author: NESBITT, Judge. DANIEL S. PEARSON, Judge, SCHWARTZ, Judge BASKIN, Judge

text:
    Logan FINNEY, Appellant, v. The STATE of Florida, Appellee.
    No. 79-1936.
    District Court of Appeal of Florida, Third District.
    Oct. 5, 1982.

      Bennett H. Brummer, Public Defender and Alan R. Dakan, Asst. Public Defender, for appellant.
    Jim Smith, Atty. Gen., and' Steven R. Jacob, Asst. Atty. Gen., for appellee.
    Before HUBBART, C.J., and BARK-DULL, HENDRY, SCHWARTZ, NESBITT, BASKIN, DANIEL S. PEARSON, FERGUSON and JORGENSON, JJ.
   ON MOTION FOR REHEARING EN BANC

NESBITT, Judge.

On its own motion, this court granted a rehearing en banc to review the original majority opinion due to a conflict in Furr v. State, 420 So.2d 341 (Fla. 3d DCA 1982) (Case no. 80-2203, opinion filed October 5, 1982.)

Because motions for rehearing en banc constitute an extraordinary procedural device to harmonize conflicts within a given district court of appeal, we first examine whether sufficient conflict exists to properly authorize a rehearing en banc.

Florida Rule of Appellate Procedure 9.331(c)(1) provides:

A rehearing en banc may be ordered by a district court of appeal on its own motion or on motion of a party. Within the time prescribed by Rule 9.330 and in conjunction with the motion for rehearing, a party may move for an en banc rehearing solely on the ground that such consideration is necessary to maintain uniformity in the court’s decisions. A motion based on any other ground shall be stricken. A vote will not be taken on the motion unless requested by a judge on the panel that heard the proceeding, or by any judge in regular active service on the court. Judges who did not sit on the panel are under no obligation to consider the motion unless a vote is requested.

No decisional law concerning employment of the device has developed but the committee notes to the rule are instructive. The notes in part provide:

This rule is patterned after the en banc rule of the United States Court of Appeals for the Fifth Circuit and should be used sparingly.
... Counsel are reminded that en banc proceedings are extraordinary and will be ordered only in the enumerated circumstances. The ground, maintenance of uniformity in the court’s decisions, is the equivalent of decisional conflict as developed by Supreme Court precedent in the exercise of its conflict certiorari jurisdiction. The district courts are free, however, to develop their own concept of decisional uniformity.

Utilizing these criteria, we are attracted to the Supreme Court decision in Nielsen v. City of Sarasota, 117 So.2d 731 (Fla.1960) where Justice Thornal articulated the basis for the Supreme Court’s conflict jurisdiction:

While conceivably there may be other circumstances, the principal situations justifying the invocation of our jurisdiction to review decisions of Courts of Appeal because of alleged conflicts are, (1) the announcement of a rule of law which conflicts with a rule previously announced by this Court, or (2) the application of a rule of law to produce a different result in a case which involves substantially the same controlling facts as a prior case disposed of by this Court. Under the first situation the facts are immaterial. It is the announcement of a conflicting rule of law that conveys jurisdiction to us to review the decision of the Court of Appeal. Under the second situation the controlling facts become vital and our jurisdiction may be asserted only where the Court of Appeal has applied a recognized rule of law to reach a conflicting conclusion in a case involving substantially the same controlling facts as were involved in allegedly conflicting pri- or decisions of this Court. Florida Power & Light Co. v. Bell, Fla.1959, 113 So.2d 697.

117 So.2d at 734.

We conclude that the test which has been articulated for Supreme Court conflict jurisdiction clearly describes the type of conflict this court requires in order to rehear a ease en banc. A Nielsen type conflict properly activates our authority, rather than the desire of an attorney to have the entire court rehear a case which has been decided contrary to his client’s interests.

Employing the test announced in Nielsen, supra, we have determined that this case involves substantially the same controlling facts as the prior case of Furr, supra. In both cases, the defendant pled nolo contendere, reserving the right to appeal the denial of his motion to suppress. The state in each instance stipulated that the motion to suppress would be dispositive. On these facts, our original decision in Fin-ney held that despite the stipulation the issue was not dispositive and remanded for further proceedings to afford the defendant an opportunity to withdraw his plea; while in Furr, supra, the stipulation was relied upon to determine that the issue was dis-positive. Because the original decision in this appeal reached a different result than that in Furr v. State, supra, on essentially the same controlling facts, we are satisfied that a Nielsen type conflict exists. Consequently, we reach the merits of the present appeal.

In Jackson v. State, 382 So.2d 749 (Fla. 1st DCA 1980), aff’d, 392 So.2d 1324 (Fla.1981), the court concluded that a stipulation by the parties that a case could not be prosecuted without the benefit of a confession, enabled the motion to suppress to be dispositive of the case. Accord, Alexander v. State, 399 So.2d 110 (Fla. 1st DCA 1981); Snell v. State, 388 So.2d 1353, 1354, n. 2 (Fla. 5th DCA 1980); Oesterle v. State, 382 So.2d 1293 (Fla. 2d DCA 1980). This court, in Sune v. State, 402 So.2d 11 (Fla. 3d DCA 1981), recognized that if there had been evidence of a stipulation between counsel, it would be appropriate to reach the merits. This decision is not contrary to Brown v. State, 376 So.2d 382 (Fla.1979) where the court expressed concern that any attempt to demonstrate that a confession was dispositive, would result in a mini-trial being conducted. Where a stipulation has been entered into by both sides, the court will not be called upon to hear testimony as to the dispositive nature of the evidence. A stipulation is the parties’ recognition that, for whatever reason, they have presented all of the evidence that they care to and each is willing to abide the appellate consequences regarding the grant or denial of the motion to suppress. Because this case falls squarely in line with Jackson, supra, we must conclude that by virtue of the stipulation, the present motion to suppress is dispositive of the issue on appeal.

On the merits of the motion to suppress, we find that the motion was properly denied by the court below. The ruling of a trial court on a motion to suppress arrives in the appellate court clothed with the presumption of correctness and all reasonable inferences and deductions to be derived from the evidence will be construed in the light most favorable to sustain the trial court ruling. McNamara v. State, 357 So.2d 410, 412 (Fla.1978); Barrios v. State, 397 So.2d 440 (Fla. 3d DCA 1981).

Viewing the evidence in this light, it appears that a robbery occurred at approximately 2:15 a.m. on July 5, 1979. The victim had been assaulted, but was nonetheless able to provide the investigating officers with the description of a Buick automobile with a black vinyl top and yellow body and no license plate. Based on that information, a BOLO was released and a vehicle matching the description was stopped approximately forty blocks from the robbery scene within an hour of the incident. Fifteen minutes later, Detective Ross arrived at the scene, advised the defendant of his Miranda rights, and was given verbal permission to search the defendant’s vehicle. This led to the disclosure of a watch which matched the description of the victim’s stolen property. The policeman received permission and immediately took the watch to the hospital for the victim’s identification. Upon receiving confirmation that it was the victim’s watch, the officer returned to the station house where the defendant was in custody. After obtaining a photograph of the defendant, Detective Ross compiled a photographic lineup and returned to the hospital with it. The victim positively identified the defendant as the driver of the getaway car used in the robbery. At that point, the defendant was placed under arrest. In all, the arrest occurred approximately ninety minutes from the time when the defendant was stopped. The defendant sought to suppress the introduction of the watch and the victim’s identification of it, the photographic lineup identification, and all evidence obtained therefrom including in-court identification of the defendant.

The police officers’ stop of the defendant’s vehicle was proper because it was supported by an articulable suspicion of criminal activity. Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968); State v. Dunlap, 392 So.2d 1366 (Fla. 3d DCA 1981). The BOLO was issued on the basis of information received directly from the victim. The vehicle described and stopped was a distinct and unusual one. It was seen at a time and place consistent with the criminal activity. See, State v. Delgado, 402 So.2d 41 (Fla. 3d DCA 1981). Consequently, there was no taint from an unconstitutional stop.

Given the right to stop the vehicle, under the circumstances, the officers were, justified in detaining the defendant for approximately ninety minutes. It is permissible for officers to detain a suspect for a reasonable time while making an investigation prior to arrest. State v. Lopez, 369 So.2d 623 (Fla. 2d DCA 1979); State v. Stevens, 354 So.2d 1244 (Fla. 4th DCA 1978). In State v. Merklein, 388 So.2d 218, 219 (Fla. 2d DCA 1980), the court stated that: “[t]he reasonableness of an investigatory detention depends on the circumstances surrounding the detention, and not solely on its length. See Lopez, 369 So.2d at 625.” The court found that a thirty to forty minute detention pending arrival of another officer, robbery victim, and witnesses was not unreasonable. In this case, the defendant was only detained for fifteen minutes before the officer who had interviewed the victim arrived. At that point, the officer could not obtain a positive identification of the defendant without twice traveling to the victim’s hospital room. He also had to take a picture of the defendant in order to compile a photographic lineup. Had the victim been well enough to travel to where the defendant was being held, the identification would have been made sooner. However, under the circumstances, the officer completed his investigation within a reasonable time. Consequently, we find that the length of time which the defendant was detained was reasonable under the circumstances and not violative of the defendant’s rights.

The warrantless search which was conducted subsequent to the legal stop was valid because of the defendant’s consent. Where there was no taint from an unconstitutional stop, the state was only required to show by a preponderance of the evidence that the warrantless search was procured through the defendant’s consent. United States v. Matlock, 415 U.S. 164, 94 S.Ct. 988, 39 L.Ed.2d 242 (1974); Schlanger v. State, 397 So.2d 1028 (Fla. 3d DCA 1981). There is no requirement that the defendant have knowledge of his right to refuse consent to the search. Schneckloth v. Bustamonte, 412 U.S. 218, 93 S.Ct. 2041, 36 L.Ed.2d 854 (1973).

Since we hold that the search did not violate the defendant’s constitutional-rights, the evidence obtained as a result of that search is admissible.

For the foregoing reasons, we find the rehearing en banc to be proper. Our former opinion is vacated and withdrawn and the order denying the defendant’s motion to suppress is affirmed.

HUBBART, C.J., and BARKDULL, HENDRY and FERGUSON, JJ., concur.

DANIEL S. PEARSON, Judge,

concurring specially.

I concur. Today’s decision should put an end to the unseemly spectacle of the State, having agreed through its representative at the trial level (the State Attorney) that a matter is dispositive, later arguing, through its.representative in the appellate court (the Attorney General) that the matter is not dispositive and that we are without jurisdiction to hear the defendant’s appeal. This difference in position was never, in my view, attributable to an act of bad faith by the State. Instead, the difference in position is accounted for by the difference between Jackson v. State, supra, and Brown v. State, supra. Thus, when the State Attorney said “dispositive,” he was talking Jackson — that is, committing the State not to prosecute further in the event the defendant prevailed on appeal; when the Attorney General said “not dispositive,” he was talking Brown — that is, contending that even if the defendant prevailed on appeal, it was still legally possible for the State to continue with the prosecution. But what the Attorney General ignored is that where there is an agreement on dispos-itiveness, Brown’s “legal dispositiveness” is, by definition in Jackson, irrelevant.

Jackson is a welcome retreat from Brown. The concern in Brown that the expeditious resolution of the controversy would be thwarted by permitting a defendant to appeal legally nondispositive pre-plea rulings is obviated where the parties agree that the appellate court’s decision will end the case one way or another. When they so agree, the defendant does not face the prospect of a trial if he prevails on appeal; the appellate decision- concludes the matter, and the precious resources of the courts are saved by not forcing the defendant to go through a trial for the singular purpose of preserving an issue for review.

I come now to my only disagreement with the majority. Since we are treating agreements as to dispositiveness as binding on the parties, I think it absolutely essential that there be a clear understanding what the agreement is. The majority opinion, without any discussion of the agreement, implicitly assumes that the State agreed that if the appellate court were to decide that any one item of evidence or body of testimony which the defendant sought to have suppressed should have been suppressed, the State would not further prosecute. Because — but only because — the majority holds that the trial court was right in every respect and no suppression at all was required, the importance of the agreement, and the majority’s unwarranted assumption about it, is unrevealed.

The agreement to which the State acceded was set forth in defense counsel’s announcement:

“I believe [the] State and I can agree on a stipulation that the motion would be dispositive of the case.”

But Finney’s motion, not atypieally, sought the suppression of more than' one thing. Finney sought to suppress the stolen watch on the ground that the stop of his vehicle was unlawful and that his consent to search the vehicle, leading to the discovery of the watch, was tainted by the stop, see, e.g., Norman v. State, 379 So.2d 643 (Fla.1980); State v. Frost, 374 So.2d 593 (Fla. 3d DCA 1979); he sought to suppress evidence of the out-of-court photographic identification on the ground that the photograph of him was the product of his unlawful detention, see, e.g., Brown v. Illinois, 422 U.S. 590, 95 S.Ct. 2254, 45 L.Ed.2d 416 (1975); Davis v. Mississippi, 394 U.S. 721, 89 S.Ct. 1394, 22 L.Ed.2d 676 (1969); Wong Sun v. United States, 371 U.S. 471, 83 S.Ct. 407, 9 L.Ed.2d 441 (1963); and he sought to suppress the victim’s in-court identification of him on the ground that it was tainted by the out-of-court photographic lineup, see, e.g., Simmons v. United States, 390 U.S. 377, 88 S.Ct. 967, 19 L.Ed.2d 1247 (1968); Baxter v. State, 355 So.2d 1234 (Fla. 3d DCA 1978). Consequently, the trial court’s denial of the “motion” was an amalgam of separate rulings as to separate items of evidence and testimony. Therefore, when the parties agreed that “the motion would be disposi-tive of the case,” it is far from clear that the State was agreeing that it would forego further prosecution of the defendant if we reversed the trial court as to one of its rulings pertaining to one item of evidence or testimony, and, on the other hand, far from clear that the defendant was entering a nolo contendere plea with the understanding that we would have to reverse all of the trial court’s rulings pertaining to all of the items of evidence in order for him to be entitled to discharge from further prosecution.

The problem presented by the ambiguous agreement is, of course, avoided by an af-firmance, as has occurred in the present case, of each and every ruling of the trial court on each and every suppression claim. It is quite conceivable, however, that we could have upheld the vehicle search and denied suppression of the stolen watch, and yet condemned the ensuing and extended detention of the defendant leading to the photographic identification. Yet even if we declared that the State could not elicit testimony concerning the out-of-court identification, we could have consistently held that the victim was free to identify the defendant in court. See, e.g., United States v. Crews, 445 U.S. 463, 100 S.Ct. 1244, 63 L.Ed.2d 537 (1980); Harris v. State, 400 So.2d 462 (Fla. 5th DCA 1981). These potential differences in result, which exist in every case where the defendant and the State agree that a motion or motions seeking to exclude more than one item of evidence or body of testimony obtained through unrelated alleged unlawfulness, will compel us, sooner or later — and I think sooner, to address the problem of the ambiguous agreement.

Therefore, I think this case should serve the additional purpose of placing the State on notice that when it stipulates that something is dispositive, and binds itself to fore-go any further prosecution of the defendant in the event the defendant prevails on appeal, its stipulation must clearly inform us what is meant — that is, upon what motion or motions or what parts of a motion must the defendant prevail before the State will abandon its prosecution. The promise of the State to the defendant will then be clear, and we will be called upon to review only that which will in fact bring an end to the case one way or another. Unless the agreement is clear and it is certain which ruling or rulings will finally conclude the case, a decision by us in the defendant’s favor on any motion and against him on some other furnishes us with no basis for either discharging him or affirming the judgment against him. Such a decision cannot, therefore, be dispositive of the case. And since we have not yet accorded criminal defendants the right to an interlocutory appeal, it follows that we have no jurisdiction to review multiple rulings of a trial court where it is unclear which of those rulings, if not all of them, are dispositive of the case. Accordingly, it is my view that when in the future we are confronted with an ambiguous stipulation, we should immediately relinquish jurisdiction to the trial court for the purpose of having the agreement clarified, and if no clear agreement can be reached, permitting the defendant to withdraw his nolo contendere plea or reaffirming that plea without any agreement.

SCHWARTZ, NESBITT, FERGUSON and JORGENSON, JJ., concur.

SCHWARTZ, Judge

(specially concurring).

I concur with Judge Nesbitt’s opinion on the merits, as well as with Judge Pearson’s specially concurring views.

Under the circumstances of this case, in which en banc treatment is obviously justified on any standard, I see no reason for the discussion of the en banc rule, and specifically do not concur in that portion of Judge Nesbitt’s opinion.

DANIEL S. PEARSON and JORGEN-SON, JJ., concur.

BASKIN, Judge

(dissenting).

I disagree with the majority for several reasons. First, conflict with Furr v. State, 420 So.2d 341 (Fla. 3d DCA 1982), the stated reason for withdrawal of the original Finney opinion, is absent. Furr is a per curiam affirmance with citations and contains no statement of an issue which might serve as a predicate for conflict. Furthermore, at the time the original Fin-ney opinion was released on July 7,1981, no conflict existed. Furr, argued after Finney and first scheduled for release simultaneously with this opinion, is in no sense prior to the original Finney opinion as Judge Nesbitt indicates. This use of the rehearing en banc rule provides litigants two appeals, one before a panel of three judges and one before the entire court. In following this procedure, the majority ignores the purpose of the en banc rule.

Second, Finney and Furr present dissimilar issues which neither conflict nor lack the uniformity described in Florida Rule of Appellate Procedure 9.331(c), governing rehearing en banc. In Finney, the state repudiated its stipulation that it could not proceed to trial in the event of a reversal and announced that it could proceed with eyewitness testimony. In Furr, the stipulation and plea produced two appealed issues subject to different rulings. Neither issue was dispositive because the state indicated it could proceed if either ruling were reversed. Although both Finney and Furr involved stipulations, the disparity of the questions involved takes these eases outside the rule concerning rehearing en banc.

Next, I believe both Jackson v. State, 382 So.2d 749 (Fla. 1st DCA 1980), aff’d, 392 So.2d 1324 (Fla.1981) and Brown v. State, 376 So.2d 382 (Fla.1979) remain valid and require that issues reserved in Ashby nolo pleas be dispositive before we accept review. While the conservation of court resources is commendable, it should not be the sole consideration. Today’s decision prevents the state from prosecuting its case solely because the trial prosecutor mistakenly stipulated that the state would be unable to prosecute if certain evidence were suppressed. Recognizing the error, the state has now informed us that it could proceed to trial or plea by utilizing other evidence if we were to reverse the trial court’s ruling and suppress the challenged evidence. Because the issues appealed are not dispositive, and therefore are not reviewable under supreme court standards, I believe the state should be permitted to confess its error in entering the stipulation and the defendant permitted to withdraw his plea. The state may then prosecute the case according to law, by trial or plea. In my view, Brown v. State, supra, and Jackson v. State, supra, control and mandate withdrawal of the plea which was accepted on the faulty premise that the reserved issue would qualify for appellate consideration.

The Supreme Court of Florida has defined prerequisites to appellate review of issues reserved upon the entry of a nolo contendere plea in accordance with State v. Ashby, 245 So.2d 225 (Fla.1971). In Brown v. State, supra, the court decided that review of an Ashby conditional nolo conten-dere plea is proper when the appealed issue is dispositive of the case. Describing what constitutes a dispositive legal issue which would expedite resolution of a controversy by narrowing the issues to be resolved, the court listed three categories of rulings as illustrative: motions testing the sufficiency of the charging document; the constitutionality of a controlling statute; or the suppression of contraband for which a defendant is charged with possession. Seeking to avoid a minitrial on the question of sufficiency of the evidence when a case involved a confession, the court ruled that a confession could not be considered dispositive for Ashby nolo plea purposes. Furthermore, a trial court ruling on dispositiveness could be overturned upon a showing of “clear abuse of discretion.”

Later, in Jackson v. State, supra, the court added a fourth situation which might render the issue dispositive, that is, when both parties stipulate that a confession is dispositive of the case. Jackson did not, as one concurring opinion suggests, retreat from Brown; it added another circumstance to Brown’s list of dispositive situations. None of those circumstances exists in Finney.

In Finney, a trial prosecutor (assistant state attorney) mistakenly stipulated that our decision would be dispositive of the case, but an appellate prosecutor (assistant attorney general) discovered the error and brought it to our attention. He advised us that the matter appealed is not dispositive because, if we reverse the trial court’s ruling and exclude the evidence challenged, the state will still be able to proceed with eyewitness identification. Thus, we no longer have before us a situation in which both sides agree the matter is dispositive, the Jackson prerequisite for our review, and we must decline review under Brown.

In my opinion, Brown and Jackson do not open the door for appellate consideration upon mere stipulation that the question is ripe for appellate review. Brown precludes us from considering non-dispositive issues, and a stipulation entered by mistake does not change an issue from non-dispositive to dispositive.

In any event, I do not agree that an appellate court must continue the fiction by accepting the issues as dispositive when the appellate court, unlike the trial court, is informed that the issues are not dispositive. In Jackson, the stipulation reflected the truth, that the matter was dispositive; here it does not. No longer do we contemplate a situation in which both parties agree that the state is unable to proceed as required by Jackson. The reality of this situation compels us to recognize that the issue is not dispositive and to permit defendant Finney to withdraw his plea if he wishes to do so.

Ample authority exists for allowing a plea to be withdrawn; Brown v. State, supra, authorized the withdrawal of an Ashby plea entered before the date of its decision. Accord, Kjersgaard v. State, 383 So.2d 763 (Fla. 2d DCA 1980); Pittman v. State, 382 So.2d 1227 (Fla. 2d DCA 1980); Gray v. State, 381 So.2d 302 (Fla. 2d DCA 1980); Arnold v. State, 379 So.2d 1003 (Fla. 2d DCA 1980). A defendant’s understanding that he could appeal, incorrect because of clerical error, was sufficient to provide him the opportunity to withdraw his plea. Thatcher v. State, 385 So.2d 163 (Fla. 5th DCA 1980). A defendant who may have been misled by an appellate opinion was permitted “in the interest of justice” to withdraw his nolo contendere plea. Wright v. State, 376 So.2d 236 (Fla. 1st DCA 1979), cert. denied, 389 So.2d 1117 (Fla.1980). Court rejection of a plea agreement leads to withdrawal of the plea. Davis v. State, 308 So.2d 27 (Fla.1975); Freeman v. State, 376 So.2d 294 (Fla. 2d DCA 1979); Richmond v. State, 375 So.2d 1132 (Fla. 1st DCA 1979); Segarra v. State, 360 So.2d 79 (Fla. 3d DCA 1978) rev’d on other grounds, 388 So.2d 1017 (Fla.1980); State ex rel. Wilhoit v. Wells, 356 So.2d 817 (Fla. 1st DCA), cert. denied, 359 So.2d 1222 (Fla.1978); Slay v. State, 347 So.2d 730 (Fla. 1st DCA 1977); Reynolds v. State, 339 So.2d 714 (Fla. 2d DCA 1976); Fla.R.Crim.P. 3.172(g).

Florida Rule of Appellate Procedure 9.140(f) states: “In the interest of justice, the court may grant any relief to which any party is entitled.”

In summary, I would hold that Brown permits us to review only dispositive issues; that Jackson authorizes review when both sides correctly stipulate that an issue is dispositive; however, when one side repudiates its stipulation and the appellate court is aware that the parties do not agree, the issues are no longer dispositive. Under these circumstances, withdrawal of the plea should be permitted at the election of the defendant. If, however, on appeal, the state misrepresents that a dispositive stipulation is non-dispositive, this court should not hesitate to impose sanctions for that misrepresentation.

      . Although not at issue in this case, we note that the first basis of conflict jurisdiction announced in Nielsen was explained in Kyle v. Kyle, 139 So.2d 885 (Fla.1962). Where a decision of the court is so disharmonious with a prior decision by the court on the same point and generates confusion and instability to the point that the latter may be said to have overruled the former, sufficient conflict exists to reconcile the conflict. We would adhere to that elaboration of Nielsen.

      . The only remaining sphere of influence for Brown is in the case where there is no agreement by the State. The impact of this is that if the State enters into this “conditional nolle prosequi” agreement, neither the trial court nor we can employ Brown to defeat the agreement any more than the trial court or we are empowered to interfere with the State’s right to enter a nolle prosequi to any prosecution. See Wilson v. Renfroe, 91 So.2d 857 (Fla.1956); State v. Sokol, 208 So.2d 156 (Fla. 3d DCA 1968).

      . Thus, were we to decide such an appeal in favor of the defendant, we would reverse the judgment of conviction and, based on the State’s agreement, order the defendant discharged.

      . The proposed amendment to Federal Rule of Criminal Procedure 11 goes even further. It would allow a defendant, with the consent of the Government and court, to enter a conditional plea reserving the right to appeal from the adverse determination of any specified pretrial motion and, if successful, be afforded the opportunity to withdraw his plea. The Advisory Committee Note to Rule 11 recognizes:
      “... While it is true that the conditional plea does not have the complete finality of the traditional plea of guilty or nolo contendere because ‘the essence of the agreement is that the legal guilt of the defendant exists only if the prosecution’s case’ survives on appeal, the plea
      “ ‘continues to serve a partial state interest in finality, however, by establishing admission of the defendant’s factual guilt. The defendant stands guilty and the proceedings come to an end if the reserved issue is ultimately decided in the government’s favor.’ ”
      By comparison, under the holding of the present case, the proceedings come to an end when the issue is ultimately decided, whether in the State’s or the defendant’s favor. Sanctioning agreements as to dispositiveness does away with the time-consuming process which occurs when an appellate court questions whether an issue is legally dispositive, relinquishes jurisdiction to the trial court for a hearing on that issue, finds the issue not disposi-tive, dismisses the appeal, and permits the defendant to withdraw his plea. See, e.g., Gray v. State, 381 So.2d 302 (Fla. 2d DCA 1980). Moreover, encouraging and accepting agreements between the State and the defendant will have the salutary effect of avoiding potential collateral attacks on nolo contendere pleas entered in the erroneous belief, gained from counsel or the trial judge, that a preserved issue is legally dispositive and an appeal is viable. See Hardison v. State, 385 So.2d 738 (Fla. 2d DCA 1980) (dismissing appeal without affording appellant right to withdraw his plea entered after Brown); Campbell v. State, 386 So.2d 629 (Fla. 5th DCA 1980) (affirming without addressing nondispositive suppression issue); Webb v. State, 373 So.2d 400 (Fla. 1st DCA 1979) (affirming without addressing one of two suppression issues on ground not legally dispositive where plea entered pre-Brown).

      . The ABA Standards, The Prosecution Function and The Defense Function 4.3(c) (Approved Draft, 1971) Comment b, provides:

        b. Honoring plea agreements
      The refusal to honor an agreement concerning a recommendation to the court after a guilty plea is made undermines the volun-tariness of that plea. See Shelton v. United States, 242 F.2d 101, 113 (5th Cir. 1957). Accordingly, it has been recommended in an earlier Report that the defendant be entitled as of right to withdraw his guilty plea if the court finds the prosecutor has breached the plea agreement ABA STANDARDS, PLEAS OF GUILTY § 2.1 (Approved Draft, 1968). The prosecutor may find himself unable to fulfíll an agreement previously made, either because the agreement exceeded the power of the prosecutor who made it or because new facts show that it was inappropriate. See People v. Pagano, 283 App.Div. 1075, 131 N.Y.S.2d 167 (1954). When these circumstances arise and the prosecutor is not able to fulfill the agreement, he must take steps to see that his action does not prejudice the defendant. He should notify the defendant promptly and cooperate in seeking a withdrawal of a guilty plea and restoring the defendant to his position prior to the making of any plea, (emphasis added).

      . The ABA Standards, The Prosecution Function and The Defense Function 4.3(c) (Approved Draft, 1971), defines the function of the prosecutor:
      4.3. Fulfillment of plea discussions

      (c) If the prosecutor finds he is unable to fulfill an understanding previously agreed upon in plea discussions, he should give notice promptly to the defendant and cooperate in securing leave of the court for the defendant to withdraw any plea and take other steps appropriate to restore the defendant to the position he was in before the understanding was reached or plea made.
      The.Commentary explains:
      a. Misrepresentation of Power or Intention A plea entered as the result of a prosecutor’s promising concessions beyond his power to fulfill is involuntary and the defendant is entitled to withdraw it. Machibroda v. United States, 368 U.S. 487 [82 S.Ct. 510, 7 L.Ed.2d 473] (1962). More often it is not so much a matter of intentional deception by the prosecutor as that he has failed to make clear that he is without power to effect a particular disposition by the court. See State v. Hovis, 353 Mo. 602, 183 S.W.2d 147 (1944). It is therefore important that the prosecutor make clear to the defense that he is not able to assure the judicial consequence of a guilty plea.
      Florida Rule of Criminal Procedure 3.171, relating to plea discussions and agreements, “finds its genesis” in the ABA Standards, Pleas of Guilty (1968). Davis v. State, supra at 29.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    James Alvin EVANS, Appellant, v. The STATE of Florida, Appellee.
    No. 81-2592.
    District Court of Appeal of Florida, Third District.
    Oct. 12, 1982.

      Bennett H. Brummer, Public Defender and Stuart Gitlitz, Sp. Asst. Public Defender, for appellant.
    Jim Smith, Atty. Gen. and Calvin L. Fox, Asst. Atty. Gen., for appellee.
    Before BARKDULL, SCHWARTZ and NESBITT, JJ.
   PER CURIAM.

Affirmed. White v. State, 377 So.2d 1149 (Fla.1980); State v. Jones, 204 So.2d 515 (Fla.1967).


author: RYDER, Judge.

text:
    Daniel F. BLOCH, Appellant, v. WHITFIELD ZONING DISTRICT, Appellee.
    No. 81-1558.
    District Court of Appeal of Florida, Second District.
    Oct. 15, 1982.
    Daniel F. Bloch, pro se.
    Thomas M. Gallen, Bradenton, for appel-lee.
   RYDER, Judge.

Bloch appeals the summary judgment adverse to his claim for declaratory and in-junctive relief, arguing that the lower court erred in finding legislation creating the Whitfield Zoning District to be constitutional.

We recently held that the act creating the Whitfield Zoning District, Chapter 25996, Laws of Florida 1949, as amended by Chapter 74-529, was an unauthorized delegation of legislative power contrary to the provisions of Article II, Section 3 of the Florida Constitution, and was consequently unconstitutional. State v. Roberts, 419 So.2d 1164 (Fla. 2d DCA 1982). The issue and argument of appellant below are identical to those adopted by this court in Roberts.

We reverse the entry of summary judgment below based upon the reasoning and holding of Roberts, and remand this case to the trial court for further proceedings.

OTT, C.J., and GRIMES, J., concur.


text:
    David L. YARISH, Appellant, v. STATE of Florida, Appellee.
    No. 81-2474.
    District Court of Appeal of Florida, Second District.
    Oct. 15, 1982.
    Jerry Hill, Public Defender, Bartow, and Deborah K. Brueckheimer, Asst. Public Defender, Clearwater, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Frank Lester Adams, III, Asst. Atty. Gen., Tampa, for appellee.
   PER CURIAM.

We affirm Yarish’s convictions and sentences for grand theft, dealing in stolen property and violation of probation. However, we do so without prejudice to his right to seek relief via rule 3.850 motion for post-conviction relief demonstrating that a manifest injustice occurred because the trial court failed to establish a factual basis for his pleas. See Williams v. State, 316 So.2d 267 (Fla.1975).

BOARDMAN, A.C.J., and GRIMES and CAMPBELL, JJ., concur.


text:
    Lucenia Betha FULLER, Appellant, v. The STATE of Florida, Appellee.
    No. 81-1935.
    District Court of Appeal of Florida, Third District.
    Oct. 19, 1982.
    Bennett H. Brummer, Public Defender and Rory S. Stein, Asst. Public Defender, for appellant.
    Jim Smith, Atty. Gen. and Penny H. Her-shoff, Asst. Atty. Gen., for appellee.
    Before HUBBART, C.J., and BARK-DULL and NESBITT, JJ.
   PER CURIAM.

This is an appeal from a criminal conviction and sentence in which the sole point on appeal is whether the prosecution below was barred by double jeopardy. We have concluded that there was a manifest necessity for the trial court to declare, as it did, a mistrial on its own motion during a prior trial of this cause when (a) one of the jurors indicated in the course of the trial that he could no longer fairly judge the defendant’s guilt or innocence, (b) no alternate juror was available to take the above juror’s place, and (c) the defendant indicated that he did not want the above juror to sit, did not want to be tried by a five-person jury, and would not move for a mistrial. Moreover, we are unpersuaded that the trial court was obligated to attempt to bring back a juror, who had been previously replaced by an alternate juror after the jury had been sworn, as that juror was not in court and had not heard any part of the trial up to that point. The trial court was, therefore, correct in declaring a mistrial based on a manifest necessity and in denying the defendant’s subsequent motion to dismiss the information as being barred by double jeopardy. See e.g., State ex rel. Williams v. Grayson, 90 So.2d 710 (Fla.1956).

Affirmed.


text:
    Tyrone YOUNG, Appellant, v. The STATE of Florida, Appellee.
    No. 81-2013.
    District Court of Appeal of Florida, Third District.
    Oct. 19, 1982.

      Bennett H. Brummer, Public Defender, and Beth C. Weitzner, Asst. Public Defender, for appellant.
    Jim Smith, Atty. Gen., and Diane Zimmer Leeds, Asst. Atty. Gen., for appellee.
    Before SCHWARTZ, FERGUSON and JORGENSON, JJ.
   PER CURIAM.

Affirmed. See, Shrum v. State, 401 So.2d 941 (Fla. 5th DCA 1981).


text:
    Dale Blackstone SPITLER, Appellant, v. The STATE of Florida, Appellee.
    No. 81-2108.
    District Court of Appeal of Florida, Third District.
    Oct. 19, 1982.
    Bennett H. Brummer, Public Defender, and Bruce A. Rosenthal, Asst. Public Defender, for appellant.
    Jim Smith, Atty. Gen., and Penny H. Hershoff, Asst. Atty. Gen., for appellee.
    Before NESBITT, BASKIN and DANIEL S. PEARSON, JJ.
   PER CURIAM.

Affirmed. Herman v. State, 396 So.2d 222, 229 (Fla. 4th DCA), cert. dismissed, 402 So.2d 610 (Fla.1981); Holland v. State, 359 So.2d 28 (Fla. 3d DCA 1978), cert. denied, 367 So.2d 1124 (Fla.1979). § 90.704, Fla. Stat. (1981); Roberts v. State, 164 So.2d 817 (Fla.1964).


text:
    Eddie Harold PHELPS, Appellant, v. The STATE of Florida, Appellee.
    No. 81-2291.
    District Court of Appeal of Florida, Third District.
    Oct. 19, 1982.
    Bennett H. Brummer, Public Defender, and John H. Lipinski, Sp. Asst. Public Defender, for appellant.
    Jim Smith, Atty. Gen., and Steven R. Jacob, Asst. Atty. Gen., for appellee.
    Before BARKDULL, DANIEL S. PEARSON, and JORGENSON, JJ.
   PER CURIAM.

Affirmed. State v. Medlin, 273 So.2d 394 (Fla.1973); Broic v. State, 79 So.2d 775 (Fla.1955).


text:
    MIAMI-DADE WATER AND SEWER AUTHORITY, Appellant, v. BISCAYA CONDOMINIUM ASSOCIATION, INC., Bonavida Condominium Owners Association, Inc., Bona-Vista Condominium Association, Inc., Bravura Condominium Association, Inc., Eldorado Towers Condominium Association, Inc., and Ensenada Condominium Association, Inc., Appellees.
    No. 81-2392.
    District Court of Appeal of Florida, Third District.
    Oct. 19, 1982.

      Worley & Harnage and Henry Harnage, Miami, for appellant.
    Howard M. Neu, North Miami, for appel-lees.
    Before NESBITT, BASKIN and FERGUSON, JJ.
   PER CURIAM.

The partial summary judgment and order dismissing the appellant’s supplemental counterclaim, both of which were incorporated into the final judgment appealed from, are affirmed. The court properly construed the contract between Miami-Dade Water and Sewer Authority and the developer to preclude the Authority from requiring guaranty deposits from the condominium association. Dismissal of the supplemental counterclaim for declaratory judgment was nonprejudicial because it did not assert a compulsory counterclaim and therefore may be the subject of an independent action.

Affirmed.


text:
    Pablo RAMOS, Appellant, v. The STATE of Florida, Appellee.
    No. 81-2412.
    District Court of Appeal of Florida, Third District.
    Oct. 19, 1982.
    Bennett H. Brummer, Public Defender, for appellant.
    Jim Smith, Atty. Gen., for appellee.
    Before BARKDULL, HENDRY and FERGUSON, JJ.
   PER CURIAM.

Affirmed. Herring v. State, 411 So.2d 966 (Fla. 3d DCA 1982).


text:
    Robert A. HOWARD, Appellant, v. MINNESOTA MUSKIES, INC., and Eugene E. Stearns, Appellees.
    Nos. 81-2645, 81-2676.
    District Court of Appeal of Florida, Third District.
    Oct. 19, 1982.

      Bailey & Dawes and Henry J. Whelchel, Miami, for appellant.
    Stephens, Lynn, Chernay & Klein and Robert Klein, Miami, Frank, Strelkow & Gay and Carl Schmitt, North Bay Village, for appellees.
    Before HUBBART, C.J., and BARK-DULL and NESBITT, JJ.
   PER CURIAM.

We affirm the summary final judgment entered in favor of the defendant Eugene E. Stearns on the attorney malpractice claim because it was time barred by the applicable two-year statute of limitations. § 95.11(4)(a), Fla.Stat. (1981). The plaintiff Robert A. Howard admittedly learned, no later than May 1978, of a prior judgment entered against him and, with the exercise of due diligence, should have learned shortly thereafter that this was a default judgment entered after his counsel, the defendant Stearns, had withdrawn; the alleged attorney malpractice was that Stearns withdrew without the plaintiff Howard’s knowledge or consent. Without dispute, the plaintiff Howard made only one effort thereafter to contact the defendant Stearns, to wit: he telephoned Stearns’ office only to discover that Stearns was no longer with the law firm where he previously had practiced. The plaintiff should have, at that point, been on notice that something was awry. Instead, he abandoned all inquiries in the matter, disregarded the judgment against him, and took no action whatever until several years later when serious collection efforts were made by the judgment creditor to collect on the judgment. By the time he filed the subject suit, well over two years had expired, as a matter of law, from the time he should have discovered his attorney’s alleged professional negligence. See Henzel v. Fink, 340 So.2d 1262 (Fla. 3d DCA 1976), cert. denied, 348 So.2d 948 (Fla.1977).

We further affirm the final summary judgment entered in favor of the defendant Minnesota Muskies, Inc. on the ground that the plaintiff Howard’s independent action to set aside the above prior judgment as being a fraud on the court created no genuine issues of material fact. As a matter of law, the above-stated, alleged professional negligence of the defendant Stearns in failing to notify the plaintiff Howard concerning the counsel’s withdrawal from the case did not constitute, as asserted, a fraud on the court because (a) the subject conduct was negligence at worst, not fraud, (b) the subject conduct in no way misled the court as to its jurisdiction over the subject matter or parties, and (c) the subject conduct was attributable entirely to the plaintiff’s own counsel. Alexander v. First National Bank of Titusville, 275 So.2d 272 (Fla. 4th DCA 1973).

Affirmed.


text:
    The MIAMI HERALD PUBLISHING COMPANY, a DIVISION OF KNIGHT-RIDDER NEWSPAPERS, INC., Appellant, v. CITY OF NORTH MIAMI, a municipal corporation of the State of Florida; Tobias Simon, as City Attorney for the City of North Miami; Mayor Howard Neu, James Devaney, John Hagerty, Robert Lippelman, and Diane Brannen, as members of the City Council of the City of North Miami, Appellees.
    No. 81-2735.
    District Court of Appeal of Florida, Third District.
    Oct. 19, 1982.

      Paul & Thomson and Sanford L. Bohrer and Richard J. Ovelmen, Miami, for appellant.
    Simon, Schindler & Hurst and Deborah J. Miller, Miami, for appellees.
    Milledge & Hermelee and Alan Rosen-thal, Miami, for Media Relations Committee as amicus curiae.
    C. Marie King, Clearwater, Doris E. Jenkins, Tallahassee, for the Government Lawyers Subcommittee of the Member Relations Committee of the Florida Bar as ami-cus curiae.
    Before HUBBART, C.J., and BARK-DULL and SCHWARTZ, JJ.
   PER CURIAM.

Without actually reviewing or referring to the particular records in question, the trial court, stating that the order “applies only to those matters ... subject to the attorney-client privilege,” denied the Miami Herald’s petition for mandamus to compel disclosure of several North Miami litigation files under the Public Records Act, Secs. 119.01-12, Fla.Stat. (1981). Since the order was entered prior to Donner v. Edelstein, 415 So.2d 830 (Fla. 3d DCA 1982), and Donner v. Edelstein, (Fla. 3d DCA case no. 82-58, opinion filed, October 5, 1982), it understandably does not comply with the procedural requirements set out by those decisions for the determination of such issues in the trial court. Consequently, in accordance with Edelstein II, the order below is vacated, and the cause is remanded with directions to examine in camera the documents which are being withheld from disclosure under the privileges asserted; determine which, if any, are within the attorney-client privilege; which, if any, constitute “work-product” materials which are required to be disclosed under the Public Records Act, Tober v. Sanchez, 417 So.2d 1053 (Fla. 3d DCA 1982); and to retain copies of all records examined as sealed exhibits, so that either of the parties may thereafter seek appropriate review of the trial court’s rulings.

Vacated and remanded with directions.

      . We note that Tober was likewise decided subsequent to the entry of the order under review.


text:
    Thomas Earl ISOM, Appellant, v. The STATE of Florida, Appellee.
    No. 81-2763.
    District Court of Appeal of Florida, Third District.
    Oct. 19, 1982.
    Bennett H. Brummer, Public Defender and Arthur M. Carter, Jr. Sp. Asst. Public Defender, for appellant.
    Jim Smith, Atty. Gen. and Jack Ludin, Asst. Atty. Gen., for appellee.
    Before HUBBART, C.J., and BARK-DULL and SCHWARTZ, JJ.
   PER CURIAM.

Affirmed. Bernhardt v. State, 288 So.2d 490 (Fla.1974); Stanley v. State, 357 So.2d 1031 (Fla. 3d DCA 1978); Zicca v. State, 232 So.2d 414 (Fla. 3d DCA 1970); New York v. Belton, 453 U.S. 454, 101 S.Ct. 2860, 69 L.Ed.2d 768 (1981).


text:
    Holbein RODRIGUEZ, Herbert Antonio Collazos-Ramirez, Carlos Amador, Antonio Lopez, and Amparo Rodriguez, Appellants, v. The STATE of Florida, Appellee.
    No. 82-69.
    District Court of Appeal of Florida, Third District.
    Oct. 19, 1982.
    Mark King Leban, Miami, and Kravitz & Von Zamft, Hialeah, for appellants.
    Jim Smith, Atty. Gen., and Diane Zimmer Leeds, Asst. Atty. Gen., for appellee.
    Before HENDRY, NESBITT and DANIEL S. PEARSON, JJ.
   PER CURIAM.

The defendants were convicted on pleas of nolo contendere of various lottery violations, specifically reserving their right to appeal the denial of their motions to suppress the tangible physical evidence of their lottery operation. We reverse.

We find that the affidavit in support of the search warrant did not establish probable cause that an illegal lottery operation was being conducted on the premises. The only connective between the suspicious activity and gambling was that brown paper bags were passed from third parties to occupants of the premises. The affiant made no attempt to characterize or describe the contents of the opaque containers. Thus, the affidavit failed to sufficiently reflect probable cause that an illegal lottery operation was being conducted. Pesce v. State, 288 So.2d 264 (Fla. 4th DCA 1974); Murphy v. State, 402 So.2d 1265 (Fla. 3d DCA 1981).

For the foregoing reasons, the judgments of conviction and order denying the defendants’ motion to suppress are reversed and the case is remanded for further proceedings.


text:
    CITY OF MIAMI, Appellant, v. Maria C. NAVARRO and Fernando Navarro, Appellee.
    No. 82-266.
    District Court of Appeal of Florida, Third District.
    Oct. 19, 1982.
    Jose R. Garcia-Pedrosa, City Atty. and Mikele S. Carter, Asst. City Atty., for appellant.
    Sidney A. Goldberg and Mark R. Baer, Greene & Cooper and Joan M. Bolotin, Miami, for appellee.
    Before HENDRY, BASKIN and JOR-GENSON, JJ.
   PER CURIAM.

Affirmed. Navarro v. City of Miami, 402 So.2d 438 (Fla. 3d DCA 1981).


text:
    Raul Dejesus FINLAY, Appellant, v. The STATE of Florida, Appellee.
    No. 82-267.
    District Court of Appeal of Florida, Third District.
    Oct. 19, 1982.
    Bennett H. Brummer, Public Defender and Elliot H. Scherker, Asst. Public Defender, for appellant.
    Jim Smith, Atty. Gen., and Steven R. Jacob, Asst. Atty. Gen., for appellee.
    Before HUBBART, C.J., and BASKIN and DANIEL S. PEARSON, JJ.
   PER CURIAM.

Affirmed. Hetland v. State, 387 So.2d 963 (Fla.1980).


text:
    Manuel LORENZO, Appellant, v. The STATE of Florida, Appellee.
    No. 82-293.
    District Court of Appeal of Florida, Third District.
    Oct. 19, 1982.
    Taffer & Jacobs, Miami, for appellant.
    Jim Smith, Atty. Gen. and Jack B. Ludin, Asst. Atty. Gen., for appellee.
    Before HUBBART, C.J., and BARK-DULL and SCHWARTZ, JJ.
   PER CURIAM.

Affirmed. Cavalluzzi v. State, 409 So.2d 1108 (Fla. 3d DCA 1982); Rakas v. Illinois, 439 U.S. 128, 99 S.Ct. 421, 58 L.Ed.2d 387 (1978).


text:
    Teresa FAYDEN and Karen Fayden, Appellants, v. Carlos GUERRERO; Gable Lincoln-Mercury, Inc., a Florida corp.; Liberty Mutual Ins. Co., a foreign corp.; Sanford Martin; and Allstate Ins. Co., a foreign corp., Appellees.
    No. 82-441.
    District Court of Appeal of Florida, Third District.
    Oct. 19, 1982.

      Tew, Critchlow, Sonberg, Traum & Fried-bauer, J. James Donnellan III, Miami, for appellants.
    Richard E. Harwick, Coral Gables, Daniels & Hicks and Patrice A. Talisman, Miami, for appellees.
    Before NESBITT, DANIEL S. PEARSON and FERGUSON, JJ.
   PER CURIAM.

A minor child does not have an independent cause of action for loss of parental support, companionship, and guidance when its parent is negligently injured by a third party but does not die as a result thereof. Clark v. Suncoast Hospital, Inc., 338 So.2d 1117 (Fla. 2d DCA 1976).

Affirmed.


text:
    John SALANO, Appellant, v. The STATE of Florida, Appellee.
    No. 82-487.
    District Court of Appeal of Florida, Third District.
    Oct. 19, 1982.
    Bennett H. Brummer, Public Defender and Rory S. Stein, Asst. Public Defender, for appellant.
    Jim Smith, Atty. Gen. and Paul Mendel-son, Asst. Atty. Gen., for appellee.
    Before HENDRY, BASKIN and JOR-GENSON, JJ.
   PER CURIAM.

In accordance with the state’s admission that the order of probation revocation entered by the trial court fails to reflect defendant’s acquittal of one of the charges, we remand the cause for correction of the sentence. Defendant’s presence is not required.

Remanded.


text:
    BOOGAART OF FLORIDA, HIALEAH, INC., a Florida corporation, Appellant, v. FLORIDA POWER AND LIGHT COMPANY, INC., Appellee.
    No. 82-508.
    District Court of Appeal of Florida, Third District.
    Oct. 19, 1982.

      Smathers & Thompson and Henry H. Bolz, III, Miami, for appellant.
    Steel, Hector & Davis and James P. Murray and Paul J. Bonavia, Miami, for appel-lee.
    Before HENDRY, BASKIN and JOR-GENSON, JJ.
   PER CURIAM.

Affirmed. Delgado v. Strong, 360 So.2d 73 (Fla.1978); Strawgate v. Turner, 339 So.2d 1112 (Fla.1976).


text:
    Rosario OLIVA, Appellant, v. FLORIDA POWER & LIGHT COMPANY, Appellee.
    No. 82-583.
    District Court of Appeal of Florida, Third District.
    Oct. 19, 1982.
    Taylor, Brion, Buker & Greene, Miami, and James C. Pilkey, Miami, for appellant.
    Steel, Hector & Davis and Norman A. Coll, Miami, for appellee.
    Before BARKDULL, SCHWARTZ and JORGENSON, JJ.
   PER CURIAM.

We reverse the order of the trial court granting Florida Power & Light’s motion to dismiss Oliva’s first amended complaint for failure to state a cause of action since it is apparent from this record that the issue of foreseeability has been pled. Braden v. Florida Power & Light Co., 413 So.2d 1291 (Fla. 5th DCA 1982). See also Padgett v. West Florida Electric Cooperative, Inc., 417 So.2d 764 (Fla. 1st DCA).

We have examined each of the principal cases relied upon by appellee and conclude that, while not necessarily inapposite, their application is premature since all are based on summary judgment or post-trial proceedings.

In reaching this result, we take no view of the merits of this litigation and hold merely that plaintiff is entitled to an answer and to make discovery based on the allegations in the first amended complaint. See, e.g., Simon v. Tampa Electric Company, 202 So.2d 209 (Fla. 2d DCA 1967).

Reversed and remanded for further proceedings.


text:
    James ACEVEDO, as Father and Natural Guardian for Joseph A. Acevedo, Appellant, v. CITY OF MIAMI, a municipal corporation, Appellee.
    No. 82-1149.
    District Court of Appeal of Florida, Third District.
    Oct. 19, 1982.
    Lawrence M. Malman, for appellant. Lanza, Sevier & Womack, Coral Gables, and Judith Bass, Miami, for appellee.
    Before HENDRY, SCHWARTZ and DANIEL S. PEARSON, JJ.
   PER CURIAM.

Affirmed. Jenkins v. City of Miami Beach, 389 So.2d 1195 (Fla. 3d DCA 1980); Fla.R.Civ.P. 1.140(h)(2).


author: GLICKSTEIN, Judge.

text:
    Roy Lee EPPS, Petitioner, v. Louie L. WAINWRIGHT, Director, Division of Corrections, State of Florida, Respondent.
    No. 82-1174.
    District Court of Appeal of Florida, Fourth District.
    Oct. 20, 1982.
    Alan H. Schreiber, Public Defender, and Steven Michaelson, Asst. Public Defender, Fort Lauderdale, for petitioner.
    Jim Smith, Atty. Gen., Tallahassee, and Robert L. Bogen, West Palm Beach, for respondent.
   GLICKSTEIN, Judge.

Petitioner seeks a writ of habeas corpus to obtain delayed appellate review. The circumstances are identical to those in Potts v. Wainwright, 413 So.2d 156 (Fla. 4th DCA 1982) (on motion for rehearing). In both cases the public defender failed to file a timely notice of appeal; and by unpublished order, this court dismissed the appeal as untimely. In Potts, we granted the petition for writ of habeas corpus and permitted the matter to proceed as a delayed appeal; and we do the same herein.

We take note, however, that in Polk County v. Dodson, - U.S. -, 102 S.Ct. 445, 70 L.Ed.2d 509 (1981), the court held:

With respect to Dodson’s § 1983 claims against Shepard, we decide only that a public defender does not act under color of state law when performing a lawyer’s traditional functions as counsel to a defendant in a criminal proceeding.

Id. at 453 (footnote omitted). As a result, our sister court, in Meyer v. State, 415 So.2d 70 (Fla. 5th DCA 1982), while granting a like petition under similar circumstances, certified the following questions to the supreme court as being of great public importance:

A. IN THE LIGHT OF THE DECISION IN POLK COUNTY v. DODSON, - U.S.-, 102 S.Ct. 445, 72 [sic] L. Ed.2d 509 (1981), IS STATE ACTION INVOLVED IN THE FAILURE OF A PUBLICLY APPOINTED LAWYER TO FILE A TIMELY NOTICE OF APPEAL ON BEHALF OF THE CONVICTED DEFENDANT, SO AS TO ENTITLE THE DEFENDANT TO BELATED APPELLATE REVIEW BY PETITION FOR HABEAS CORPUS?
B. IN THE LIGHT OF THE DECISION IN POLK COUNTY v. DODSON, - U.S.-, 102 S.Ct. 445, 72 [sic] L. Ed.2d 509 (1981), IS STATE ACTION INVOLVED IN THE FAILURE OF A PRIVATELY RETAINED LAWYER TO FILE A TIMELY NOTICE OF APPEAL ON BEHALF OF THE CONVICTED DEFENDANT, SO AS TO ENTITLE THE DEFENDANT TO BELATED APPELLATE REVIEW BY PETITION FOR HABEAS CORPUS?

Deeming the two questions to be of the same significance as did our sister court, we herewith certify them as well.

DELL and WALDEN, JJ., concur,

      . In this case, Epps v. State, No. 82-82 (Fla. 4th DCA Feb. 10, 1982) (order dismissing appeal as untimely).


text:
    STATE of Florida, Appellant, v. Chris SCOTTI, Appellee.
    No. 81-1523.
    District Court of Appeal of Florida, Fourth District.
    Oct. 20, 1982.
    Jim Smith, Atty. Gen., Tallahassee, and Trela J. White, Asst. Atty. Gen., West Palm Beach, for appellant.
    No appearance by appellee.
   PER CURIAM.

We treat the instant notice of appeal as a petition for writ of certiorari. Having done so and considered the merits of same, said petition is denied.

DENIED.

ANSTEAD, HURLEY and WALDEN, JJ., concur.


author: GRIMES, Judge.

text:
    Theodore D. AYLWARD, Appellant, v. Gail P. AYLWARD, Appellee.
    Nos. 81-1398, 81-1832.
    District Court of Appeal of Florida, Second District.
    Oct. 20, 1982.
    Stephen W. Sessums of Albritton, Ses-sums & McCall, Tampa, for appellant.
    Ann Loughridge Kerr, Tampa, for appel-lee.
   GRIMES, Judge.

The husband appeals from a judgment of dissolution which awarded the wife $3,500 per month in permanent periodic alimony and $2,000 per month in child support. The judgment also awarded the wife $150,000 in lump sum alimony payable over nine equal annual installments. As further lump sum alimony, the court granted to the wife the husband’s totally owned interest in a $25,-000 sailboat and the husband’s one-half interest in the marital home. The husband’s one-half interest in the equity of the home was worth $87,500.

The parties were married in 1965 while the husband was in medical school. At the outset, the wife worked as a nurse thereby providing some financial assistance to the husband while he was finishing school. The wife now stays home taking care of the parties’ four minor children. Both parties are in good health. The husband has established a very successful medical practice. By working long hours as a surgeon, he had earned $404,000 in the year which preceded this dissolution action. Under these circumstances, the liberal provisions for permanent periodic alimony and child support were justified.

In ordering the lump sum alimony, the court was apparently seeking to equitably divide the parties’ assets into shares of approximately equal value. Since none of these assets were acquired outside of the marital relationship, such a procedure is permissible under the rationale of Canakaris v. Canakaris, 382 So.2d 1197 (Fla.1980). See Rosen v. Rosen, 386 So.2d 1268 (Fla. 3d DCA 1980). The wife’s investigative auditor expressed his opinion that the parties’ net worth was $953,157. Certain discrepancies in this testimony suggest that the valuation was too high. However, the trial judge seemed to take this into consideration when he found that the net worth of the parties was “in excess of $800,000,” and by ordering a division of assets in line with the latter figure. Therefore, we cannot say that the court abused its discretion in making the lump sum alimony awards.

There is one additional point to be considered. After the final judgment, the court held the husband in contempt for failure to make certain payments. Included among these arrearages was $584 in temporary support which the husband had failed to pay before the entry of the final judgment. This was a matter which should have been brought up at the final hearing. Because the final judgment makes no reference to this matter, the wife cannot now seek to enforce compliance with the temporary order. See Duss v. Duss, 92 Fla. 1081, 111 So. 382 (1926); Rankin v. Rankin, 275 So.2d 283 (Fla. 2d DCA 1976). Cf. Keller v. Keller, 302 So.2d 795 (Fla. 3d DCA 1974), in which as part of the final judgment the court reduced to judgment the arrearages from prior orders for temporary relief.

We affirm the judgment of dissolution. Except as set forth above, the order of contempt is also affirmed.

BOARDMAN, A.C.J., and DANAHY, J., concur.

      . For example:
      (1) Inclusion of $152,346 of accounts receivable without making any reduction for bad debts when the evidence showed that the husband never collects at least one third of his accounts.
      (2) Making no allowance for the income tax liability applicable to such portion of the accounts receivable as would be collected.
      (3) Ignoring the income tax liability on monies collected in the past year.
      (4) Treating the husband’s unvested profit sharing and pension plan as worth its face value despite the fact that the money can only be obtained, without adverse tax consequences, by waiting until retirement.
      (5) Considering an $80,000 irrevocable ten year Clifford trust established for the children at its face value rather than at its present value even though the principal will not revert to the husband until the trust terminates.
      (6) Estimating the value of a power boat simply by adding all of the prior payments made on the boat, including interest, to the amount which remained owing on the boat.


author: CAMPBELL, Judge.

text:
    FORT MYERS AIRWAYS, INC., Appellant, v. AMERICAN STATES INSURANCE COMPANY, Appellee.
    Nos. 81-2455, 82-16.
    District Court of Appeal of Florida, Second District.
    Oct. 20, 1982.
    Carolyn Pickard and John A. Murray of Thornton, David & Murray, Miami, for appellant.
    Edward R. Curtis and Richard S. Womble of Fertig & Curtis, P.A., Fort Lauderdale, for appellee.
   CAMPBELL, Judge.

These consolidated cases represent the second appeal arising from the January, 1977, crash of Herman Shaw’s Cessna 411 aircraft. In Fort Myers Airways, Inc. v. American States Insurance Co., 411 So.2d 883 (Fla. 2d DCA 1982), we held that Shaw’s flight instructor, Donald Varbonco-eur, was an insured under the policy written by American States for Shaw. We based our holding on the premise that “a flight instructor, giving instructions to the owner and insured of an airplane, is the agent or employee of the owner under an insurance policy which provides coverage to an agent or employee of the insured.” 411 So.2d at 884-85. Now, contending that it is also an agent or employee of the deceased, Fort Myers Airways, Inc. claims it should be treated as an insured under the American States’ policy. Prior to our decision in Fort Myers Airways, the trial court found that Fort Myers Airways is not an insured under this policy and entered summary judgment in favor of American States. This appeal followed.

In Fort Myers Airways, we concluded that Varboncoeur was an insured under the policy because Shaw’s direct control over Varboncoeur while they were airborne was sufficient to make Varboncoeur an agent or employee of Shaw for purposes of the insurance contract. That is not the case here, because the type and degree of control is not the same. Shaw had a contractual, business relationship with Fort Myers Airways that he could terminate at any time. But, he did not have the same degree of immediate control and direction over Fort Myers Airways that he had over Donald Varboncoeur. Therefore, for purposes of the insurance coverage provided by American States to Shaw and his agents or employees, Fort Myers Airways was not Shaw’s agent and entry of summary judgment in favor of American States was proper.

AFFIRMED.

BOARDMAN, A.C.J., and GRIMES, J., concur.