from Tract 3 and contacted another law firm in an attempt to ascertain what problems, if any, existed in the title to Tract 3. Sellars was informed by these attorneys that there were, in fact, title problems to Tract 3. The nature of the existing title problem is that although Kenneth Thomas is in the chain of title to Tract 3, there is no official record of conveyance of Tract 3 to Thomas. After being informed of such title problems, Sellars authorized and employed a law firm to take any and all action necessary to cure the title problems.

First, the finding of fact that Sellars should have known that title of Tract 3 was not merchantable was not supported by competent substantial evidence! The commission argues that the petition for order approving sale and the order approving sale established the price paid for Tracts 3, 4, and 5, and these documents show that Sel-lars had knowledge of the title problem. The petition and order reflect that a portion of the property sold had title problems which could not be cleared. There is no evidence in the record that shows that Sel-lars ever saw, examined or otherwise had any knowledge of these documents or that he was present at a hearing on the petition and order. The commission further relied on the fact that Sellars failed to inspect the public record of Wakulla County, Florida, which would have disclosed the title problem associated with Tract 3. This case involved the question of knowledge, and the broker cannot be found guilty of selling property with knowledge that the property had title problems when the attorney advised him that title to the property was clear and when having no contrary knowledge, he relied upon this advice. The fact that the public records may have provided constructive notice to Sellars as a subsequent purchaser has no bearing on the questions raised in the administrative proceedings. Constructive notice serves an obvious purpose in real estate transactions, but it cannot serve to impute actual knowledge for the purpose of disciplinary proceedings.

Second, the commission argues that Section 475.25(l)(h), Florida Statutes (1977), provides that registration may be suspended if the broker:

“(h) Rendered an opinion that the title to any property sold is good or merchantable, except when correctly based upon a current opinion of a licensed attorney at law, or failed to advise a prospective purchaser to consult his attorney on the merchantability of the title or to obtain title insurance.”

The commission contends that this chapter applies to brokers acting in transactions in which they sell for their own account. I disagree. Under the provisions of Chapter 475, Florida Statutes, the commission has authority to discipline a broker for transactions or acts not performed in the broker’s capacity as a broker, but it is obvious that this particular provision of Chapter 475 would not apply to one who deals with his own property, since it imposes a duty that is peculiar to one acting in his capacity as a real estate broker. That duty does not exist unless the broker is acting in this capacity.

Third, the commission adopted the finding that the broker, Sellars, was guilty of fraud, misrepresentation concealment, false promises, false pretenses, dishonest dealing, trick, scheme, or device, culpable negligence and breach of trust in the business transaction in violation of Section 475.25(l)(a), Florida Statutes (1977), for the broker’s failure to pay real property taxes on property that he sold under contracts for deed. Sellars agreed with various purchasers to pay real property taxes on property sold under contracts for deed and these purchasers agreed to forward their pro-rata share of taxes to Sellars. The problem with this arrangement stemmed, in part, from certain purchasers failing to pay their pro-rata share of the taxes. This problem was also occasioned by the fact that Sellars assigned the responsibility of collecting and paying the taxes to his bookkeeper who failed to properly carry out this responsibility. Although Sellars may be guilty of not properly supervising his bookkeeper or of not exercising the best business judgment, there is not competent substantial evidence that Sellars attempted to cheat, trick or defraud anyone in violation of Section 475.25(l)(a) of the Florida Statutes.

Finally, under Count 28 of the administrative complaint, the commission, as provided for under Section 475.25(3) of the Florida Statutes (1977), found a course of conduct or practices which show that the broker was so incompetent, negligent, dishonest and untruthful that the money, property, transactions and rights of an investor or those with whom he may sustain a confidential relation, may not be safely entrusted to him. However, having reviewed the record, I find no conduct on the part of the broker of the character proscribed by the statute.


author: ROBERT P. SMITH, Jr., Acting Chief Judge. ROBERT P. SMITH, Jr., Judge.

text:
    Lawrence S. ROBERTS and Larry Roberts, Inc., a Florida Corporation, Petitioners, v. Kenneth N. AYERS, Hearing Officer, Division of Administrative Hearings, Florida Department of Administration and the Florida Real Estate Commission, Respondents.
    No. OO-49.
    District Court of Appeal of Florida, First District.
    Nov. 14, 1979.
    Rehearing Denied Feb. 20, 1980.

      Guyte P. McCord, III of Spector & Tunni-cliff, Tallahassee, for petitioners.
    Howard Hadley and Kenneth M. Meer, Orlando, for respondents.
   ROBERT P. SMITH, Jr., Acting Chief Judge.

Lawrence Roberts and Larry Roberts, Inc., are licensed by the Florida Real Estate Commission as a real estate broker and a corporate real estate broker. They seek a writ of prohibition to arrest disciplinary proceedings against them on an amended administrative complaint filed January 17, 1979 by the Commission. The charge is that petitioner Roberts, acting for his own account, entered into a contract for sale of property owned by him, accepted a $2,000 deposit from the purchaser, breached a warranty of access set out in the contract and failed to return the purchaser’s $2,000 deposit, allegedly stating that “he could not return' the money because he did not have it.”

The present petition urges that the Commission is without jurisdiction to discipline Roberts and his corporation because the alleged acts, constituting cause for discipline, were not committed by him as a broker. Today we rejected that contention in Sellars v. Florida Real Estate Commission, 380 So.2d 1052 (Fla. 1st DCA 1979). The petition urges also that Peck Plaza Condominiums et al., v. Division of Florida Land Sales et al., 371 So.2d 152 (Fla. 1st DCA 1979), forecloses the Commission from deciding disciplinary matters which require construction and interpretation of contracts. But here the Commission does not seek to enforce contractual rights, as was the case in Peck, but only to inquire into alleged violations of sections 475.-25(l)(a) and (c), Florida Statutes (1977). See also State ex rel. Vining v. Florida Real Estate Commission, 281 So.2d 487, 492 (Fla.1973).

Finally, Roberts urges that the Commission lacks jurisdiction because, contemporaneously with the filing of the administrative complaint, Roberts filed a complaint in the Circuit Court of Seminole County for a declaratory judgment concerning the contract in question and his obligations under it. Thus, Roberts urges, section 475.25(l)(c) forecloses Commission jurisdiction. That statute provides that a registered broker may be disciplined for failing to account or deliver to another any fund which has come into his hands and is not his property, of which he is not entitled to retain, -under the circumstances;

provided, however, that, if the registrant shall, in good faith, entertain doubt as to his duty to account and deliver said property^ or as to what person is entitled to the accounting and delivery, or if conflicting demands therefor shall have been made upon him and he has not appropriated the property to his own use or intermingled it with his own property of like kind, he may notify the commission promptly, truthfully stating the facts, and ask its advice thereon, or after notice thereof to the commission, shall promptly submit, the issue to arbitration by agreement of all parties, or interplead the parties, or otherwise seek an adjudication of the question, in a proper court, and shall abide, or offer to perform, the advice of the commission or the orders of the court or arbitrators, no information against him shall be permitted to be maintained .

The escape provisions of section 475.25(1)(c) must be timely invoked. Grieser v. Myers, 267 So.2d 673 (Fla. 4th DCA 1972), cert. den., 273 So.2d 766 (Fla.1973). From the allegations of the petition and the record supplied, it does not appear as a matter of law that Roberts is entitled to the benefit of the escape provisions of the statute. The contract was made in February 1976 and it contemplated closing in August 1976. The administrative complaint, and the declaratory judgment complaint which sought to supervene the administrative proceeding, were filed in January 1979.

The Commission has clear authority to proceed. The petition for writ of prohibition is

DENIED.

LARRY G. SMITH, J., and WOODROW M. MELVIN, Associate Judge (Ret.), concur.

ON PETITION FOR REHEARING

ROBERT P. SMITH, Jr., Judge.

By petition for rehearing petitioners urge that our opinion appears to rule (incorrectly, they say) that Section 475.-25(l)(c), Florida Statutes (1977), applies to brokers in their conduct with respect to their own property. Petitioners urge that this particular subsection applies only to brokers who, in the language of the statute, “[fjailed to account or deliver to any person” the money or things named “which has come into his hands, and which is not his property, or which he is not in law or equity entitled to retain, under the circumstances .,” and that this particular subsection can apply only to brokers acting as brokers. See Cannon v. Florida Real Estate Comm’n, 221 So.2d 240, 241 fn. 2 (Fla 4th DCA 1969). The cause of our reference to Section 475.25(l)(c) was petitioners’ contention that their use of its escape provisions deprived the Commission of jurisdiction to proceed on a complaint charging, in part, violation of Section 475.25(l)(c). We found that the Commission is not deprived of power to proceed. Neither in our original opinion nor now do we pass on the question of whether, on the facts, petitioners’ alleged conduct would constitute a violation of Section 475.25(l)(c). The question of statutory interpretation is one properly for the Commission in the first instance, and it has jurisdiction to make that interpretation. In any event, if petitioners’ interpretation of Section 475.25(l)(c) is correct, the Commission retains clear jurisdiction to proceed under Section 475.25(l)(a), affording grounds for discipline whether or not the broker was acting as a broker when dealing dishonestly in “any business transaction.”

The petition for rehearing is DENIED.

Larry G. SMITH, J., and MELVIN, WOODROW M., Associate Judge, concur.


text:
    UNITED RESOURCES, INC., a Florida Corporation, Country Club of Miami Corporation, a Florida Corporation and GBB Investments, Inc., a Florida Corporation, Appellants, v. CITY NATIONAL BANK OF MIAMI, a National Banking Association, Appellee.
    No. 78-1912.
    District Court of Appeal of Florida, Third District.
    Jan. 22, 1980.
    Rehearing Denied March 28, 1980.
    Bailey & Dawes and Sara Soto, Miami, for appellants.
    Podhurst, Orseck & Parks and Joel D. Eaton, Miami, for appellee.
    Before PEARSON and SCHWARTZ, JJ., and EZELL, BOYCE, F., Jr. (Ret.), Associate Judge.
   PER CURIAM.

The defendants in a mortgage foreclosure suit appeal that portion of the judgment which allowed the plaintiff an attorney’s fee. It is argued that the fee is excessive for the time spent by the plaintiff’s attorney on the cause. The defendants offered no evidence at the hearing on the fee, and the amount of the fee is supported by the expert testimony. We will not reverse an order allowing a fee under such circumstances absent a showing of a gross abuse of discretion appearing from other factors in the record. See Snider v. Snider, 375 So.2d 591 (Fla. 3d DCA 1979). No such showing has been made. Cf. Molne v. Keyes Co., 357 So.2d 262 (Fla. 3d DCA 1978).

Affirmed.


author: HAVERFIELD, Chief Judge.

text:
    HILTON CASINOS, INC., d/b/a Las Vegas Hilton, Appellant, v. FIRST NATIONAL BANK OF SOUTH MIAMI, a Florida Banking Corporation, and Albert Sakolsky, Appellees.
    No. 79-726.
    District Court of Appeal of Florida, Third District.
    Jan. 22, 1980.
    As Corrected On Denial of Rehearing March 17, 1980.

      Smith, Mandler, Smith, Werner, Jacobow-itz & Fried and Julian R. Benjamin, Miami Beach, for appellant.
    Fromberg, Fromberg & Roth and Jeffrey Michael Cohen, Miami, for appellees.
    Before HAVERFIELD, C. J., SCHWARTZ, J., and MELVIN, WOODROW M. (Ret.), Associate Judge.
   HAVERFIELD, Chief Judge.

Plaintiff, Hilton Casinos, Inc., appeals that portion of an order denying its motion to dismiss the cross-claim of Albert Sakol-sky, the third party defendant.

First National Bank of South Miami issued four cashier’s checks (three in the amount of $5,000 each, and one for $4,500) payable to the order of Albert Sakolsky. Each of the checks was endorsed by Sakol-sky and delivered to Hilton as payment. When Hilton presented the checks for payment, First National refused to honor the checks which were returned and marked “stop payment”. Thereupon, Hilton filed the instant action against First National for $19,500 plus protest fees, interest and costs for its refusal to pay the checks. First National answered and filed a third party complaint against Albert Sakolsky alleging that it had stopped payment on the checks upon the express agreement of Sakolsky to indemnify it for any loss or damages sustained as a result of stopping payment. Sakolsky answered the third party complaint of First National and filed a cross-claim against Hilton for negligence, conversion and injunctive relief. He alleged that while he was a guest at the Las Vegas Hilton and in the gambling casino, he became ill and was escorted by hotel employees to his room; that shortly thereafter, the hotel physician came to the room and administered drugs to him. A short time later while still under the influence of the drugs, he was invited to return to the casino with the assistance of Hilton employees. Sakolsky began to gamble and delivered to Hilton the cashier’s checks in question which Hilton accepted. The gravamen of the cross-claim is that Sakolsky was temporarily incompetent because of the improper administration of the drugs and Hilton should not have permitted or invited him to gamble; therefore, Hilton is not entitled to collect on the checks. Service of the cross-claim was attempted by mailing a copy to Hilton’s counsel. Hilton moved to dismiss Sakolsky’s cross-claim for (1) lack of jurisdiction over the subject matter, (2) lack of jurisdiction over Hilton, and (3) insufficiency of service of process. After hearing argument of counsel, the trial court denied the motion to dismiss. Hilton perfected this interlocutory appeal from the denial order. We reverse.

Pursuant to Fla.R.Civ.P. 1.180, a third party defendant, like Sakolsky, may “assert any claim against the plaintiff arising out of the transaction or occurrence that is the subject matter of the plaintiff’s claim against the third party plaintiff”. In other words, such a cross-claim is not permissible unless it is connected with or dependent on or logically related to the subject matter of the original complaint. 61 Am.Jur.2d Pleading § 185 (1972); 25 Fla. Jur. Pleadings § 96 (1959); Stone v. Pembroke Lakes Trailer Park, Inc., 268 So.2d 400, 402 (Fla. 4th DCA 1972).

With regard to the similar phraseology “provided it arises out of the transaction or occurrence that is the subject matter of the opposing party’s claim” contained in Fla.R. Civ.P. 1.170(a) concerning compulsory counterclaims and its federal counterpart Rule 13(a), we note that the federal courts have utilized the following suggested tests:

“1) Are the issues of fact and law raised by the claim and counterclaim largely the same?
“2) Would res judicata bar a subsequent suit on defendant’s claim absent the compulsory counterclaim rule
“3) Will substantially the same evidence support or refute plaintiff’s claim as well as defendant’s counterclaim?
“4) Is there any logical relation between the claim and the counterclaim?” 6 Wright & Miller, Federal Practice and Procedure § 1410, pp. 41 & 42-U. S. v. Taylor, 342 F.Supp. 715, 717 (D.Kan.1972)

Applying the above tests to the case at bar, the answers would be in the negative upon an examination of the relationship between Hilton’s complaint and Sakol-sky’s cross-claim. The cross-claim simply does not arise out of the transaction or occurrence that is the subject matter of the complaint. Hilton’s complaint is grounded upon First National’s refusal to pay the cashier’s cheeks in question. In contrast, Sakolsky’s cross-claim in essence asserts an independent tort based upon the alleged wrongful actions of Hilton employees. Thus, we conclude that the trial court lacked jurisdiction over the person of the appellant with respect to the cross-claim. Compare Intern. City Bank & Trust Co. v. Forest Shores, 340 So.2d 530 (Fla. 1st DCA 1976).

Accordingly, that portion of the order denying Hilton’s motion to dismiss cross-claim is reversed and the cause remanded to the trial court for further proceedings consistent herewith.

Reversed and remanded.

      . (a) Compulsory Counterclaims. A pleading shall state as a counterclaim any claim which at the time of serving the pleading the pleader has against any opposing party, if it arises out of the transaction or occurrence that is the subject matter of the opposing party’s claim and does not require for its adjudication the presence of third parties over whom the court cannot acquire jurisdiction. But the pleader need not state the claim if (1) at the time the action was commenced the claim was the subject of another pending action, or (2) the opposing party brought suit upon his claim by attachment or other process by which the court did not acquire jurisdiction to render a personal judgment on the claim and the pleader is not stating a counterclaim under this rule.

      . (a) Compulsory Counterclaims. A pleading shall state as a counterclaim any claim which at the time of serving the pleading the pleader has against any opposing party, if it arises out of the transaction or occurrence that is the subject matter of the opposing party’s claim and does not require for its adjudication the presence of third parties of whom the court cannot acquire jurisdiction. But the pleader need not state the claim if (1) at the time the action was commenced the claim was the subject of another pending action, or (2) the opposing party brought suit upon his claim by attachment or other process by which the court did not acquire jurisdiction to render a personal judgment on that claim, and the pleader is not stating any counterclaim under this Rule 13.


author: GRIMES, Chief Judge.

text:
    John N. FERBER, Appellant, v. STATE of Florida, Appellee.
    No. 77-709.
    District Court of Appeal of Florida, Second District.
    Jan. 30, 1980.
    Rehearing Denied March 6, 1980.
    Dennis J. Plews of Law Offices of Robert H. Schultz, Bradenton, for appellant.
    Richard E. Nelson of Nelson, Hesse, Cyril, Weber, Smith & Widman, Sarasota, for Sarasota County.
   ORDER

GRIMES, Chief Judge.

Appellant timely filed a petition for review of an order denying his motion to tax costs incurred in his criminal appeal. The motion was properly filed under Rule 3.16(c), Florida Appellate Rules, 1962 Revision, since the original appeal was taken before March 1, 1978. Therefore, we deny appellee’s motion to dismiss.

On the merits it appears that by virtue of an appeal taken by the appellant, this court reversed the judgments of guilt and sentences entered below. Ferber v. State, 353 So.2d 1256 (Fla.2d DCA 1978). Therefore, pursuant to the provisions of Section 939.15, Florida Statutes (1977), which specifically authorize the recovery of costs where there is a reversal of a judgment, we hold that the trial court erred in denying appellant the right to recover any costs incurred incident to his appeal. The fact that appellant may have later pled to a lesser charge is irrelevant. However, we note that appellant is only entitled to recover those appellate costs which are legally taxable. See Doran v. State, 296 So.2d 86 (Fla.2d DCA 1974).

We reverse the order denying the taxing of appellate costs and remand the cause with directions to award appellant such appellate costs as are properly taxable.

SCHEB and DANAHY, JJ., concur.


author: PER CURIAM. BOOTH, Judge,

text:
    Eugenio LINARES, Appellant, v. CRICKET CASUALS and Auto Owners Insurance Company, Appellees.
    No. QQ-457.
    District Court of Appeal of Florida, First District.
    Feb. 1, 1980.
    Matías Blanco, Jr. of Blanco & Tropp, Tampa, for appellant.
    Kurt Preston Hampp of Jacobs, Robbins & Gaynor, St. Petersburg, P.A., for appel-lees.
   PER CURIAM.

AFFIRMED.

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

BOOTH, J., dissents with opinion.

BOOTH, Judge,

dissenting.

I dissent from this court’s retention of jurisdiction in this case, which arose outside the territorial jurisdiction of the court. See Crews v. Town of Bay Harbor, 378 So.2d 1265 (Fla. 1st DCA 1979).

On the merits, I would concur in the majority’s opinion.


text:
    Kenneth Roger McINTYRE, Appellant, v. STATE of Florida, Appellee.
    No. 79-280.
    District Court of Appeal of Florida, Second District.
    Feb. 1, 1980.
    Rehearing Denied March 6, 1980.

      Jack 0. Johnson, Public Defender, and Michael E. Raiden, Asst. Public Defender, Bartow, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Eula Tuttle Mason, Asst. Atty. Gen., Tampa, for appellee.
   GRIMES, Chief Judge.

Appellant complains that he was convicted of the crime of attempted grand theft, despite the fact that this court recently held that there is no crime of attempted grand theft. Miles v. State, 374 So.2d 1167 (Fla. 2d DCA 1979).

Ordinarily, one cannot be convicted of a nonexistent crime. Vogel v. State, 365 So.2d 1079 (Fla. 1st DCA 1979). However, the peculiar circumstances of this case warrant an exception to the general rule.

In the first place, appellant’s attorney specifically requested the instruction on attempted grand theft. The state objected on the ground that there was no crime of attempted grand theft, even though at that time we had not yet rendered our decision in Miles. In an abundance of caution, the court granted appellant’s request. We do not think appellant should now be able to complain of an error which he promoted. We find analogous the line of cases which have held that a person cannot complain of his conviction for a crime which is not a lesser included offense of the crime with which he was charged when it appears that he induced the error. E.g., Jones v. State, 358 So.2d 37 (Fla. 4th DCA 1978). We hasten to emphasize that this is not a case in which appellant simply failed to object to a proposed instruction on a nonexistent crime. See Vogel v. State.

Moreover, attempted grand theft is not nonexistent in the sense that the activity encompassed by such a charge is not a crime. Rather, the legislature has simply merged this crime with the crime of grand theft by the use of the phrase “endeavors to obtain or to use” in the theft statute, Section 812.014, Florida Statutes (1979). Miles v. State. Thus, evidence of an attempt to commit grand theft can convict a person of the crime of grand theft. Since there was competent and substantial evidence that at the very least appellant attempted to commit grand theft, no prejudice could result from construing the verdict as a finding of guilt for grand theft.

We affirm the judgments but remand the case with instructions to correct the judgment on attempted grand theft to reflect a conviction for grand theft of the second degree.

BOARDMAN and RYDER, JJ., concur.

      . Appellant was also convicted of burglary. His remaining two points on appeal which were directed to both crimes are without merit.


text:
    Louie L. WAINWRIGHT, Appellant, v. PAN-AM TOBACCO CORPORATION, d/b/a Pan-Am Vendtronics, Appellee.
    No. 79-2172.
    District Court of Appeal of Florida, Third District.
    Feb. 5, 1980.
    Rehearing Denied March 24, 1980.
    Jim Smith, Atty; Gen., and Horace Schow, II, Asst. Atty. Gen., Tallahassee, for appellant.
    Smith, Mandler, Smith, Werner, Jacobow-itz & Fried and Steven R. Brownstéin, Miami Beach, for appellee.
    Before PEARSON, HENDRY and BARKDULL, JJ.
   PER CURIAM.

Plaintiff-appellee Pan-Am Tobacco Corporation brought an action for breach of contract against “Louie L. Wain[w]right, Secretary and Chief Executive Officer of the STATE OF FLORIDA, DEPARTMENT OF CORRECTIONS.” Defendant-appellant Wainwright moved to transfer the cause to the Second Judicial Circuit in and for Leon County, Florida. The trial judge denied the motion, and this interlocutory appeal is from that order.

The order is reversed pursuant to the holding of the Supreme Court of Florida in Carlile v. Game and Fresh Water Fish Commission, 354 So.2d 362 (Fla.1977). See also Florida Department of Environmental Regulation v. Key Haven Associated Enterprises, Inc., 364 So.2d 818 (Fla. 3d DCA 1978).

The appellee’s contention that its cause of action is exempted from the rule laid down in Carlile because a Department of Corrections’ official sent a letter terminating the contract to the appellee in Dade County is not tenable. Cf. the facts and law in Department of Revenue v. Arvida Corporation, 315 So.2d 235 (Fla. 2d DCA 1975). See also Foy v. State Road Department, 166 So.2d 688 (Fla. 3d DCA 1964).

The. order appealed is reversed and the cause remanded with directions to transfer the cause to the Circuit Court of the Second Judicial Circuit in and for Leon County, Florida.

Reversed and remanded.