text:
    SHERWOOD MEDICAL INDUSTRIES and General Adjustment Bureau, Appellants, v. Geraldine WARD, Appellee.
    No. XX-11.
    District Court of Appeal of Florida, First District.
    April 22, 1981.
    J. Richard Boehm, of Haas, Boehm, Brown & Rigdon, Orlando, for appellants.
    Edward H. Hurt, of Hurt & Parrish, and Bill McCabe, of Shepherd, McCabe & Cooley, Orlando, for appellee.
   PER CURIAM.

The employer/carrier appeal from a worker’s compensation order awarding a fee of $17,000 to claimant’s attorney. We reverse.

The order does not reveal any factors which were considered in determining the amount of the fee; it merely states that the parties agreed that $17,000 was a reasonable fee. The record however does not support the finding that the parties stipulated to the amount of the fee. Appellee argues that the order can still be affirmed because the record shows the award is in accordance with the guidelines set forth in Section 440.34(1), Florida Statutes (1977), and the factors set forth in Lee Engineering and Construction Company v. Fellows, 209 So.2d 454 (Fla.1968). We disagree.

An order awarding attorney’s fees must indicate what factors were considered in determining the amount of the fee in order to comport with the requirements of Vargas v. American Bal Harbour, 345 So.2d 1052 (Fla.1976), and Pierce v. Piper Aircraft Corporation, 279 So.2d 281 (Fla.1973). Failure to sufficiently state the basis of the award requires reversal. State of Florida, Sunland Training Center at Miami v. Cald well, 388 So.2d 640 (Fla. 1st DCA 1980); Casings, Florida, Inc. v. Williams, 389 So.2d 705 (Fla. 1st DCA 1980); Manny's Dresses v. Arias, 390 So.2d 1241 (Fla. 1st DCA 1980).

In the present case, since there was no stipulation as to the amount of attorney’s fee, the deputy commissioner should have stated in the order what factors were considered in determining the amount of the fee. We do not rule on the merits of the attack on the amount of the attorney’s fee.

REVERSED and REMANDED for entry of a proper order.

MILLS, C. J., JOANOS, J., and WILLIAM C. OWEN, Jr., (Ret.), Associate Judge, concur.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    L. Patrick SULLIVAN, Appellant, v. Patricia Lee SULLIVAN, Appellee.
    No. YY-83.
    District Court of Appeal of Florida, First District.
    April 22, 1981.
    Daniel A. Naughton, Jacksonville, for appellant.
    Robert M. Barnes of Barnes & Barnes, P. A., Jacksonville, for appellee.
   PER CURIAM.

AFFIRMED

We grant appellee’s motion for an attorney’s fee under Fla.R.App.P. 9.400(b), and remand to the trial court to determine the amount of the fee to be awarded.

MILLS, C. J., SHAW, J., and TILLMAN PEARSON (Ret.), Associate Judge, concur.


text:
    Robert A. WHITE and Harriet N. White, Appellants, v. CITY OF FORT WALTON BEACH, FLORIDA, a municipal corporation, Appellee.
    No. YY-224.
    District Court of Appeal of Florida, First District.
    April 22, 1981.
    James M. Barton, II, and Louis K. Ro-senbloum, of Levin, Warfield, Middlebrooks, Mabie & Magie, Pensacola, for appellants.
    Walter J. Smith, of Smith, Grimsley, Remington, Kessler & Simpson, Fort Walton Beach, for appellee.
   PER CURIAM.

AFFIRMED on the authority of the “fairly debatable” judicial standard of review as set forth in City of St. Petersburg v. Aikin, 217 So.2d 315 (Fla.1968); Alachua County v. Reddick, 368 So.2d 653 (Fla. 1st DCA 1979); Davis v. Sails, 318 So.2d 214 (Fla. 1st DCA 1975).

MILLS, Chief Judge, SHAW, J., and TILLMAN PEARSON (Ret.), Associate Judge, concur.


author: COWART, Judge.

text:
    Udell Shirley STEVENS, Jr., Appellant, v. STATE of Florida, Appellee.
    No. 79-1703/T4-695.
    District Court of Appeal of Florida, Fifth District.
    April 22, 1981.
    Richard L. Jorandby, Public Defender, and Cathleen Brady, Asst. Public Defender, West Palm Beach, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Gregory C. Smith, Asst. Atty. Gen., Dayto-na Beach, for appellee.
   COWART, Judge.

This is an appeal from a revocation of probation based solely on a certified coy of a judgment of conviction of a subsequent crime. At the time of the revocation of probation the judgment of conviction had not been affirmed on appeal. Appellant claims the subsequent judgment of conviction was not final until affirmed on appeal and therefore was insufficient as the basis for revocation of probation, citing Ledee v. State, 342 So.2d 100 (Fla.3d DCA 1977).

Ledee relied on Joyner v. State, 158 Fla. 806, 30 So.2d 304 (1947), and State ex rel Volusia Jai-Alai, Inc. v. Board of Business Regulation of the Dept. of Business Regulation, 304 So.2d 473 (Fla. 1st DCA 1974). In both Joyner and State ex rel Volusia Jai-Alia, a valid final conviction was a prerequisite to the validity of the subsequent order; however, in a probation violation hearing the subsequent judgment of conviction is but evidence of the violation of the standard condition of probation that the probationer must “live and remain at liberty without violating any law.” A formal conviction of a.crime is not essential, Holt v. State, 385 So.2d 1133 (Fla. 5th DCA 1980), and even a plea of guilty to a subsequent criminal act has been held sufficient. Thomas v. State, 350 So.2d 568 (Fla.3d DCA 1977). Since a judgment of conviction is presumed to be correct until, reversed, the better and general rule is that a revocation of probation for a subsequent conviction is proper although the conviction is subject to appeal. Of course, if a revocation is based solely on a conviction and that conviction is subsequently reversed, the revocation must also be reversed. Plummer v. State, 365 So.2d 1102 (Fla. 1st DCA 1979).

For these reasons we decline to follow Ledee and recognize that this decision expressly and directly conflicts with it on the same question of law.

The order revoking probation is

AFFIRMED.

ORFINGER and COBB, JJ., concur.

      . It was affirmed in Stevens v. State, 383 So.2d 1156 (Fla. 5th DCA 1980).

      . Annot., 76 A.L.R.3d 588 (1977).

      . Art. V, § 3(b)(3), Fla. Const.; Fla.R.App.P. 9.030(a)(2)(A)(iv).


text:
    David Earl BABB, Appellant, v. STATE of Florida, Appellee.
    No. 79-185.
    District Court of Appeal of Florida, Fifth District.
    April 22, 1981.
    Richard L. Jorandby, Public Defender, and Larry S. Weaver, Asst. Public Defender, West Palm Beach, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Richard W. Prospect, Asst. Atty. Gen., Day-tona Beach, for appellee.
   PER CURIAM.

See Bassett v. State, 392 So.2d 1025 (Fla.5th DCA 1981).

AFFIRMED.

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


author: ORFINGER, Judge.

text:
    The BOEING COMPANY, a Foreign Corporation, Appellant, v. Jessee David MERCHANT and Flora Merchant, his wife, Appellees.
    No. 79-388.
    District Court of Appeal of Florida, Fifth District.
    April 22, 1981.

      James E. Glatt, Jr., of Gurney, Gurney & Handley, P. A., Orlando, for appellant.
    Karl 0. Koepke of Whitaker & Koepke, Orlando, for appellees.
   ORFINGER, Judge.

Appellant was successful in obtaining an order dismissing the cause for lack of prosecution. Appellees filed a motion for rehearing which was heard by another judge who determined that the first order was incorrect, so the motion for rehearing was granted, the first order was vacated, and the motion to dismiss for lack of prosecution was denied.

In this appeal from the non-final order, appellant contends that: (1) a successor judge has no authority to reverse, on rehearing, a final order entered by a prior judge on the same facts and issues; (2) in any event, the order. dismissing the cause for lack of prosecution was correct. We agree on both points and reverse.

A chronology of events is important to an understanding of the issues. Attorney La-Grone, on behalf of appellees, filed an action for damages against appellant. Thereafter, the following appears of record:

May 8, 1978 Motion for LaGrone to withdraw as counsel.
May 23, 1978 Order substituting Attorney Hurt as counsel, relieving LaGrone.
September 7, 1978 Motion for Hurt to withdraw as counsel; notice of hearing.
September 15, 1978 Order relieving Hurt; no counsel substituted.
September 25, 1978 Lien of LaGrone filed.
August 15, 1979 Sua sponte order of court setting hearing for October 5, 1979, to take appropriate action including dismissal without prejudice, as applicable.
September 24, Í979 Boeing motion to dismiss for failure to prosecute.
October 4, 1979 Notice of appearance of Attorney Koepke as counsel.
October 5, 1979 Order dismissing cause for failure to prosecute.

The sua sponte order of August 15, 1979 was a form order apparently used by the court to spur action, and on September 24, 1979, it was followed by appellant’s motion to dismiss for failure to prosecute. Judge Vann was the sitting judge on the date set for hearing and he entered an order dismissing the cause for failure to prosecute. Appellee’s new counsel filed a motion for rehearing contending that the order was incorrectly entered and noticed this motion for hearing. Judge Vann was not available on the date of the hearing, so it was heard by another judge who entered the order appealed from.

When a final order has been rendered, a second judge may not redecide the same cause; “[i]t is not the function of one trial judge to review another’s judgment.” Davis v. Fisher, 391 So.2d 810 (Fla. 5th DCA 1980).

A petition for rehearing which merely presents the same matters to a subsequent judge will not allow modification of the original order. In Groover v. Walker, 88 So.2d 312 (Fla.1956), the supreme court held

We take the proper rule to be that where a petition for rehearing, within its proper scope, presents a point which the chancellor overlooked or failed to consider, rendering a final decree inequitable or erroneous, then the successor chancellor, exercising the full jurisdiction of the court, may with propriety consider such petition and take such proper action upon it as could his predecessor who entered the decree. In such instances the successor’s consideration of the case may be said to be in continuation of and supplemental to that of his predecessor. However, where the petition for rehearing merely rear-gues the case oh points and facts found and considered in the prior hearing of the cause, then the petition for rehearing goes beyond its proper scope and it should be denied in any event, and if the chancellor who entered the decree has been succeeded, his successor. is without authority on such basis to reverse his predecessor .... In such cases, the errors suggested by the petition are matters of review on appeal rather than rehearing by the successor judge.

88 So.2d at 314-315. Thus, for example, a successor judge may not grant a new trial on the grounds that his predecessor incorrectly determined the amount of damages; defendant must seek appellate review. Better Construction, Inc. v. Camacho Enterprises, Inc., 311 So.2d 766 (Fla. 3d DCA 1975).

Appellee attempts to characterize Judge Vann’s October 5 dismissal as “interlocutory” because it does not state that the plaintiff “takes nothing” and defendant “go hence without day.” A dismissal of a cause of action is a final disposition which will support an appeal, although a dismissal for want of prosecution which does not involve an adjudication of the merits is not res judicata of the controversy. Gibbs v. Trudeau, 283 So.2d 889, 890 (Fla. 1st DCA 1973).

It is an abuse of discretion for a trial court to deny a motion to dismiss for lack of prosecution under Florida Rule of Civil Procedure 1.420(e), where there has been no affirmative activity in the case for a period of one year preceding the filing of the motion. Industrial Trucks of Florida v. Gonzalez, 351 So.2d 744 (Fla. 3d DCA 1977). The one-year period is determined by the filing date of the last action and the filing date of the action seeking dismissal. Shalabey v. Memorial Hospital of S. Broward Hospital District, 253 So.2d 712 (Fla. 4th DCA 1971). A court can initiate the action to dismiss under Rule 1.420(e); in determining the one-year period “it makes little difference whether an action to abate is commenced by a party or by the court.” Id., at 714.

From the record before us, when the sua sponte order of the court was entered on August 15, 1979, advising that it would consider, among other things, a dismissal of the cause without prejudice, more than one year had elapsed with no record activity calculated to hasten the suit to judgment. Gulf Appliance Distributors v. Long, 53 So.2d 706 (Fla.1951). The only activity shown on the record during that period was the substitution of counsel, which is not “activity” sufficient to preclude dismissal under Rule 1.420(e). Gulf Appliance Distributors v. Long; Industrial Trucks of Florida v. Gonzalez, 351 So.2d 744 (Fla. 3d DCA 1977). The filing of a charging lien by Attorney LaGrone similarly is not such action, nor is the sua sponte “prompting” order of the court, if we consider the motion to dismiss filed by appellant as the motion which prompted the order of dismissal.

The order appealed from is reversed with directions to reinstate the final order dismissing the cause for lack of prosecution.

REVERSED and REMANDED.

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

      . Fla.R.Civ.P. 1.420(e).

      . Order rendered August 15, 1979:
      This action will come on for hearing before the court on the 5 day of October. 1979. at 9:00 o’clock, A.M.. at which time the Court will take appropriate action, including any of the following as applicable:
      (1). Enter judgment, if on default.
      (2). Hold Final Hearing, if uncontested.
      (3). Dispose of pending motions.
      (4). Schedule pending matters for hearing.
      (5). Set for trial.
      (6). Dismiss without prejudice.


author: FRANK D. UPCHURCH, Jr., Judge. COWART, Judge,

text:
    Norval M. GUY, individually and as personal representative of the Estate of Tammy Doris Embrey, deceased, and State Farm Mutual Automobile Insurance Company, etc., Appellants, v. Jones Earl KIGHT, Sr., and Caroline D. Right, his wife, Appellees.
    No. 79-511.
    District Court of Appeal of Florida, Fifth District.
    April 22, 1981.

      Thomas G. Kane of Driscoll, Langston, Layton & Kane, P. A., Orlando, for appellants.
    Nicholas F. Tsamoutales, Palm Bay, of Horton, Perse & Ginsberg, Miami, and Nance, Cacciatore & Sisserson, Melbourne, for appellees.
   FRANK D. UPCHURCH, Jr., Judge.

This is an appeal from an amended order granting summary judgment in favor of appellees on the issue of settlement and a final judgment awarding them damages.

Appellees’ attorney sent two settlement demands to State Farm. The second demand offered to settle for policy limits but was conditioned on State Farm’s tender of these limits within twenty-one days of the date of the letter. Between December 5th and 8th, 1978, State Farm’s adjuster called to say the company would settle for policy limits but that because of a heavy work load, there might be a delay in issuing the drafts, which would be mailed “as soon as possible.” The State Farm representative in his affidavit contended that appellees’ attorney “approved this procedure.” The attorney’s affidavit contended that he had reiterated that the drafts had to be in his office by the twenty-first day.

The drafts did not arrive until December 14, 1978, three days after expiration of the twenty-one day period and one day after the instant suit was filed. State Farm answered alleging settlement. The trial court concluded that the affidavits did not reflect an issue of fact as to the settlement question and entered summary judgment finding that no settlement had occurred. Suit proceeded and the jury awarded substantial damages, many times in excess of the policy limits.

We have concluded that there was an issue of material fact as to whether there was a settlement and reverse for trial on this issue. Appellees, as the parties moving for summary judgment, were required to show that there exists no genuine issue as to any material fact and that they were entitled to judgment as a matter of law. Wills v. Sears Roebuck & Co., 351 So.2d 29 (Fla.1977). The proof must be such as to overcome all reasonable inferences which may be drawn in favor of the opposing party. Holl v. Talcott, 191 So.2d 40 (Fla.1966). While the statement of State Farm’s adjuster that appellees’ attorney “approved this procedure” is imprecise, it raises a reasonable inference that the attorney agreed to a delay.

REVERSED and REMANDED for trial on the settlement issue.

ORFINGER, J., concurs.

COWART, J., dissents with opinion.

COWART, Judge,

dissenting:

An attorney representing the victim of a negligent insured sent a demand letter to the insurer dated November 20, 1978, offering to settle but stating that if the insurer did not “tender” the policy limits within 21 days of the date of the letter (being December 11, 1978), the offer to settle would be withdrawn. A certain telephone conversation between the attorney and the insurer’s adjuster occurred between December 5th and 8th. The attorney filed suit on December 13th and on December 14th received by mail settlement drafts dated December 12th. The insurer pleaded settlement and both parties moved for summary judgment on the settlement issue. The insurer filed the adjuster’s affidavit and the plaintiff filed the attorney’s affidavit and deposition.

The attorney’s demand letter constituted an offer to enter into a unilateral contract. This offer could only be accepted by the offeree’s performance of the act proposed in the offer, i. e., the “tender” of the policy limits. Furthermore, by the express terms of the offer, the tender had to be within 21 days of the date of the letter for a binding contract to result. There is no dispute but that the tender took place after the time allotted in the letter had expired, so the only question presented is whether, in the telephone conversation, the attorney orally modified his written settlement offer and extended the original time limitation.

In his affidavit and deposition the attorney states that in the telephone conversation the adjuster had stated that authority to settle had been received and that the settlement drafts would be in the mail that day; that the attorney reiterated that the drafts had to be in the attorney’s office by the 21st day (December 11, 1978) and the adjuster did not request an extension of time nor did the attorney approve an extension of time. The adjuster’s affidavit was that the adjuster advised the attorney that the insurer would pay policy limits and that the adjuster stated that “because the end of the year was approaching, there was a heavy workload but that I would be issuing the drafts as soon as possible. Attorney Sisserson acknowledged and approved of this procedure.” These are the only two witnesses to the telephone conversation which is the entire factual event in question. Should the adjuster’s vague claim that the attorney “approved this procedure” defeat the plaintiff’s motion for summary judgment? The answer should be “no” for several reasons.

First, the word “procedure” means a particular way of accomplishing something or of acting and does not relate to “when” or time. Unless we unnecessarily ascribe to it a broad general inference all it means, in context, is that the attorney approved the adjuster issuing the drafts “as soon as possible.” The adjuster’s and the attorney’s affidavits and depositions are not in conflict and should not be construed to be in conflict. The adjuster never states that the attorney extended the final date for acceptance of his written settlement offer and the attorney’s recollection that the adjuster said the drafts would “be in the mail that day” is consistent with the adjuster’s recollection that the drafts would be issued “as soon as possible.” Also, the attorney’s approval “of this procedure” is consistent with his original demand letter and with the drafts being issued “as soon as possible” and put “in the mail that day,” subject only to mail posted on December 5th or 8th being delivered on or before December 11th, all of this is consistent with the original demand letter and with the conclusion that there was no modification of the original written offer. There is no conflict between the assertions of the two affiants. The conflict is between the parties as to the effect of the words spoken.

Secondly, the trial court could have correctly disregarded the adjuster’s statement that the attorney “approved this procedure” as being conclusional and insufficient to controvert the attorney’s clear testimonial evidence that he did not extend the time limitation in his offer. Statements, which are contained in affidavits, in order to be considered on a motion for summary judgment, must be of such evi-dentiary value that they would be admissible at trial. Therefore, the affidavit may not be based upon factual conclusions or conclusions of law or merely allege ultimate facts.

Thirdly, by the customary use of general verdicts in jury trials juries not only do their basic job of resolving conflicts in evi-dentiary factual disputes to “find” the true facts, but are also given the responsibility of applying to those facts the law as given to them by the court. This custom should not mean that when, as here, all of the material evidentiary facts are given by affidavit and deposition and the dispute is not as to, or between, the evidentiary facts but is as to their legal competency, admissibility, or meaning and effect, that the court cannot by legal analysis determine the legal question presented on summary judgment much as, on a law examination, a law student considers the legal effect of a given set of facts. The sole question was whether, in the telephone conversation, the attorney modified the time limitation contained in his written settlement offer. The trial court should be permitted to accept as true the versions of both affiants and resolve the case as a matter of law after determining the legal significance, if any, of the entire telephone conversation.

Fourthly, even if one sees conflict in the testimony of the parties to the telephone conversation, that conflict is not necessarily one to be resolved by a jury on the basis of credibility and probability as is usual when there are irreconcilable conflicts between inconsistent evidentiary facts. This is because, in disputes as to the formation of contractual relationships, differences in understanding between the parties can itself have a special legal significance as indicating the lack of mutual assent or the absence of a meeting of the minds between the parties. The trial judge’s case citations suggest that he deliberated this proposition in reaching his decision. The trial judge did not have to go this far in his legal reasoning because mutual assent or an agreement between the two parties is not involved. Only the attorney’s unilateral offer is involved. He did not have to make a settlement offer in the first place. There was no consideration for his promise. He could withdraw it at any time before it was accepted. Only the attorney could modify his offer and he could modify it without any consent or agreement by the adjuster. Conversely, no acts or words of the adjuster could modify the attorney’s offer or extend the time for its acceptance.

Finally, the presumption of correctness with which judgments and orders of the trial court reach an appellate court applies to orders granting summary judgments and should be given weight.

For the reasons given I would affirm the trial court’s order granting the plaintiff’s motion for summary judgment on the defendant’s affirmative defense of settlement.

      . The trial judge held that willingness, readiness and ability do not constitute a tender, citing Kreiss Potassium Phosphate Co. v. Knight, 98 Fla. 1004, 124 So. 751 (1929), hence the attorney’s written settlement offer could not be accepted over the telephone but only by the actual offer or delivery of settlement drafts. The trial judge also ruled that the retention of the settlement drafts, as evidence of their belated delivery, did not create an executed unilateral contract.

      . All witnesses are presumed to speak the truth. Indulgence in this presumption casts a duty on all men of good will, judges and jurors alike, to construe and reconcile spoken and written words so as to avoid conflict between witnesses whenever it is possible and reasonable to do so. See Florida Standard Jury Instructions in Criminal Cases 2.13(a).

      . Humphrys v. Jarrell, 104 So.2d 404 (Fla. 2d DCA 1958).

      . Food Fair Stores, Inc. v. Trusell, 131 So.2d 730 (Fla.1961); Garwood v. The Equitable Life Assurance Society of the United States, 299 So.2d 163 (Fla. 3d DCA 1974); Stringfellow v. State Farm Fire & Casualty Co., 295 So.2d 686 (Fla. 2d DCA 1974).

      . Hurricane Boats, Inc. v. Certified Industrial Fabricators, Inc., 246 So.2d 174 (Fla. 3d DCA 1971); O’Brian Associates of Orlando, Inc. v. Tally, 184 So.2d 202 (Fla. 4th DCA 1966).

      . Lake v. Konstantinu, 189 So.2d 171 (Fla. 2d DCA 1966).

      . Rather than merely having the jury determine the true evidentiary facts by special verdict, to avoid the troublesome process of analysis, it is easier just to make them also determine the ultimate facts and legal conclusion as well after they are “doused with a kettleful of law, during the charge, that would make a third-year law student blanch.” Green Springs, Inc. v. Calvera, 239 So.2d 264, 266 (Fla.1970).

      . “The making of a contract depends not on the agreement of two minds in one intention, but on the agreement of two sets of external signs — not the parties having meant the same thing, but on their having said the same thing.” Gendzier v. Bielecki, 97 So.2d 604, 608 (Fla.1957). See also Kendel v. Pontious, 261 So.2d 167 (Fla.1972).

      . Bullock v. Harwick, 158 Fla. 834, 30 So.2d 539 (Fla.1947); Strong & Trowbridge Co. v. H. Barrs & Co., 60 Fla. 253, 54 So. 92, 93 (Fla.1910).

      . The filing of suit before receipt of the settlement drafts constituted a withdrawal of the settlement offer. A “tender” of the drafts was not accomplished by mailing them. They were received after suit was filed.

      . See Coffman Realty, Inc. v. Tosohatchee Game Preserve, Inc., 381 So.2d 1164 (Fla. 5th DCA 1980); Protective Nat’l Ins. Co. of Omaha v. Bergouignan, 335 So.2d 871 (Fla. 3d DCA 1976).


author: FRANK D. UPCHURCH, Jr., Judge.

text:
    Mary Ann CHRISTOPHER, Appellant, v. STATE of Florida, Appellee.
    No. 80-611.
    District Court of Appeal of Florida, Fifth District.
    April 22, 1981.
    Leon B. Cheek, III, Altamonte Springs, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Phillip D. Havens, and James Dickson Crock, Asst. Attys. Gen., Daytona Beach, for appellee.
   FRANK D. UPCHURCH, Jr., Judge.

Appellant appeals from a judgment and sentence for grand theft.

Appellant was charged on October 22, 1979 with an information labeled “Grand Theft,” but which charged the theft of merchandise of a value less than one hundred dollars. On November 27, 1979, the state filed a notice of intent to prosecute as a subsequent offender pursuant to section 812.014(2)(c), Florida Statutes (1979). On December 10, 1979, appellant tendered a plea to the offense of “attempted” grand theft. After advising appellant of the nature of the plea, the court accepted her plea, not as tendered to the offense of “attempted” grand theft, but to the offense of grand theft. On June 2, 1980, the court denied appellant’s motion for correction of an illegal sentence.

The question raised by this appeal is whether the trial court had jurisdiction of the offense charged in the information. We find that the trial court did not have jurisdiction and REVERSE.

A misdemeanor not arising out of the same circumstances as a felony which is also charged is cognizable only in county court. Art. V, §§ 5(b) and 6(b), Fla.Const.; §§ 26.012(2) and 34.01, Florida Statutes (1979). If the information charges only the misdemeanor, the circuit court does not have jurisdiction and thus any judgment or sentence rendered by it is void. Radford v. State, 360 So.2d 1303 (Fla. 2d DCA 1978); Waters v. State, 354 So.2d 1277 (Fla. 2d DCA 1978); Dicaprio v. State, 352 So.2d 78, 79 (Fla. 4th DCA 1977), cert. denied, 353 So.2d 679 (Fla.1977); Pope v. State, 268 So.2d 173 (Fla. 2d DCA 1972), cert. dismissed, 283 So.2d 99 (Fla.1973). The burden of properly invoking the court’s jurisdiction is on the state. See, e. g., Pope at 176.

The state contends that the use of the word “less” instead of “more” is a mere typographical error. The state notes that no challenge to the jurisdiction of the circuit court appears on the record. See Fuller v. State, 159 Fla. 200, 31 So.2d 259 (1947); La Barbara v. State, 150 Fla. 675, 8 So.2d 662 (1942). The question whether the court has subject matter jurisdiction involves a claim of fundamental error and can be raised at anytime, even for the first time on appeal. Waters; Dicaprio. Nor did appellant waive the defect by pleading guilty; the tender of a guilty plea does not foreclose the right to appeal the lack of subject matter jurisdiction. Robinson v. State, 373 So.2d 898 (Fla.1979).

The state also argues that even if the information charges only a misdemeanor, events occurring after the filing of the information constituted a “tacit amendment” sufficient to give the court jurisdiction. However, the number of discrepancies and confusion in the plea proceedings negate the state’s contention that appellant consented, tacitly or otherwise, to any amendment of the pleadings. For example, the trial judge informed appellant that the charge against her was that of grand theft but then defined the charge as the theft of merchandise valued at less than $100. Defense counsel apparently advised appellant and then tendered on her behalf a plea of guilty to “attempted” grand theft, which is a non-existent crime, Miles v. State, 374 So.2d 1167 (Fla. 2d DCA 1979), but the court accepted the plea of guilty to grand theft.

If the proper procedure is followed, a felony petit theft charge is sufficient to vest jurisdiction in the circuit court. In State v. Harris, 356 So.2d 315 (Fla.1978), the supreme court upheld the constitutionality of section 812.021(3), Florida Statutes (1977) which provided that upon the third or subsequent conviction of petit larceny, the offender shall be guilty of a felony. Section 812.021(3) is identical to the present section 812.014(2)(c) with the exception that the word “theft” has replaced “larceny.” Had the state moved to amend the information as it should have .done, the substantive offense of felony petit theft would have vested jurisdiction in the circuit court. Not only did the state fail to amend the information, but the proceedings were lacking the safeguards that Harris mandates.

The judgment and sentence is REVERSED.

DAUKSCH, C. J., and ORFINGER, J., concur.


author: PER CURIAM. FRANK D. UPCHURCH, Jr., Judge,

text:
    In the Interest of C. D. S., a Child, Appellant, v. STATE of Florida, Appellee.
    No. 80-642.
    District Court of Appeal of Florida, Fifth District.
    April 22, 1981.

      James B. Gibson, Public Defender, and Christopher S. Quarles, Asst. Public Defender, Daytona Beach, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Edwin H. Duff, III, Asst. Atty. Gen., Day-tona Beach, for appellee.
   PER CURIAM.

AFFIRMED.

DAUKSCH, C. J., and COWART, J., concur.

FRANK D. UPCHURCH, Jr., J., dissents with opinion.

FRANK D. UPCHURCH, Jr., Judge,

dissenting:

I respectfully dissent. Appellant appeals from an order adjudging him to be delinquent. The order provided that the child be placed in a state institution unless he participates in the Teen Challenge Program for one year.

On the way to a pool hall a group of persons threw some stones at appellant and five friends. Later, upon leaving the pool hall, they were again menaced by the same group estimated at twenty to forty persons in size. They were concerned for their safety. Appellant had a shotgun in his truck. He took it out in full view of the threatening group, loaded it and handed it to one of his friends in the back of the truck. They proceeded to leave the area but as they did so the group began hurling stones, some of which hit the truck. The boy with the shotgun fired striking one person. Appellant was adjudicated guilty of aggravated battery as an aider or abettor. § 777.011, Florida Statutes (1979).

Before a defendant may be convicted as a principal in the first degree as an aider and abettor, his intent to participate in the crime must be established. Pack v. State, 381 So.2d 1199 (Fla. 2d DCA 1980); J. H. v. State, 370 So.2d 1219 (Fla. 3d DCA 1979); Fisher v. State, 365 So.2d 1055 (Fla. 4th DCA 1978). A defendant does not have to intend to participate in the crime committed. Beasley v. State, 360 So.2d 1275 (Fla. 4th DCA 1978). Rather, he must only have some criminal intent. Davis v. State, 275 So.2d 575 (Fla. 1st DCA 1973), or an initial criminal design. Hampton v. State, 336 So.2d 378 (Fla. 1st DCA 1976).

Since intent is often not subject to direct proof, it is usually established by circumstantial evidence. Where the evidence is purely circumstantial, it must be consistent with guilt and inconsistent with any reasonable hypothesis of innocence. Pack v. State; McWatters v. State, 375 So.2d 624 (Fla. 4th DCA 1979).

The boy who fired the shot testified that he did not intend to hit anyone but wanted to fire in the air to scare the crowd into leaving them alone. Whether that testimony is true is not controlling. The question for the court below was whether there was an intent by appellant to participate in the crime. Although appellant loaded the gun and handed it to the boy who fired it, there was absolutely no evidence to show that he intended that it be used for anything other than to defend them. Appellant and his friends clearly had reason to be apprehensive.

A principal in the first degree must have a specific intent to participate in a crime before there can be liability for the crime committed. Pack v. State; J. H. v. State; Fisher v. State; Beasley v. State. Unless it is a crime to arm oneself in the face of overwhelming odds under circumstances which constitute a real and present threat to personal safety, no offense was committed here. There was no evidence that appellant intended for his companion to use the weapon other than in a defensive posture.

I would REVERSE.


text:
    In the Interest of G.A.F., a child, Appellant, v. STATE of Florida, Appellee.
    No. 80-674.
    District Court of Appeal of Florida, Fifth District.
    April 22, 1981.
    James B. Gibson, Public Defender, James R. Wulchak, Chief, Appellate Division, Asst. Public Defender, and Thomas R. Mott, Asst. Public Defender, Daytona Beach, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, Edward M. Chew and C. Michael Barnette, Asst. Attys. Gen., Daytona Beach, for ap-pellee.
   PER CURIAM.

The finding of delinquency against the appellant, a juvenile, is reversed and remanded for a new trial because the record fails to show an adequate offer of counsel at the adjudicatory hearing or an intelligent and understanding waiver as required by Florida Rule of Juvenile Procedure 8.290(d)(2). See R.V.P. v. State, 395 So.2d 291 (Fla. 5th DCA 1981).

REVERSED and REMANDED for new trial.

DAUKSCH, C.J., and ORFINGER and FRANK D. UPCHURCH, Jr., JJ., concur.


text:
    Todd LONG, a minor, by and through his mother, and next friend, Lona T. Long, and Lona T. Long, individually and as Administratrix of the Estate of George E. Long, Deceased, Appellants, v. The CESSNA AIRCRAFT COMPANY, a Kansas Corporation et al., Appellees.
    No. 80-741.
    District Court of Appeal of Florida, Fifth District.
    April 22, 1981.
    Howard M. Berstein, of Lane, Mitchell & Harris, P. A., Miami, for appellants.
    Neal P. Pitts of Pitts, Eubanks & Ross, P: A., Orlando, for appellees.
   PER CURIAM.

AFFIRMED on the authority of Landers v. Milton, 370 So.2d 368 (Fla.1979).

DAUKSCH, C. J., and COBB and OR-FINGER, JJ., concur.


author: COBB, Judge.

text:
    Charles Michael CAPO, Appellant, v. STATE of Florida, Appellee.
    No. 80-787.
    District Court of Appeal of Florida, Fifth District.
    April 22, 1981.
    James B. Gibson, Public Defender, James R. Wulchak, Chief, Appellate Division, Asst. Public Defender, and Thomas Mott, Certified Legal Intern, Daytona Beach, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Edwin H. Duff, III, Asst. Atty. Gen., Day-tona Beach, for appellee.
   COBB, Judge.

Appellant was charged with uttering a forged instrument in violation of section 831.02, Florida Statutes (1977). He pled guilty pursuant to the" terms of a plea bargain. His plea was accepted and he was sentenced to five years imprisonment.

Appellant has appealed the judgment and his sentence. Prior to the appeal, he did not file any post-conviction motions. We dismiss the appeal of the judgment pursuant to Robinson v. State, 373.So.2d 898 (Fla.1979); Wallace v. State, 394 So.2d 225 (Fla. 5th DCA 1981); and Counts v. State, 376 So.2d 59 (Fla.2d DCA 1979). We affirm the sentence.

DISMISSED in part; AFFIRMED in part.

SHARP and COWART, JJ., concur.


text:
    Bertha Miller IVANHOE, Appellant/Cross Appellee, v. James IVANHOE, Appellee/Cross Appellant.
    No. 80-1068.
    District Court of Appeal of Florida, Fifth District.
    April 22, 1981.
    Berrien Becks, Jr. of Becks, Becks & Wickersham, Daytona Beach, for appellant/cross appellee.
    Garrett L. Briggs and Isham W. Adams of Adams & Briggs, Daytona Beach, for appellee/cross appellant.
   FRANK D. UPCHURCH, Jr., Judge.

Appellant/wife appeals from a final judgment dissolving the marriage and upholding an antenuptial agreement. Appel-lee/husband cross-appeals an award of permanent alimony.

We find there was substantial, competent evidence to sustain the trial court’s decision to uphold the agreement and AFFIRM. The question raised by the cross-appeal presents us with a more difficult question.

The agreement contained a provision which obligated the husband to pay the wife the sum of $10,000. The trial judge found that this was, in effect, the payment “for, or instead of, support, maintenance or alimony,” and that there had been a significant change in circumstances. Therefore, husband should be required to pay permanent alimony. We reluctantly disagree and REVERSE.

The agreement clearly stated, “the sum of ($10,000) Dollars as a settlement in fall of any and all rights and interest resulting from the marriage, including alimony . . .. ” (Emphasis added.)

A party, by agreement, may waive all right to alimony. Kirkconnell v. Kirkconnell, 222 So.2d 441 (Fla.2d DCA 1969). The language of this agreement clearly designated the $10,000 as settlement in full of all rights to alimony. We therefore reverse the portion of the judgment requiring payment of permanent alimony.

AFFIRMED in part, REVERSED in part.

ORFINGER and COBB, JJ., concur.


author: DAUKSCH, Chief Judge.

text:
    ORANGE COUNTY, FLORIDA, a political subdivision of the State of Florida, and Ed Mason, as Chairman of the Board of County Commissioners of Orange County, on behalf of the citizens and consumers of Orange County, Florida, Appellants, v. GAME AND FRESH WATER FISH COMMISSION, Appellee.
    No. 81-29.
    District Court of Appeal of Florida, Fifth District.
    April 22, 1981.

      Philip H. Trees, of Gray, Adams, Harris & Robinson, P. A., Orlando, for appellants.
    Jim Smith, Atty. Gen., and Thomas R. Tedcastle, Asst. Atty. Gen., Tallahassee, for appellee.
   DAUKSCH, Chief Judge.

This is an appeal concerning the adoption of a rule by the Florida Game and Fresh Water Fish Commission (hereafter called “commission”) which provided for a limited hunt of wild hogs and deer in the Tosohat-chee Wildlife Management Area (hereafter called “Tosohatchee Preserve”) in Orange County. We find that neither of the appellants was a party to the rulemaking proceeding in the lower tribunal and that neither is able to appeal this agency action to this court at this time.

The commission adopted rule 39-15.06 (hereafter called “rule”) on December 4, 1980, which allowed hunting in the Tosohat-chee Preserve. When the commission adopted this rule it acted as a lower tribunal. See Fla.R.App. P. 9.020(d). The adoption of the rule constituted “agency action” which is reviewable by the district court of appeal. Sec. 120.68(2), Fla.Stat. (1979). Fla. Admin. Com’n v. Dist. Court of Appeal, 351 So.2d 712 (Fla.1977). However, this review is limited to “[a] party adversely affected by final agency action . . . .” Sec. 120.68(1), Fla.Stat. (1979). The Administrative Procedure Act defines party in section 120.52(10), Florida Stat. (1979).

Appellants contend that the commission failed to provide notice to all parties of this rulemaking proceeding as required by section 120.54(l)(a), Florida Statutes (1979). It is claimed that Orange County had made a request for advance notice of any proceedings affecting the To-sohatchee Preserve. This request was made by means of a resolution adopted by the Board of County Commissioners of Orange County on March 9,1978, which stated that any proposed management plan for the To-sohatchee Preserve should be reviewed by the board. However, the record fails to show that this resolution was ever sent to any state official or agency. In the absence of such a showing, it cannot be found that the adoption of this March 9, 1978 resolution constituted a request for advance notice of any rulemaking proceedings affecting the Tosohatchee Preserve. Thus Orange County has not shown that it was entitled to advance notice of this section 120.54 rulemaking proceeding.

This means that Orange County was not a party to the section 120.54 rulemaking proceeding in the lower tribunal. The record also shows that Mr. Ed Mason, as Chairman of the Board of County Commissioners of Orange County, Florida, on behalf of the citizens and consumers of Orange County, Florida, was not a party in the lower tribunal. The Orange County Commission authorized Mr. Mason to represent the interests of the residents of Orange County in proceedings relating to the Tosohatchee Preserve on January 9, 1981. This authorization may cause Mr. Mason to be a party for future proceedings concerning the Toso-hatchee Preserve by reason of the provisions of section 120.52(10)(d), Florida Statutes (1979), but cannot operate to make him a party to the earlier rulemaking proceeding which had resulted in the adoption of the rule on December 4, 1980.

It is a fundamental principle of appellate law that appeal jurisdiction is only available to parties. Forcum v. Symmes, 101 Fla. 1266, 133 So. 88 (1931). In addition, the Administrative Procedure Act only provides for review of agency action by parties. Sec. 120.68, Fla.Stat. (1979). Since neither Orange County nor Ed Mason was a party in the lower tribunal, neither can maintain this appeal.

We have tried to consider this appeal as an application for any other proper relief. Fla.R.App.P. 9.040(c). However, we find that appellants have failed to exhaust their administrative remedies; therefore this court does not have subject matter jurisdiction. State, etc., v. Oyster Bay Estates, Inc., 384 So.2d 891, 895, n. 10 (Fla. 1st DCA 1980). See also Halifax Area Council v. City of Daytona Beach, 385 So.2d 184 (Fla. 5th DCA 1980); Brooks v. School Board of Brevard County, 382 So.2d 422 (Fla. 5th DCA 1980). This is because appellants may seek relief through a section 120.-56 proceeding: “Any person substantially affected by a rule may seek an administrative determination of the invalidity of the rule on the ground that the rule is an invalid exercise of delegated authority.” Sec. 120.56(1), Fla.Stat. (1979). This provision has been found to allow the challenge of existing rules. State, Dept. of Administration v. Stevens, 344 So.2d 290 (Fla. 1st DCA 1977).

If a section 120.56 proceeding fails to provide adequate relief, then relief should be sought in the circuit court. Gulf Pines Memorial Park v. Oaklawn Memorial, 361 So.2d 695 (Fla.1978); See State ex rel. Dept. of General Services v. Willis, 344 So.2d 580 (Fla. 1st DCA 1977); “[T]he Administrative Procedure Act does not and cannot displace circuit court jurisdiction to enjoin enforcement of facially unconstitutional agency rules.” 344 So.2d at 590. Rather the act only allows any party to seek review of final agency action. Sec. 120.68, Fla.Stat. (1979).

Since the appellants cannot appeal the commission’s action in this case because they were parties to that proceeding and the appellants have adequate administrative remedies, we do not have jurisdiction of this cause.

APPEAL DISMISSED-.

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

      . Sec. 120.52(2), Fla.Stat. (1979).

      . “Party” means:
      (a) Specifically named .persons whose substantial interests are being determined in the proceeding.
      (b) Any other person who, as a matter of constitutional right, provision of statute, or provision of agency regulation, is entitled to participate in whole or in part in the proceeding, or whose substantial interests will be affected by proposed agency action, and who makes an appearance as a party.
      (c) Any other person, including an agency staff member, allowed by the agency to intervene or participate in the proceeding as a party. An agency may by rule authorize limited forms of participation in agency proceedings for persons who are not eligible to become parties.
      (d)Any county representative, agency, department, or unit funded and authorized by state statute or county ordinance to represent the interests of the consumers of a county, when the proceeding involves the substantial interests of a significant number of residents of the county and the board of county commissioners has, by resolution, authorized the representative, agency, department, or unit to represent the class of interested persons. The authorizing resolution shall apply to a specific proceeding and to appeals and ancillary proceedings thereto, and it shall not be required to state the names of the persons whose interests are to be represented.


text:
    LOWEN AIR CONDITIONING, INC., Appellant, v. Michael B. SMALL et ux., Appellees.
    No. 79-900.
    District Court of Appeal of Florida, Fourth District.
    April 22, 1981.
    Daniel Jones and John A. Gentry, III of Moyle Gentry, Jones, Flanigan & Groner, P. A., West Palm Beach, for appellant.
    Michael B. Small of Small, Oakes, Vosko, Clark & Meyer, Palm Beach, for appellees.
   PER CURIAM.

Appellant seeks review of an order dismissing its complaint to foreclosure a mechanics lien for failure to prosecute the cause for a period in excess of one year. We reverse.

It appears that appellant, an air conditioning contractor, sued appellees to foreclosure a mechanics lien (Circuit Court Case No. 75-4191). During the course of the suit, appellant filed a notice of voluntary dismissal pursuant to Fla.R.Civ.P. 1.420(e). Shortly thereafter, appellant filed a second suit to foreclose the mechanics lien (Circuit Court Case No. 76-2505). While this second suit was pending, appellees filed a motion in the first case for allowance of attorneys fees and costs, pursuant to Fla.R.Civ.P. 1.420(d). While that motion was pending, the trial court entered an order in this, the second case, staying the second case until the court in the first case entered an order on the motion for attorneys fees and costs and until the order had been complied with. Eventually, on December 16, 1977, the trial court entered an order in the first case awarding appellees attorneys fees and costs.

The matter of attorneys fees and costs was litigated in the voluntarily dismissed action at both the trial and appellate levels. Small v. Lowen Air Conditioning, Inc., 350 So.2d 13 (Fla. 4th DCA 1977). The appel-lees also sought attorneys fees on appeal and were denied them by this Court on February 9, 1978. In the interim, the appellant moved the trial court to set the second case for trial. The appellees twice objected to the setting of a trial date because their attorneys fees and costs had not been determined in the first suit. Thus, the lower court entered its stay order in the second case on October 24, 1977.

On January 16, 1979, less than one year after the matter of attorneys fees and costs was finally resolved in the first case, appel-lees filed a motion to dismiss Circuit Court Case No. 76-2505 for lack of prosecution pursuant to Rule 1.420(e), on the grounds that the face of the record showed no activity by filing of pleadings, order of court, or otherwise, for a period of fourteen months. Appellant filed no response in writing before the hearing on the motion to dismiss. At the hearing on appellees’ motion, appellant argued, among other things, that this second case had been stayed by the order of October 24, 1977, which accounted for the lack, of prosecution. The trial court dismissed the cause and this appeal ensued.

Rule 1.420(e) requires the trial court to dismiss a cause where no activity appears on the face of the record for a period of one year unless the party moved against demonstrates in writing at least five days before the hearing on the motion to dismiss good cause for the absence of record activity. It does not suffice for counsel to file no written response and then argue good cause at the hearing. Shields v. Moore, 352 So.2d 139 (Fla. 4th DCA 1977). This is persuasive argument for affirmance; however, we cannot overlook the court’s order staying all proceedings. A party should not suffer dismissal of his cause of action on mere technicality when he has attempted to proceed, only to be faced with objection resulting in a court ordered stay.

Similarly, we are not impressed with the argument that our holding will allow a recalcitrant party to delay prosecution simply by failing to pay attorneys fees and costs in a related suit. In the first place, the question of liability for attorneys fees and costs was on appeal less than one year prior to appellees’ motion to dismiss. Secondly, the appellees could have sought relief from the trial court to compel payment within a time certain before moving to dismiss for failure to prosecute. This they did not do. In fact, they objected to appellant’s attempts to set the matter for trial without requesting such relief.

Although not raised by appellant, we note that appellees’ motion to dismiss was served upon appellants by mail on January 12, for a hearing on January 22. If mailing time is allowed pursuant to Fla.R.Civ.P. 1.090(e), there is hardly sufficient time to file good cause in writing not less than five days before the hearing.

In construing subsections (d) and (e) of Rule 1.420 together, we hold that when a second suit has been stayed awaiting assessment and payment of attorneys fees and costs by the plaintiff in the original case, and as a result of the stay pending assessment and payment of attorneys fees and costs, no record activity takes place in the second suit for over one year, the second suit is not subject to dismissal under Rule 1.420(e).

The trial court’s order of dismissal is reversed and this cause is remanded for further proceedings.

REVERSED and REMANDED.

DOWNEY, MOORE and HERSEY, JJ., concur.


text:
    Rosa Mae WALLACE, individually, and Linda Wallace, a minor, Appellants, v. ALLSTATE INSURANCE COMPANY, Appellee.
    No. 79-1952.
    District Court of Appeal of Florida, Fourth District.
    April 22, 1981.

      David T. Price of Price, Byrne & Trib-bett, Fort Lauderdale, for appellants.
    Christopher B. Knox of Burdick & Dona-hoe, Fort Lauderdale, for appellee.
   PER CURIAM.

Reversed on the authority of United States Fidelity & Guaranty Co. v. Curry, 395 So.2d 530 (Fla.1981) and Lezcano v. Leatherby Insurance Co., 372 So.2d 214 (Fla. 4th DCA 1979).

BERANEK and HERSEY, JJ., and SCHWARTZ, ALAN R., Associate Judge, concur.


text:
    In the Interest of S. W., A Child.
    No. 80-651.
    District Court of Appeal of Florida, Fourth District.
    April 22, 1981.
    Jim Smith, Atty. Gen., Tallahassee, and Joy B. Shearer, Asst. Atty. Gen., West Palm Beach, for appellant, State of Florida.
    James K. Green of Green & Eisenberg, West Palm Beach, for appellee, S.W.
   PER CURIAM.

AFFIRMED on the authority of Hearn v. State, 55 So.2d 559 (Fla.1951).

BERANEK, GLICKSTEIN and HURLEY, JJ., concur.


author: PER CURIAM. MOORE, Judge,

text:
    FIRST NATIONAL BANK OF BROWARD COUNTY, Appellant, v. Gerald A. LEWIS, as State Comptroller and Head of the Department of Banking and Finance, and First Bank of Hollywood Beach, Appellees.
    No. 80-866.
    District Court of Appeal of Florida, Fourth District.
    April 22, 1981.

      James 0. Murphy, Jr. and William C. Davell of English, McCaughan & O’Bryan, Fort Lauderdale, for appellant.
    Ira C. Hatch, Jr. of Hatch & Fenster, Plantation, for appellee — First Bank of Hollywood Beach.
    Walter W. Wood, Asst. General Counsel, Tallahasee, for appellees — Department of Banking and Finance and Gerald A. Lewis, Comptroller.
   ORDER RELINQUISHING JURISDICTION

PER CURIAM.

On April 25, 1980, the Honorable Gerald A. Lewis, Comptroller of Florida, in his capacity as head of the Department of Banking and Finance, issued a letter approving a bank name change from “First Bank of Hollywood Beach” to “First Bank of Broward.” We deem the letter to be final agency action sufficient to entitle an adversely affected party to judicial review. Krestview Nursing Home v. Department of Health and Rehabilitative Services, 381 So.2d 240 (Fla. 1st DCA 1979); Graham Contracting, Inc. v. Department of General Services, 363 So.2d 809 (Fla. 1st DCA 1978), appeal dismissed, 364 So.2d 892 (Fla.1978); Capeletti Brothers, Inc. v. Department of Transportation, 362 So.2d 346 (Fla. 1st DCA 1978), cert. denied, 368 So.2d 1374 (Fla.1979); Harris v. Florida Real Estate Commission, 358 So.2d 1123 (Fla. 1st DCA 1978), cert. denied, 365 So.2d 711 (Fla.1978). At the same time, we express our concern that the Comptroller’s letter of April 25th does not contain findings of fact and conclusions of law separately stated so as to facilitate meaningful appellate review. See Section 120.59(l)(c), Florida Statutes (1979). Prior to the letter’s issuance, the Department of Banking and Finance expressly authorized and received written material in opposition to the name change. This process constituted “informal proceedings” pursuant to Section 120.57(2), Florida Statutes (1979), and consequently, the agency’s order should have been drawn in compliance with Section 120.59(1). General Development Corp. v. Department of Administration, 353 So.2d 1199 (Fla. 1st DCA 1977).

There is an additional aspect to this case which further justifies our present action. At oral argument the parties stipulated that on November 1, 1980, appellant, First National Bank of Broward County, changed its name to The First Bankers. Ordinarily, a voluntary act of this nature, taken subsequent to the administrative action complained of and after the filing of a notice of appeal, would render the appeal moot. This result is avoided here only because appellant, which is a national bank and not subject to state approval for its own name change, initially advised the Comptroller of a possible name change and urged that appellee’s proposed name was too similar to both names. Furthermore, appellant advised the Comptroller that, at least to some degree, it was then using its subsequently adopted name. Appellant’s president stated:

[W]e are a wholly owned subsidiary of First Bankers Corporation of Florida and we utilize the generic name, “The First Bankers,” which is registered with the U. S. Patent Office.

Despite the foregoing, the record indicates that the Comptroller based his analysis and decision on appellant’s then-existing name. Thus, since appellant’s new name was not considered by the Comptroller at the time he approved the name change of First Bank of Hollywood Beach to First Bank of Bro-ward and inasmuch as appellant’s present name is integrally related to the matters passed upon by the Comptroller and now before this court, we believe the interests of justice require a relinquishment of jurisdiction. It is thereupon,

ORDERED that jurisdiction in this cause is herewith relinquished to the Office of the State Comptroller and the Department of Banking and Finance for a period of sixty (60) days from the rendition of this order so that appellant’s present name might be considered in the administrative decision making process. This action does not mandate a formal factfinding proceeding pursuant to Section 120.68(6), Florida Statutes (1979), but does require the Department of Banking and Finance, through appropriate informal proceedings, to take appellant’s present name into account. It is further,

ORDERED that upon the agency’s conclusion of its consideration of this matter, it shall prepare and enter an amended final order in accord with Section 120.59, Florida Statutes (1979), containing “findings of fact and conclusions of law separately stated.”

HURLEY, J., and G. KENDALL SHARP, Associate Judge, concur.

MOORE, J., dissents with opinion.

MOORE, Judge,

dissenting:

Although I appreciate the reasoning behind the majority’s order, I respectfully dissent. I would dismiss this appeal for lack of jurisdiction.

The facts are virtually undisputed. First Bank of Hollywood Beach requested the State Comptroller’s permission to change its name to First Bank of Broward. On February 15, 1980, the Comptroller published notice of the request in the Florida Administrative Weekly. The appellant responded to the notice by letter of March 3, 1980, objecting to the name change. In its letter, the appellant stated its reasons for objecting and concluded by stating:

For the reasons set forth above, we would like to register our strong opposition to the proposed name change. Please advise us as to the action taken on this application and the appeal process which we must follow should the name change be approved as requested.

No request was made for either a formal or informal hearing pursuant to Section 120.-57, Florida Statutes (1979). By letter of April 25,1980, the Comptroller granted the name change request “subject to submission of appropriate amendment to the bank’s Articles of Incorporation.” First National appeals from this letter and the majority apparently considers the letter as final agency action as that phrase is used in Chapter 120, Florida Statutes (1979). I disagree.

First National initially contends that it was misled by the notice contained in the Florida Administrative Weekly. While I find this contention difficult to understand, I also find it to be irrelevant. It was not presented to the Agency which has not had an opportunity to accept or reject it, and, if accepted, to take remedial action. As a reviewing Court, I find nothing to review. Surprisingly, appellant next contends that the agency action is not final. I agree. However, appellant says we should therefore remand this cause for a formal hearing, and the Comptroller agrees. Again, I reiterate that no hearing was ever requested by the appellant and I would adopt Judge Ervin’s language in City of Punta Gorda v. Public Emp. Relations, 358 So.2d 81, 82 (Fla. 1st DCA 1978), where he said:

We do not interpret Chapter 120 as requiring an agency to convene an unrequested formal hearing whenever it perceives the possibility of a disputed issue of material fact. Just as a litigant must request trial by jury, so must a substantially affected person affirmatively seek a 120.57(1) hearing.

Having failed to request a hearing, the appellant has waived any right thereto and should not be heard to complain now.

As I view Chapter 120, it provides for appellate review of final agency action when the agency performs a quasi-judicial act. It does not, and should not, under our tripartite system of government, provide for the review of day to day decisions of an executive agency, a category in- which I place the matter now before us.

. The appellant could have requested a hearing and if that request were denied, we would have jurisdiction to review the denial. If it were granted, we would have jurisdiction to review the decision which would contain findings of fact and conclusions of law. I frankly do not know how we review a letter, and by doing, so, we are exceeding our jurisdiction. I would therefore dismiss this appeal.

      . § 20.12, Fla. Stat. (1979).

      . April 25, 1980
      Martin J. Hasey, Esq.
      Hatch and Fenster
      Attorneys at Law
      Suite 307 The Gulfstream Building
      8751 West Broward Boulevard
      Plantation, Florida 33324
      Dear Mr. Hasey:
      Re: First Bank of Hollywood Beach Your request to change the corporate name of the subject bank to “First Bank of Broward” was noticed in the Florida Administrative Weekly on February 15, 1980. Formal opposition to use of that name was timely, filed by H. Eugene Nace, President, First National Bank of Broward County, on March 5, 1980.
      After fully considering all the facts, it is my opinion that “First Bank of Broward” is not so similar to “First National Bank of Broward County,” or any other bank name, to cause confusion, especially since the present name is already prefaced by “First Bank of.” Consequently, the request to change the bank name to “First Bank of Broward” has my approval, subject to submission of appropriate amendment to the bank’s Articles of Incorporation.
      Staff members in the Division of Banking will contact you to finalize the amendment documents for filing with the Department of State.
      Sincerely,
      /s/ GERALD A. LEWIS
      GAL:hmm
      cc Board of Directors — First Bank of Hollywood Beach
      Leonard L. Levenstein
      Federal Deposit Insurance Corporation, Atlanta, Georgia
      Miami Area Supervisor
      H. Eugene Nace
      Legal Division

      . See Section 120.57(2), Fla. Stat. (1979).


text:
    STATE of Florida, Appellant, v. David Walsh FAMIGLIETTI, Appellee.
    No. 80-1386.
    District Court of Appeal of Florida, Fourth District.
    April 22, 1981.
    Jim Smith, Atty. Gen., Tallahassee, and Joy B. Shearer, Asst. Atty. Gen., West Palm Beach, for appellant.
    Max P. Engel, Miami, for appellee.
   PER CURIAM.

This cause is remanded to the trial court with instructions to conduct an evidentiary hearing to determine whether defendant had a reasonable expectation of privacy in the area searched and thus, whether defendant had standing to contest the search and seizure within the dwelling. See Rawlings v. Kentucky, 448 U.S. 98, 100 S.Ct. 2556, 65 L.Ed.2d 633 (1980); United States v. Salvucci, 448 U.S. 83, 100 S.Ct. 2547, 65 L.Ed.2d 619 (1980); Inchaustegui v. State, 392 So.2d 319 (Fla.4th DCA 1980).

BERANEK, GLICKSTEIN, and HURLEY, JJ., concur.


text:
    James Timothy JORDAN, Appellant, v. STATE of Florida, Appellee.
    No. 81-201.
    District Court of Appeal of Florida, Second District.
    April 22, 1981.
   PER CURIAM.

Affirmed without prejudice to allow appellant to file his writ of habeas corpus in the circuit court in the county where he is incarcerated. State v. Sampson, 297 So.2d 120 (Fla. 4th DCA 1974). Presently, appellant is outside the jurisdiction of this court.

SCHEB, C. J., and RYDER and CAMPBELL, JJ., concur.


author: CAMPBELL, Judge.

text:
    IN re the ESTATE of Lawrence Edward ODOM, Deceased. Donna D. BERKEY, Appellant, v. ESTATE of Lawrence Edward ODOM, Deceased, Appellee.
    No. 80-1235.
    District Court of Appeal of Florida, Second District.
    April 24, 1981.

      Michael K. Stuckey and Richard Motley, Clearwater, for appellant.
    William H. Walker, St. Petersburg, for appellee.
   CAMPBELL, Judge.

Pursuant to section 732.108(2)(b), Florida Statutes (1979), appellant Donna D. Berkey, as mother, guardian and next friend of Julie Diane Odom, a minor child, filed in the circuit court, probate division, a petition for appointment of personal representative, determination of beneficiaries, administration of intestate estate and adjudication of paternity in regard to the estate of Lawrence Edward Odom, deceased. Her petition alleged that Mr. Odom had previously died intestate and that no application for appointment of a personal representative had been filed. She further alleged that Mr. Odom was survived by his wife, two adult children of that marriage, one adult child of a previous marriage, and a minor child, Julie Diane Odom, who was alleged to have been born out of wedlock to Mr. Odom and appellant on November 5,1969. Appellant, prior to the death of Mr. Odom on January 22, 1980, had filed an action against him for determination of paternity pursuant to chapter 742, Florida Statutes. That action had been dismissed by the trial court on its own motion on February 15, 1980, as a result of Mr. Odom’s intervening death.

Anselaine D. Odom, as surviving spouse of Mr. Odom, filed a motion to dismiss appellant’s probate petition asserting that it was an action for determination of paternity brought against the estate of the putative father and, therefore, could not survive his death under the authority of Bell v. Setzer, 375 So.2d 61 (Fla.2d DCA 1979). The trial court agreed and dismissed appellant’s petition specifically relying upon Bell v. Setzer, supra, as controlling over the arguments of appellant that In re Estate of Burris, 361 So.2d 152 (Fla.1978), and section 732.108(2)(b), Florida Statutes, authorize such an action. We find the trial court’s reliance misplaced and reverse.

Bell v. Setzer, supra, was an appeal from the dismissal of an action for the determination of paternity and support of a minor child bom out of wedlock. The trial court there dismissed the action upon the death of the putative father prior to an adjudication of paternity. This court in Bell properly held the dismissal was proper because an action pursuant to chapter 742 abates on the death of the defendant putative father, citing as authority Carpenter v. Sylvester, 267 So.2d 370 (Fla.3d DCA 1972). Carpenter involved an appeal from an order denying a motion to dismiss an action for determination of paternity and child support under chapter 742, Florida Statutes, brought after the putative father’s death against the administratrix of his estate. The district court of appeal in Carpenter reversed, properly holding that since under the common law the duty of support of minor children dies with the father, so does an action under chapter 742 likewise abate with the death of the putative father since the statute contains no language in derogation of the common law rule. Although this court in Bell discusses the possibilities of an action under section 732.108(2)(b) for the determination of paternity for inheritance purposes, that issue was not before the Bell court. Bell like Carpenter was an action for the determination of paternity for the purpose of child support pursuant to chapter 742.

Appellant’s petition below did not involve chapter 742 or child support, but involved solely the determination of paternity for the purpose of inheritance under section 732.108(2)(b), a different action entirely.

In sustaining appellant’s petition below, we look to a number of decisions of the Florida courts that have interpreted section 732.108(2)(b) and chapter 742, Florida Statutes, as well as decisions in other jurisdictions that have considered similar statutes. As this court in Bell pointed out, clearly the legislature by enacting section 732.108(2)(b) intended to allow an action to determine paternity for inheritance purposes. See also State Department of HRS v. West, 378 So.2d 1220 (Fla.1979). Again as pointed out in Bell, the problem arises when chapter 742 is sought to be used as the vehicle for such an action. Carpenter and Bell both hold that a chapter 742 action abates on death. Section 742.10 provides that chapter 742 is “in lieu of” all other proceedings provided By law for the determination of paternity and support of children bom out of wedlock. Chapter 742 then is not available as the vehicle for a cause of action for determination of paternity for inheritance purposes. The question then is, does a cause of action still exist in light of the “in lieu of” language of section 742.10? We hold it does, construing that language to be restrictive only to actions for child support for children born out of wedlock. Since we determine that the legislature clearly intended that an action could' be maintained for the determination of paternity for inheritance purposes, we must also determine the proper method for bringing such an action.

One of equity’s most important maxims is that “equity will not suffer a wrong to be without a remedy.” First State Bank of Clermont v. Fitch, 105 Fla. 435, 443, 141 So. 299, 301 (1932). Since the legislature has determined that children born out of wedlock have a right to inherit from their natural father if paternity is established before or after the father’s death but has not specified the type of actions to secure that right, we must assume the legislature intended a remedy that already existed. In re Estate of Burris, supra, is helpful in concluding that appellant has sought the correct remedy. There the court examined section 731.29(1), Florida Statutes (1973), the predecessor to section 732.108(2). In doing so, it held section 731.29(1), Florida Statutes (1973), to be unconstitutional under our state and federal constitutions in that it restricted an illegitimate child’s right to inherit intestate property of its natural father’s estate only if paternity was proved by a written and witnessed acknowl-edgement of paternity by the father. The court there noted that the legislature had subsequently amended the provision by enacting section 732.108(2), where, in addition to written acknowledgement, an illegitimate child would be allowed to inherit from its father if paternity was adjudicated either before or after death. Since the prior statute allowed paternity for inheritance purposes to be established after the death of the father in an action against the putative father’s estate only with proof of an acknowledgement in writing, the amended section 732.108(2) must be construed as expanding the method of proof of paternity based on evidence other than a written ac-knowledgement.

Kendrick v. Everheart, 390 So.2d 53 (Fla.1980), involved the question of whether a father had a right to bring an action under either chapter 742 or chapter 86, Florida Statutes, to determine his paternity of his illegitimate children. The court there held that chapter 742 was intended as the natural mother’s exclusive legal remedy in establishing paternity and enforcing support rights on behalf of her child. We feel that the exclusiveness of chapter 742 as the natural mother’s remedy is limited, under a strict reading of the wording of the statute, to an action brought for “the determination of paternity and support of children born out of wedlock.” § 742.10, Fla.Stat. (1979) (emphasis added). The Kendrick court seemed to agree, holding that the exclusiveness of the remedy provided for the natural mother by the “in lieu of” language of section 742.10 was “limited in application to suits brought by a mother to enforce her child’s support rights against the natural father.” Kendrick v. Everheart, 390 So.2d at 58 (emphasis added). The court then held that since the “in lieu of” language was thus limited, it did not bar a father’s right to bring an action for declaratory judgment of paternity pursuant to chapter 86. See also In re Estate of Donoyan, 393 So.2d 615 (Fla.1st DCA 1981). Here chapter 86 is not readily available. Since the putative father is deceased, any such action would of necessity be against the estate of the deceased and there is no probate estate pending.

So in such a case where does appellant turn? It is clear to us that her petition below was a proper action. Section 733.105, Florida Statutes (1979), is a provision for, among other things, determination of beneficiaries when property passes by intestate succession. Section 733.105(3) seems to perfectly mesh with section 732.108(2)(b), both being a part of the Florida Probate Code. We feel it helpful to set out here the applicable provisions of those sections to see how clearly they interrelate.

Section 732.108(2), Florida Statutes (1979):

For the purpose of intestate succession in cases not covered by subsection (1), a person born out of wedlock is a lineal descendant • of his mother and is one of the natural kindred of all members of the mother’s family. The person is also a lineal descendant of his father and is one of the natural kindred of all members of the father’s family, if:
(b) The paternity of the father is established by an adjudication before or after the death of the father.

Section 733.105(3), Florida Statutes (1979):

When it is necessary to determine who are or were the heirs or devisees, the court may make a determination, on the petition of any interested person, in like proceedings and after formal notice, irrespective of whether the estate of the deceased person is administered or, if administered, whether the administration of the estate has been closed or the personal representative discharged. A separate civil action may be brought under this subsection when an estate is not being administered.

In re Estate of Raso, 332 So.2d 78 (Fla.4th DCA 1976), seems to recognize the availability of section 733.105 for the purpose of determining the heirship of an illegitimate child. There the decedent’s wife as personal representative petitioned for determination of heirs, listing an illegitimate child as a possible heir of the decedent. The petition was served on the child’s mother who did not timely respond. Default judgment was entered and the natural mother of the illegitimate child moved to vacate the default on the grounds of excusable neglect. The trial court denied the motion to vacate and the district court reversed, holding, among other things, that the appellant alleged a meritorious defense — that decedent was the father of her child.

Section 732.108 is similar to and apparently patterned after section 2-109 of the Uniform Probate Code. When a statute has its origins in a uniform law it should receive uniform interpretation in all adopting states if the beneficial purpose of uniformity is to be served. Valentine v. Hayes, 102 Fla. 157, 135 So. 538 (1931). In C.L.W. v. M.J., 254 N.W.2d 446 (N.D.1977), the North Dakota Supreme Court analyzed its statute allowing inheritance from a father by an illegitimate child. North Dakota had adopted the Uniform Probate Code. The facts before the North Dakota court were amazingly similar to those here. There the child was born seven years prior to the father’s death. No written admission of paternity was ever made by the father and no judicial proceedings to determine paternity had commenced during his lifetime. At issue before the court was the question of whether North Dakota’s determination of paternity statute (similar to Florida’s chapter 742) applied only to proceedings to enforce the father’s obligation of support of the child during the father’s lifetime or whether failure to pursue that right during his lifetime or'within the period of the applicable statute of limitation also bars the determination of parentage for inheritance purposes after the father’s death. The North Dakota court determined that its statute which corresponds to section 2-109 of the Uniform Probate Code permits either a separate action or a determination in the probate court by or on behalf of a child born out of wedlock after the father’s death to determine rights of inheritance. The court in making its findings specifically held that the mother’s right to bring an action during the father’s lifetime to obtain a determination of paternity and support is a separate and distinct remedy from an action to determine paternity for the right to inherit. As the court said, “The two are separate remedies for separate purposes.” C.L.W. v. M.J., 254 N.W.2d at 450.

One of the problems certain to be encountered in an action against the father’s estate after his death is the evidentiary problem. As the authors of the annotations at 58 A.L.R.3d 188, 191 n.9, point out, “the charge of paternity is an easy one to make and a difficult one to refute, especially after the father’s death.” What then is the standard of proof that should be required in such an action? As we have previously indicated, the Florida statute is patterned after and similar to section 2-109 of Uniform Probate Code. The Florida statute, however, after providing that paternity may be established before or after the death of the father, omits the remaining wording of the Uniform Probate Code. The omitted wording provides that in an action after the death of the father, proof of paternity shall be “clear and convincing.”

Initially, therefore, we would seem bound by the maxim that the courts cannot supply by judicial decree what the legislature has omitted. Florida Department of Commerce v. Todd, 353 So.2d 662 (Fla.2d DCA 1978). Here, however, we have precedent which we believe supplies the standard of proof necessary in actions brought to establish paternity after the death of the father. In re McCollum’s Estate, 88 So.2d 537 (Fla.1956), considered an action by an illegitimate son to establish his right to inherit from his father’s estate under section 731.-29, Florida Statutes (1955), the predecessor to section 732.108. At that time, proof of paternity after death could be established only by the father’s written acknowledgment signed in the presence of a competent witness. The probate court, affirmed on appeal by the circuit court, found the illegitimate son entitled to share in his father’s estate on the basis of oral testimony concerning a letter purportedly written by the father to the son acknowledging parenthood. The letter was not introduced in evidence as it had been previously destroyed sometime after its receipt. The supreme court held “that the fact of written acknowledgment of paternity may be established by secondary evidence under the general rules relating to the admissibility of secondary evidence of lost or destroyed writings.” In re McCollum’s Estate, 88 So.2d at 539. However, the supreme court reversed the lower court on the question of the standard of proof necessary in such a case, saying:

And where the writing relied upon is not introduced in evidence but is sought to be proved by secondary evidence, we think the evidence should be of the same character; it should be so clear, strong and unequivocal as to remove every reasonable doubt as to the existence of the writing relied upon, its contents, and its signing in the presence of a competent witness. This is the rule applicable to the establishment of constructive trusts by parol evidence, Lightfoot v. Rogers, Fla., 54 So.2d 237, and we think it is the rule that should be applied in the situation here.

Id. at 540.

Section 732.108(2) now provides for adjudication of paternity after the father’s death by evidence of an acknowledgement of paternity in writing by the father or by any other admissible evidence. It would seem then that the standard of proof for the other evidence for adjudication after death should at least meet the standard for the proof of secondary evidence of a lost writing as required by the court in In re McCollum’s Estate, supra.

We, therefore, reverse and remand to the lower court for treatment consistent herewith. In doing so, we are not unmindful of the fact that though appellant had petitioned to be appointed personal representative of the estate of Mr. Odom, section 733.301, Florida Statutes may preclude her if the court determines that appointment of a personal representative is required.

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

      . Section 2-109, Uniform Probate Code.
      If, for purposes of intestate succession, a relationship of parent and child must be established to determine succession by, through, or from a person,
      (1) an adopted person is the child of an adopting parent and not of the natural parents except that adoption of a child by the spouse of a natural parent has no effect on the relationship between the child and that natural parent.
      (2) In cases not covered by (1), a person bom out of wedlock is a child of the mother. That person is also a child of the father, if:
      (i) the natural parents participated in a marriage ceremony before or after the birth of the child, even though the attempted marriage is void; or
      (ii) the paternity is established by an adjudication before the death of the father or is established thereafter by clear and convincing proof, except that the paternity established under this subparagraph (ii) is ineffective to qualify the father or his kindred to inherit from or through the child unless the father has openly treated the child as his, and has not refused to support the child.


text:
    Martha Jane LEONARD, Appellant, v. Thomas James LEONARD, Appellee.
    No. 80-1434.
    District Court of Appeal of Florida, Second District.
    April 24, 1981.

      John H. Stewart, St. Petersburg, for appellant.
    No appearance for appellee.
   PER CURIAM.

Appellant/wife appeals from the lower court’s order awarding only $1,390.00 in ar-rearages for child support when she had filed a motion for contempt alleging arrear-ages of $12,000.00.

On May 28,1980, a motion for an order of contempt along with a supplemental complaint for modification to increase child support was filed. A hearing on appellant’s motion was scheduled for June 17, 1980, at 11:00 a. m.

She drove from Port St. Lucie, her home, to St. Petersburg for the hearing; a distance of 175 miles. Appellant went to the office of her attorney so that he could direct her to the courthouse. Appellant- and her attorney arrived at the courthouse no more than three minutes after 11:00 a. m. Appellee and his attorney were leaving the courtroom and appellant’s attorney was informed by the trial judge that the hearing had been held at the scheduled time. Ap-pellee had been present with his attorney and apparently based solely upon appellee’s testimony, the trial judge ordered him to pay the amount of $1,390.00.-

While the trial court’s order might be sustainable as based upon the only evidence before him, we feel his failure to hear the appellant was an abuse of discretion. Ellard v. Godwin, 77 So.2d 617 (Fla.1955). We, therefore, reverse and remand for a full evidentiary hearing as to the amount of arrearages in child support.

SCHEB, C. J., and OTT and CAMPBELL, JJ., concur.


author: GRIMES, Judge.

text:
    STATE of Florida, Appellant, v. Patrick Wilson HUDSON, Appellee.
    No. 80-1936.
    District Court of Appeal of Florida, Second District.
    April 24, 1981.

      Jim Smith, Atty. Gen., Tallahassee, and Peggy A. Quince, Asst. Atty. Gen., Tampa, for appellant.
    Jerry Hill, Public Defender, Bartow, and Judith L. James, Asst. Public Defender, Tampa, for appellee.
   GRIMES, Judge.

This is an appeal from an order dismissing a charge of sexual battery.

The state charged appellee with committing sexual battery in the course of which he used physical force and violence not likely to cause serious personal injury in violation of section 794.011(5), Florida Statutes (1979). He filed a motion to dismiss under Florida Rule of Criminal Procedure 3.190(c)(4) and predicated it upon the facts set forth in the deposition of the victim. Following a hearing, the court granted the motion.

According to her deposition, the victim, a twenty-seven year old woman, was hitchhiking to the Carousel Apartments to go swimming with some friends. She was wearing a sundress over a bathing suit. Appellee, with whom she was not acquainted, offered to give her a ride to her destination. Instead, he drove her to a dead-end cul-de-sac where he began to make advances. He tried to kiss her and made several unsuccessful efforts to pull her skirt up. He told her that she had better let him have his way or he would hurt her. As a ruse to ward him off, she told him she had an apartment at the Carousel Apartments and that it would be safer if they went there.

The victim further testified that instead of going to the apartments appellee drove to a more lonely area. There he started grabbing her and unsuccessfully tried to pull down her bikini pants. At his command, she got out of the car. He then dragged her around the car and told her to lie down. He threatened to hurt her again, and his voice shook as if he was in a state of agitation. She tried to talk him out of his objective, but when he refused to be dissuaded, she lay down. Without a struggle, she submitted to intercourse which, she said, hurt “a little bit.” At no time did appellee exhibit or refer to a weapon. Upon her release, she went to the Carousel Apartments where she immediately called the police.

At the outset it is well to remember that the function of a dismissal under rule 3.190(c)(4) is to eliminate only those cases in which the undisputed facts do not establish a prima facie case of guilt. Therefore, in passing upon a motion to dismiss, the court should view the facts in the light most favorable to the state. State v. Davis, 243 So.2d 587 (Fla.1971). The court should not weigh the evidence or determine its credibility. State v. Bryant, 373 So.2d 708 (Fla.3d DCA 1979). If reasonable men could find guilt, a jury question results, and the motion to dismiss should be denied. State v. Hires, 372 So.2d 183 (Fla.2d DCA 1979).

As in prosecutions under the old rape statutes, the state must prove the use of physical force which overcomes the will of the victim in order to convict a defendant of sexual battery under section 794.011(5). Admittedly, the only evidence in this case of physical force which appellee applied directly to the victim prior to intercourse consisted of his grabbing at her, seeking to pull off her wearing apparel, and dragging her around the ear. Yet, the victim testified that more than once appellee threatened to hurt her. She emphasized that she only submitted out of fear for her safety after failing in her efforts to talk him out of his objective.

The supreme court has held that when, a man obtains intercourse with a woman by such an array of physical force that she dare not resist, he is guilty even though he lays no hands on her. Flowers v. State, 152 Fla. 649, 12 So.2d 772 (1943); Green v. State, 135 Fla. 17, 184 So. 504 (1938). Resistance is a relative term and must be considered under the circumstances of each case. Thomas v. State, 167 So.2d 309 (Fla.1964). Questions of consent, force, resistance and fear are particularly within the province of the jury to determine. Berezovsky v. State, 335 So.2d 592 (Fla.3d DCA 1976), rev'd in part on other grounds, 350 So.2d 80 (Fla.1977).

From a review of the facts reflected by the victim’s deposition and in view of the standards set out above, we cannot say, as a matter of law, that appellee was entitled to discharge. We reverse the order of dismissal and remand the case for further proceedings.

SCHEB, C. J., and HOBSON, J., concur.