text:
    Freddie LAWRENCE, Appellant, v. The STATE of Florida, Appellee.
    No. 81-798.
    District Court of Appeal of Florida, Third District.
    Oct. 20, 1981.

      Freddie Lawrence, in pro. per.
    Jim Smith, Atty. Gen., for appellee.
    Before DANIEL S. PEARSON, FERGUSON and JORGENSON, JJ.
   PER CURIAM.

Freddie Lawrence appeals from the summary denial of his motion to vacate a 1953 conviction for breaking and entering with intent to commit petit larceny. Lawrence’s motion to vacate was accompanied by his affidavit, which recited, inter alia, that (1) he was presently incarcerated at Union Correctional Institution, Raiford, Florida, pursuant to sentences not being attacked in his motion to vacate; (2) that in 1953, in the Criminal Court of Record in Dade County, Miami, Florida, he entered a guilty plea to the offense of burglary; (3) prior to and at the time of entering the plea, and at the time of adjudication and sentence, he was not represented by counsel, was not informed of his right to counsel, was financially unable to hire an attorney, and did not waive his right to be represented by counsel; (4) that the Florida Parole and Probation Commission has used and is currently using the 1953 conviction to postpone his parole eligibility and extend his incarceration. Lawrence’s motion and affidavit unquestionably state a prima facie case for relief precluding summary disposition, unless “the files and records of the case conclusively show” that he is entitled to no relief. Fla.R.Crim.P. 3.850.

When Lawrence’s appeal first arrived here, it was accompanied by a record which consisted of Lawrence’s form motion, see Fla.R.Crim.P. 3.987, his attached affidavit, and a form order denying him relief and advising him of his right to rehearing and appeal. That form order recites, inter alia, that the court has “examined the said Motion and find[s] that the allegations contained therein do not constitute legal grounds [for relief].” Most certainly, the order entered was wrong. We believed, however, that a complete record of the 1953 plea proceedings might demonstrate that Lawrence was not entitled to relief and support the trial court’s denial for a different reason. We requested the State to obtain and file any available record, and that has been done. The record submitted is the minute entries for July 30, the day of Lawrence’s plea of guilty, and the adjudication and sentencing which followed on the heels of the plea. The minute entries reflect that Freddie Lawrence and his co-defendant, Lee Mitchell, were together before the court and simultaneously entered pleas of guilty. The only mention of an attorney, other than the prosecutor, being present is the notation, “Joseph Nadler, Counsel for the Defense.”

In Lawson v. State, 231 So.2d 205 (Fla.1970), the court held inter alia, that an identical minute entry showing the appearance of “M. O’Quinn, Counsel for the Defense” did not conclusively show that this lawyer represented Lawson, one of four co-defendants then before the court. The minute entry in Lawrence’s case in which he and his co-defendant, Lee Mitchell, were together before the court, entered pleas of guilty, were adjudicated guilty and sentenced, is equally equivocal. It is therefore abundantly clear that the minute entries are not enough to defeat Lawrence’s claim for relief and to warrant the summary denial of his motion to vacate.

Thus, we reverse the trial court’s summary denial of Lawrence’s motion to vacate and remand the cause to the trial court with directions to conduct a hearing at which Lawrence will have the opportunity to prove by a preponderance of the evidence that he was not represented by counsel, that he was financially unable to employ counsel, and that he did not competently and intelligently waive his right to counsel. See Lawson v. State, supra, at 209.

It further appears that Lawrence, proceeding pro se, moved to vacate the plea and sentence in only Case No. 26144 — A. However, the record reflects that Lawrence pleaded guilty on the same day, and under the same circumstances, to charges contained in companion Cases Nos. 26142-A and 26143 — A, and received consecutive one-year sentences in the three cases, not, as he mistakenly said in his motion to vacate, a three year sentence in Case No. 2614L-A. Therefore, since these three cases were obviously consolidated for purposes of plea and sentencing, upon remand the trial court is directed to permit Lawrence to amend his motion to cover the three cases.

Reversed and remanded.

      . Lawrence’s allegation that his present custody under a different sentence is being prolonged because of his 1953 conviction, the sentence on which was long ago served, is sufficient to satisfy the “in custody” requirement of Rule 3.850. Bryan v. State, 345 So.2d 1095 (Fla. 2d DCA 1977); Rose v. State, 235 So.2d 353 (Fla. 3d DCA 1970). See also Weir v. State, 319 So.2d 80 (Fla. 2d DCA 1975).


source: Caselaw Access Project

author: HENDRY, Judge. HUBBART, Chief Judge

license: Public Domain

text:
    TRAVELERS INSURANCE COMPANY, Appellant, v. JEFFERSON NATIONAL BANK AT KENDALL, Appellee.
    No. 80-1361.
    District Court of Appeal of Florida, Third District.
    Oct. 20, 1981.

      Joseph A. McGowan, Miami, for appellant.
    Kimbrell, Hamann, Jennings, Womack, Carlson & Kniskern and Bruce Charles King, Miami, for appellee.
    Before HUBBART, C. J., and HENDRY and BASKIN, JJ.
   HENDRY, Judge.

Appellant, Travelers Insurance Company as subrogee of GAC Properties, Incorporated (GAC), and GAC individually, were co-plaintiffs in an action against the defendant/appellee Jefferson National Bank for the conversion of checks on which GAC was the named payee. Sometime in 1973, GAC’s employee, Sherwood Savage, opened several bank accounts at Jefferson National in the name of GAL Properties, a Division of American Bancredit Corporation. Due to the similarity between the name of the account, GAL, and the name of the payee, GAC, Savage was able to deposit to the accounts various checks payable to GAC. The proceeds from the checks were paid to or for the order of Savage or GAL. When a fraud was discovered, Travelers paid GAC for its loss under a fidelity bond.

In 1978, Travelers, subrogated to GAC’s rights, and GAC jointly filed suit against Jefferson National, alleging negligence and conversion under Section 673.419(l)(c), Florida Statutes (1977). Jefferson National responded by raising three affirmative defenses. First, the bank pled the statute of limitations, Section 95.11. Second, the bank asserted that since it had acted solely as a collecting bank, and had dealt with the instruments “in good faith and in accordance with the reasonable commercial standards applicable to the [banking] business,” that it was absolved from any liability beyond the proceeds remaining in its possession by virtue of Section 673.419(3). See Jackson Vitrified China Co. v. People’s American National Bank of North Miami, 388 So.2d 1059 (Fla. 3d DCA 1980). Third, Jefferson invoked Section 673.406, alleging that Travelers (as subrogee of GAC) was precluded from asserting the alteration or lack of authority against the bank since Jefferson had paid the checks in good faith and in accordance with the reasonable commercial standards of the banking business, and the negligence of GAC, Travelers’ insured, had substantially contributed to the making of the unauthorized signature.

In response to the statute of limitations defense, the court, pursuant to stipulation by both sides, barred all claims which were more than four years old prior to the filing of the suit. At the close of the plaintiff’s case in a jury trial, the court directed a verdict against Jefferson National and in favor of Travelers on the reasonable commercial standard defense of Section 673.-419(3). The court then instructed the jury on the substantial contribution defense under Section 673.406. The jury returned a verdict in favor of Jefferson. Travelers has appealed from the final judgment; Jefferson has filed a cross-appeal. We reverse and remand for a new trial.

In directing a verdict against Jefferson under Section 673.419(3), the court ruled as a matter of law that Jefferson had not observed reasonable commercial standards so as to avail itself of the defense to a conversion action found in that section:

673.419 Conversion of instrument; innocent representative.—
(3) Subject to the provisions of this code concerning restrictive indorsements a representative, including a depositary or collecting bank, who has in good faith and in accordance with the reasonable commercial standards applicable to the business of such representative dealt with an instrument or its proceeds on behalf of one who was not the true owner is not liable in conversion or otherwise to the true owner beyond the amount of any proceeds remaining in his hands, (emphasis supplied)

Good faith and reasonable commercial standards are factual questions to be determined by the trier of fact. Thus, the trial court erred in taking this issue from the jury and deciding it as a matter of law. Barnett Bank of Miami Beach v. Lipp, 364 So.2d 28 (Fla. 3d DCA 1978). This error, moreover, was compounded when the jury rendered a verdict for Jefferson National on the basis of Section 673.406, since this provision is not available as a defense to the bank unless it has acted in accordance with reasonable commercial standards:

673.406 Negligence contributing to alteration or unauthorized signature. — Any person who by his negligence substantially contributes to a material alteration of the instrument or to the making of an unauthorized signature is precluded from asserting the alteration or lack of authority against a holder in due course or against a drawee or other payor who pays the instrument in good faith and in accordance with the reasonable commercial standards of the drawee’s or payor’s business. (emphasis supplied)

The verdict reached by the jury was clearly incompatible with the prior ruling of the trial court. On the one hand, the court determined that the bank did not deal with the instrument in accordance with reasonable commercial standards as required by Section 673.419(3), and, on the other hand, instructed the jury on the substantial contribution defense of Section 673.406, which is also dependent upon good faith and adherence to reasonable commercial standards by the party invoking the defense. Only where a bank has acted in accordance with reasonable commercial standards is the. defense of negligence of the true owner of an instrument available. Perley v. Glastonbury Bank and Trust Co., 170 Conn. 691, 368 A.2d 149 (1976); Empire Moving and Warehouse Corp. v. Hyde Park Bank and Trust Co., 43 Ill.App.3d 991, 357 N.E.2d 1196, 2 Ill.Dec. 753 (App.Ct.1976); Seattle-First National Bank v. Pacific National Bank, 22 Wash.App. 46, 587 P.2d 617 (Ct.App.1978).

Because the trial court determined as a matter of law that the bank did not comply with reasonable commercial standards, the cause must be remanded for a new trial. On remand, the bank will have the burden of presenting evidence concerning the applicable standards of the banking industry and its adherence thereto. Barnett Bank of Miami Beach v. Lipp, supra; Siegel Tracking Co., Inc. v. Coral Ridge National Bank, 328 So.2d 476 (Fla. 4th DCA 1976); Robert A. Sullivan Construction Co. v. Wilton Manors National Bank, 290 So.2d 561 (Fla. 4th DCA 1974). This will necessitate more than merely demonstrating that the bank “did not fail to reasonably comply with its own commercial standards.” Siegel Trading Co., Inc. v. Coral Ridge National Bank, supra, at 479. Whether GAC’s conduct was negligent and substantially contributed to the making of the forgery are also questions of fact for determination by the jury, Ray v. Farmers’ State Bank of Hart, 576 S.W.2d 607 (Tex.1979); Thompson Maple Products, Inc. v. Citizens National Bank, 211 Pa.Super. 42, 234 A.2d 32 (1967), and the burden of proving that GAC’s negligence substantially contributed to the making of the unauthorized signature is on Jefferson. See Perley v. Glastonbury Bank and Trust Co., supra; Twellman v. Lindell Trust Co., 534 S.W.2d 83 (Mo.App.1976).

Since this case is remanded in accordance with the views expressed herein, we also address the issues raised by Jefferson’s cross-appeal. The bank’s first contention, that the trial court erred in directing a verdict against it on the reasonable commercial standard issue, has been resolved in its favor. We summarily dispose of the bank’s claim that the court should have directed a verdict in its favor under the statute of limitations since the bank failed to preserve this issue below. Finally, Jefferson argues that the court should have instructed the jury on the rule of law stated in Ruwitch v. First National Bank of Miami, 291 So.2d 650 (Fla. 3d DCA), cert. denied, 305 So.2d 196 (Fla.1974), which, as Jefferson interprets it, would place on Travelers, as GAC’s paid surety, a heavier burden than GAC itself would have in demonstrating negligence on the part of Jefferson. We disagree. The trial court properly refused to instruct the jury in this regard since Ruwitch held only that paid, as opposed to unpaid, sureties do not enjoy equities superior to those of other litigants. Ruwitch did not, as Jefferson maintains, state that sureties-for-hire occupy an inferi- or position in the law.

We hold that whether a party has acted in good faith and observed reasonable commercial standards in order to invoke the defenses to a conversion action available under Sections 673.406 and 673.419(3) is a factual determination to be made by the trier of fact. The judgment is reversed and the cause remanded for a new trial in accordance with the views expressed herein.

Reversed and remanded.

HUBBART, Chief Judge

(dissenting).

I must respectfully dissent. I would affirm the final judgment appealed from in all respects.

The only error committed by the trial court below, as the court herein concludes, was in directing a verdict against the defendant/appellee Jefferson National Bank on its reasonable commercial standard defense raised below under Section 673.419(3), Florida Statutes (1977). The court holds, correctly I think, that this defense should have been submitted to the jury because “[gjood faith and reasonable commercial standards are factual questions to be determined by the trier of fact,” at least in the context of this case. This error, however, did not adversely affect, but, on the contrary, materially helped the plaintiff/appellant Travelers Insurance Co. by precluding the jury from considering a valid defense advanced by the defendant/appellee Jefferson National Bank. It is, therefore, clear that the subject error was harmless as to the plaintiff/appellant Travelers and can form no basis for a reversal and remand for a new trial. § 59.041, Fla.Stat. (1979).

It is true, as the majority notes, that the trial court’s ruling in directing a verdict on the reasonable commercial standard defense was inconsistent with its denial of a directed verdict on the defendant/appellee Jefferson National Bank’s substantial contribution defense raised below under Section 673.406, Florida Statutes (1977), as both defenses were dependent on a showing of good faith and adherence to reasonable commercial standards. The only judicial error, however, committed by the trial court in these two inconsistent rulings was as to the former ruling and not to the latter. The trial court was eminently correct, as the court herein implicitly concludes, in denying a directed verdict on the substantial contribution defense and in sending the case to the jury as to that defense. As such, it follows that the jury was well within its province when it found for the defendant/appellee Jefferson National Bank on the subject substantial contribution defense.

This leaves us, in my view, with no alternative but to affirm because no error has been committed in this case which in any way adversely affected the substantial rights of the plaintiff/appellant Travelers Insurance Company. E. O. Roper, Inc. v. Wilson & Toomer Fertilizer Co., 116 Fla. 796, 156 So. 883, 884 (1934); see e. g, Henderson v. State, 94 Fla. 318, 113 So. 689, 697-98 (1927); Seaboard Air Line Railroad v. McCutcheon, 158 So.2d 577 (Fla. 3d DCA), cert. denied, 165 So.2d 178 (Fla.1964). As there is no reversible error shown on the main appeal, the points raised by the cross appeal necessarily become moot. Bour v. Sherman, 113 Fla. 730, 152 So. 3 (1934); 3 Fla.Jur.2d, “Appellate Review” § 281 (1978).

I would affirm.


author: BERANEK, Judge. ANSTEAD, Judge,

text:
    Bernard Alexander KAHLENBERG, Appellant, v. STATE of Florida, Appellee.
    No. 79-2560.
    District Court of Appeal of Florida, Fourth District.
    Oct. 21, 1981.
    Steven E. Chaykin of Law Offices of Gars, Dixon & Shapiro, Miami, for appellant.
    Jim Smith, Atty. Gen., Tallahasse, and Max Rudmann, Asst. Atty. Gen., West Palm Beach, for appellee.
   BERANEK, Judge.

Defendant appeals his conviction and sentence on six counts of grand larceny charged under Section 812.021(l)(a), Florida Statutes (1975). We find error and reverse.

Defendant was the sole owner and president of a corporation. All other corporate officers were immediate family members and the corporation was run as a family business. Defendant was initially charged with 54 counts of larceny of money from the corporation and eventually convicted of six counts. Each' conviction was based on a particular corporate check which, was used to pay personal expenses which the State asserted were unauthorized as corporate expenditures. Three checks were issued to pay for furniture in the defendant’s residence. Two cheeks were issued to pay defendant’s condominium assessments and utilities and the last check was issued to an individual in repayment of a loan given to the defendant rather than to his corporation. Shortly after the transactions involved in the 54 counts, the defendant’s corporation went into bankruptcy, leaving many outstanding debts to creditors.

Defendant first asserts a variance between the information and the proof at trial. As previously indicated, defendant was specifically charged by an information under Section 812.021(l)(a), Florida Statutes (1975), which provides as follows:

812.021 “Larceny” defined; penalties; sufficiency of indictment, information or warrant.—
(1) A person who with intent unlawfully to deprive or defraud the true owner of his property or of the use and benefit thereof, or to appropriate the same to the use of the taker or of any other person:
(a) Takes from the possession of the true owner, or of any other person; or obtains from such person possession by color or aid of fraudulent or false representations or pretense, or of any false token or writing; or obtains the signature of any person to a written instrument, the false making whereof would be punishable as forgery; or secretes, withholds, or appropriates to his own use, or that of any other than the true owner, any property;

Defendant asserts error because he contends the prosecution was really under Section 812.021(l)(b), which provides:

(b) Having in his possession, custody or control, as a broker, bailee, public servant, attorney, agent, employee, clerk, trustee, or officer of any person, association, or corporation, member of copart-nership, pool or joint adventure, or as a person authorized by agreement, or by competent authority, to hold or take such possession, custody, or control, any property, appropriates the same to his own use, or that of any other person other than the true owner or person entitled to the benefit thereof;

Although the State alleged reliance on subsection (a) in the information, it is apparent that the entire theory of the case was actually bottomed on sub-section (b). This fact was brought to the court’s attention prior to trial at a hearing on other matters. At that time the State orally advised defendant that the theory of the case was actually embezzlement under sub-section (b). Despite this oral announcement, the information was never amended to so reflect. Defendant’s objections in this regard both before and during trial were overruled. Other important amendments to the information were allowed on the morning of the first day of trial, and the State’s failure to amend regarding the sub-sections describing larceny and embezzlement is unexplained. The jury was instructed on subsection (b) over defendant’s objection and evidence germane to embezzlement was admitted over objection. Defendant relies upon King v. State, 104 So.2d 730 (Fla.1957), in urging a fatal variance between the charge and the proof. That case held that where the information identifies with particularity the exact section of the statute upon which the charge is based, no other statute can be substituted for the one actually selected.

In considering this argument and whether the variance between the information and the proof resulted in prejudice we turn to the defendant’s next point on appeal, which is closely related. Defendant contends the State failed to prove that property taken from the corporation was without the consent of the owner, an essential element of either larceny or embezzlement. Defendant argues that the evidence showed that the corporation of which he was president and the sole beneficial owner clearly gave its consent. The prosecution counters with the argument that an owner can steal from his own corporation. The State chose to prove defendant’s deceit or criminal intent negating consent by presenting evidence of creditor fraud. Our review of the record convinces us that creditor fraud became the main thrust of the prosecution. The State continually urged by evidence and argument over defendant’s objection that the creditors of the bankrupt corporation were the real victims of the payments made for defendant’s personal expenses. The State maintained that but for these unauthorized expenditures of corporate funds, the creditors would have been able to look to the corporate assets for repayment. Even on appeal, the State urges creditor fraud as a reason for affirmance. We have difficulty with inferring embezzlement from a corporate victim by proof of fraud against a creditor victim especially when the information neither charged the defendant under the embezzlement section nor alleged his relationship to the corporate owner. See generally Biederman v. State, 392 So.2d 982 (Fla. 4th DCA 1981).

After a review of all the evidence, we conclude that the State simply failed to prove the essential elements of larceny or embezzlement. The proof is deficient on the issue of the victim of the larceny. The information asserts that the corporation was the victim and that corporate property was taken by larceny. The proof at trial, at most, seemed to indicate that the creditors of the corporation were the victims. It may be well that fraud against corporate creditors should be a criminal offense. However, we do not construe section 812.-021(l)(a) or (b), Florida Statutes (1975), as proscribing fraud against the creditors of a corporation. Even if the statute could be stretched to this extent, the information specifically delineated the victim as the defendant’s corporation rather than the creditors of the corporation. Under the circumstances we conclude that the State failed to prove the case as alleged in the information and the defendant was entitled to a directed judgment of acquittal. The judgment below is reversed and judgment of acquittal is hereby entered.

OWEN, WILLIAM C., Jr., Associate Judge (Retired), concurs.

ANSTEAD, J., concurs specially with opinion.

ANSTEAD, Judge,

concurring specially:

I concur with the result reached by the majority on the basis that there was insufficient evidence to sustain a verdict of guilty as to the charge actually contained in the information. Having alleged the specific violation of a statute in the information, the state was bound to prove a violation of that statute and was not entitled to have the jury instructed that it could convict the appellant for violating another statute. See King v. State, 104 So.2d 730 (Fla. 1957).


author: BERANEK, Judge.

text:
    Sonia KORDAK, formerly Sonia L. Williams, Appellant, v. Ronald L. WILLIAMS, Appellee.
    No. 80-2217.
    District Court of Appeal of Florida, Fourth District.
    Oct. 21, 1981.
    Gerald R. Hart, Jacksonville, for appellant.
    G. Russell Petersen of Petersen & Pegg, Vero Beach, for appellee.
   BERANEK, Judge.

The wife appeals an order denying her motion for contempt and modifying a prior final judgment of dissolution. We reverse in part because there was no basis in the pleadings for the modification.

The parties were divorced in 1970 by a judgment which incorporated a child custody and property settlement agreement. In late 1980, husband filed a motion to hold wife in contempt for her alleged non-compliance with the judgment’s child visitation provisions. In response, wife filed a counter motion for contempt asserting husband’s failure to comply with the child support provisions of the judgment. No other substantive pleadings were filed, and both contempt motions were heard on November 24, 1980. The resulting court order made no ruling on husband’s motion for contempt and denied the wife’s motion and her request for attorneys’ fees and arrearages. We affirm these limited rulings on contempt and the refusal to enforce the wife’s claim for arrearages. In addition, the order in question proceeded to modify the final judgment by striking a particular paragraph regarding child support and by accepting an oral modification of the final judgment which the parties were found to have previously entered into. The court found the oral modification to be legally binding and ordered the parties to comply with it in the future.

A mere motion for contempt does not form the basis for modification of a final judgment. See Sardinas v. Sardinas, 401 So.2d 909 (Fla. 4th DCA, 1981), and the numerous cases cited therein.

The order below is thus affirmed as to the rulings on contempt, arrearages, and attorneys’ fees, and reversed and vacated as to all other rulings.

AFFIRMED IN PART; REVERSED IN PART.

ANSTEAD, J., and OWEN, WILLIAM C., Jr., Retired, Associate Judge, concur.


author: PER CURIAM.

text:
    Tod W. BOSSERT, Appellant, v. PALM BEACH COUNTY COMPREHENSIVE COMMUNITY MENTAL HEALTH CENTER, INC., Appellee.
    No. 80-2114.
    District Court of Appeal of Florida, Fourth District.
    Oct. 21, 1981.
    Frank B. Kessler of Zwickel, Gross & Kessler, Lake Worth, and Lois J. Frankel, West Palm Beach, for appellant.
    Thomas A. Sheehan, III, of Moyle, Jones & Flanigan, West Palm Beach, for appellee.
   PER CURIAM.

Plaintiff appeals from the final dismissal of his complaint for breach of an employment contract. Plaintiff, a psychologist, filed suit alleging breach of a contract between himself and the Palm Beach County Comprehensive Community Mental

Health Center, Inc. The defendant moved to dismiss the complaint and the trial court granted the motion with prejudice based upon defendant’s assertion that the contract, on its face, lacked consideration and was unenforceable. The contract specifically obligated both parties to a five-month term of employment during which plaintiff was to work a certain number of hours per week. Plaintiff was to be paid a fixed amount for his hours. The contract gave plaintiff the prerogative of reducing the hours he might work by serving written notice two weeks in advance of the date on which he intended to reduce his hours. This restriction constituted sufficient consideration upon which to base an enforceable contract. See Thompson v. Shell Petroleum Corporation, 130 Fla. 652, 178 So. 413 (1938). The legal principle requiring mutuality in contracts does not require that in every case each party have the same remedy. The fact that a contract may, under certain definite circumstances, be terminable at the option of one of the parties does not, as a matter of law, render the contract unenforceable for want of mutuality. See also Rollins Services v. Metropolitan Dade County, 281 So.2d 520 (Fla. 3d DCA 1970). We conclude that the trial court erred in dismissing this complaint with prejudice and remand for further proceedings.

REVERSED AND REMANDED.

ANSTEAD and BERANEK, JJ., and OWEN, WILLIAM C., Jr., Retired, Associate Judge, concur.


text:
    SANTAVICCA & ASSOCIATES, INC., Appellant, v. John L. CARLO, D. C., Appellee.
    No. 79-2354.
    District Court of Appeal of Florida, Fourth District.
    Oct. 21, 1981.
    Montgomery, Lytal, Reiter, Denney & Searcy, P. A;, and Edna L. Caruso, West Palm Beach, for appellant.

      Kathryn Beamer and Richard D. Schuler of Schuler & Wilkerson, P. A., West Palm Beach, for appellee.
   PER CURIAM.

This is an appeal from an order granting a new trial predicated on a finding that the evidence on one of the material issues tried was uncontroverted.

The appellant sued the appellee for breach of contract and the appellee counterclaimed alleging that the appellant had fraudulently induced him to enter into the contract. The agreement involved was one in which the appellant, a business consulting service for chiropractors, was supposed to provide the appellee, a chiropractor, with an “individualized practice management system” for his practice in exchange for a fee. When the appellee stopped payment on the fees due appellant this action resulted. The jury found that appellee breached the contract and rejected appellee’s claim of fraud. The trial court ordered a new trial, specifically holding that it was uncontro-verted at trial that the “individualized management system” which was promised never existed and was never intended to be delivered. We have reviewed the record and find the evidence to be in conflict on this issue. There was evidence presented by the appellant at trial to establish that it did provide the appellee with the management system promised, that appellee was not defrauded, that appellee’s earnings increased after he utilized the system, and that appel-lee breached his contract with appellant. That being the case, we believe the trial court erred in determining that the evidence on this issue was uncontroverted and in setting aside the jury’s verdict on that predicate. Perenic v. Castelli, 353 So.2d 1190 (Fla. 4th DCA 1978), cert. denied, 359 So.2d 1211 (Fla.1978).

Accordingly, the order of the trial court is reversed with directions that the jury verdict be reinstated and judgment be entered thereon.

LETTS, C. J., ANSTEAD, J., and STONE, BARRY J., Associate Judge, concur.


text:
    Tommy Wayne DEASON, Appellant, v. STATE of Florida, Appellee.
    No. 80-1677.
    District Court of Appeal of Florida, Fourth District.
    Oct. 21, 1981.
    Richard L. Jorandby, Public Defender, and Cathleen Brady, Asst. Public Defender, West Palm Beach, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Andrea T. Mohel, Asst. Atty. Gen., West Palm Beach, for appellee.
   PER CURIAM.

Appellant was charged with violation of several conditions of his probation, one of which required that he pay $10.00 per month toward the cost of his supervision. Appellant did not pay the required fee for his supervision and the court found him guilty of violation of several conditions of probation including the one requiring payment of the supervision fee. However, no evidence was adduced to show appellant had the ability to make said payments. Absent such proof the court if not authorized to find a violation of said condition. Robbins v. State, 318 So.2d 472 (Fla. 4th DCA 1975). This does not require a reversal of the order of revocaiton because there is adequate proof of violation of the other conditions.

Accordingly, the order of revocation is remanded to the trial court with directions to delete the finding of a violation of condition (5) of the order of probation in failing to comply with Section 945.30, Florida Statutes, requiring contribution to the cost of supervision. In all other respects the order appealed from is affirmed.

AFFIRMED as modified.

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


author: SHARP, Judge.

text:
    LUMBERMENS MUTUAL CASUALTY COMPANY, Appellant, v. Terry MEADE, Appellee.
    No. 80-854.
    District Court of Appeal of Florida, Fifth District.
    Oct. 21, 1981.

      Leslie King O'Neal, of Graham, Market, Scott, Marlowe, Appleton & McDonnough, P.A., Orlando, for appellant.
    Victor J. Musleh, of Musleh, Bond, Ar-nett, Foreman & Atkins, Ocala, and Seymour H. Rowland, Jr., Ocala, for appellee.
   SHARP, Judge.

Lumbermens Mutual Casualty Company appeals from a summary final judgment which enforced an arbitration award in Meade’s favor for “$16,709.50 plus taxable costs.” The court refused to consider Lum-bermens’ two arguments that the insurance award exceeded the policy’s ten thousand dollar ($10,000) per person uninsured motorist coverage, and that the award should not have included half of the arbitrators’ fees as “costs.” The lower court’s ruling was premised on the fact that Lumbermens had not sought to vacate, modify or correct the arbitrators’ award within ninety (90) days after a copy was delivered to it, pursuant to sections 682.13 and 682.14 of the Arbitration Code. Under the circumstances established by the record in this case, we disagree on both points, and accordingly we reverse.

I. Excessive Award

The lower court relied (with reluctance) on Travelers Insurance Co. v. Allen, 356 So.2d 1287 (Fla. 3d DCA), cert. denied, 364 So.2d 893 (Fla. 1978), which held that a party to an arbitration proceeding who failed to move to vacate or modify an award in a timely fashion pursuant to sections 682.13 and 682.14, cannot raise the issue of an excessive award in a suit by the successful party to confirm the award. The court said:

The law is well-settled that a court must confirm an arbitration award upon application of any party to the award unless within ninety (90) days after receipt of the arbitration award a party thereto has filed a motion with the court to vacate, modify or correct the award .... If an appropriate motion to vacate, modify or correct the award is not filed within the applicable time periods, the court has no alternative but to confirm the arbitration award. (Citations omitted).

356 So.2d at 1288. However, in Allen there was a dispute in the arbitration proceeding concerning the applicable policy limits.

In this case, there was no dispute as to coverage or the extent of coverage, and the issue submitted to arbitration was the amount of the insured’s damages. Meade attached to his complaint a copy of the policy and admitted its genuineness. The complaint clearly stated that Lumber-mens’ policy provided only a ten thousand dollar ($10,000) per person coverage. No other policy was involved in this case.

Under the Lumbermens’ policy, arbitration was required if:

[Lumbermens] and a covered person disagree whether that person is legally entitled to recover damages from the owner or operator of an uninsured motor vehicle or do not agree as to the amount of damages .... (Emphasis supplied).

No other issues could have been the subject of arbitration under this agreement between the parties. An arbitration award should be conclusive as to the issues submitted to arbitration but it should not have any binding effect as to matters which may effect liability of the insurance carrier for reasons extrinsic to the issues arbitrated. Questions concerning disputed coverage are generally not proper subjects for arbitration in any event.

In Bruno v. Travelers Insurance Co., 386 So.2d 251 (Fla. 3d DCA 1980), the court allowed the defending insurance company to raise in a confirmation proceeding the defense that the uninsured motorist coverage award should be reduced or eliminated because the insured settled with the tort-feasor and had recovered in full for all the damages found by the award. The court distinguished Bruno from Allen because the issues raised in Bruno in defending against confirmation were not ones which inhered in the award itself:

Rather, they concern the contention that, by virtue of extrinsic facts and the terms of its policy and the Florida law, the company is not contractually or statutorily obliged to pay the award. These are questions which only the courts, and not the arbitrators, have the authority to resolve.

386 So.2d at 253. The defensive issues in this case likewise involve the statutory and contractual scope of the issues subject to arbitration, and the terms of the policy which were not the subject matter of the arbitration proceeding.

II. Award of Arbitrators’ Fees as “Costs”

The Florida Arbitration Code provides that:

Unless otherwise provided in the agreement or provision for arbitration, the arbitrators’ and umpire’s expenses and fees, together with other expenses, not including counsel fees, incurred in the conduct of the arbitration, shall be paid as provided in the award.

§ 682.11, Fla. Stat. (1979).

The agreement in this insurance policy regarding arbitrators’ fees was that: “Each party will pay the expenses it incurs and bear the expenses of the third arbitrator equally.”

The trial court felt it was bound by Carter v. State Farm Mutual Automobile Insurance Co., 224 So.2d 802 (Fla. 1st DCA 1969). In Carter the arbitrators expressly awarded the arbitrators’ fees as part of the costs, and taxed them against the insurance company. When the insurance company failed to move to vacate or modify the award within the ninety (90) day period, the First District Court of Appeal held the insurer was bound by the award. It pointed out that under the Arbitration Code, arbitrators’ fees could be awarded and that this was the kind of error that could only be remedied by a timely motion pursuant to sections 682.13 and 682.14.

This case, however, is distinguishable from Carter because the arbitration award did not expressly itemize and award Meade the arbitrators’ fees as costs. This award simply said Meade was entitled to “taxable costs.” It is well established that costs can be taxed against the insurance company, following arbitration of an uninsured motorist claim, but the term “costs” does not encompass the term arbitration “expenses” or fees as used in the policy such as the one involved in this case. The arbitrators’ fees as items of cost appeared for the first time in this case as part of Meade’s documentation in support of his motion for summary judgment at the confirmation hearing. He filed two arbitrators’ affidavits declaring they meant to include the fees as part of the costs. Because of the holding in Rutkin v. State Farm Mutual Automobile Insurance Co., 195 So.2d 221 (Fla. 3d DCA), affirmed, 199 So.2d 705 (Fla. 1967), and the failure of the arbitrators to itemize their fees as part of the “taxable costs,” the affidavits should be disregarded because they varied and enlarged the award.

Further, since Lumbermens was not on notice that the arbitrators’ fees were included in the “taxable costs” award, it is difficult to see how it could have been expected to file a motion to modify or vacate within the ninety (90) day period. Lumber-mens opposed the arbitrators’ fees aspect of the award at its first opportunity, at the summary judgment hearing, and it is illogical to institute a rule of law that would require it to have raised this issue any earlier. Bruno.

REVERSED.

ORFINGER and COBB, JJ., concur.

      . Prior to the confirmation proceeding Lumber-mens paid the other one-half of the three arbitrators’ fees.

      . Ch. 682, Fla. Stat. (1979).

      . § 682.02, Fla. Stat. (1979).

        .Hanover Fire Ins. Co. v. Lewis, 28 Fla. 209, 10 So. 297 (1891); Lopez & Roque Title Co., Inc. v. Clearwater Dev. Corp., 291 So.2d 126 (Fla. 2d DCA 1974); 5 Am. Jur. 2d Arbitration and Award §§ 124, 147 (1962).

      . American Fidelity Fire Ins. Co. v. Richardson, 189 So.2d 486 (Fla. 3d DCA 1966), cert. denied, 200 So.2d 814 (Fla. 1967); 5 Am. Jur. 2d Arbitration and Award §§ 124, 147 (1962).

      . Midwest Mut. Ins. Co. v. Santiesteban, 287 So.2d 665 (Fla. 1973); Netherlands Ins. Co. v. Moore, 190 So.2d 191 (Fla. 1st DCA 1966).

      . See also Government Employees Ins. Co. v. Lang, 387 So.2d 976 (Fla. 2d DCA 1980).

      . § 682.11, Fla. Stat. (1979).

      . Rutkin v. State Farm Mut. Auto. Ins. Co., 195 So.2d 221 (Fla. 3d DCA), aff'd, 199 So.2d 705 (Fla. 1967).

      . Reichman v. Creative Real Estate Consultants, Inc., 476 F.Supp. 1276 (S.D.N.Y 1979); Grudem Bros. Co. v. Great Western Piping Corp., 297 Minn. 313, 213 N.W.2d 920 (1973); Martin Weiner Co. v. Fred Freund Co., 2 A.D.2d 341, 155 N.Y.S.2d 802 (App. Div. 1956), aff'd, 3 N.Y.2d 806, 166 N.Y.S.2d 7, 144 N.E.2d 647 (1957).


author: COBB, Judge.

text:
    In the Interest of J. S., a child. Evelyn HAMEL, Petitioner, v. Patricia SEEKELL; and State of Florida, Department of Health and Rehabilitative Services, Respondents.
    No. 81-1022.
    District Court of Appeal of Florida, Fifth District.
    Oct. 21, 1981.

      Marc L. Lubet of Lubet & Horwitz, P. A., Orlando, for petitioner.
    Russell H. Cullen, Jr., Altamonte Springs, for respondent Patricia Seekell.
   COBB, Judge.

Petitioner Evelyn Hamel, the grandmother of a child currently the object of dependency proceedings, seeks certiorari review of a non-final order that denied her motion to intervene in the proceedings. The issue in this case is whether the denial of Hamel’s motion to intervene was a departure from the essential requirements of the law. We hold that it was not, and deny the writ.

Hamel’s motion to intervene followed the dismissal of her petition which sought permanent commitment of the child. Her petition did not initiate the dependency proceedings; the HRS had previously filed a petition that sought to have the child adjudicated dependent. The child’s mother moved to dismiss Hamel’s petition on the ground that it was not an original petition for dependency as contemplated by section 39.404, Florida Statutes (1979), and because Hamel had no standing as a “contestant” under Chapter 61 of the Florida Statutes.

In its ruling, the trial court concluded that Hamel’s petition for dependency and commitment was a “legal nullity” under Chapter 39; the court further concluded that Chapter 61 did not apply to the proceedings. Ruling that Hamel had no standing to enter the dependency proceedings, the court prohibited her attorney from calling and cross-examining witnesses. Following the dismissal of her petition for dependency and commitment, Hamel filed her motion to intervene, which was denied. It is the denial of intervention that Hamel asks this court to review.

For the proposition that grandparents have standing in juvenile dependency hearings, Hamel cites three cases: In re K.S.K., 294 So.2d 50 (Fla. 1st DCA 1974); In re A.W., 230 So.2d 200 (Fla. 1st DCA 1970); In re R.J.C., 300 So.2d 54 (Fla. 1st DCA 1974). These cases are distinguishable from the present case and do not support Hamel’s contention. In K.S.K., a married couple who were neither the natural parents of a child nor its legal custodians, but who were its custodians-in-fact, were found to have standing to contest the state’s petition for permanent commitment for adoptive purposes. In the present case, the child’s legal custodian as well as custodian-in-fact has been the child’s mother, not Mrs. Hamel.

In A.W., paternal grandparents who had been awarded temporary custody appealed an order that removed their grandchildren from their custody and placed them with their natural mother. As with K.S.K., A. W. is distinguishable from the present case because Hamel is not the child’s custodian.

In R.J.C., the third case cited by Hamel, the court reviewed an order committing a child to a child-placing agency for subsequent adoption, and declared that the maternal grandmother’s petition for custody should be granted, thereby awarding the grandmother custody. The R.J.C. court concluded that the grandparents had standing because of then-section 39.10(5), which provided that where the parents of the child were unfit, and there was a close relative who was fit, ready, able and willing to be .awarded custody, the court was required to award custody to that close relative, rather than a foster home or state agency. This mandatory disposition was not reenacted, however, with the 1978 adoption of the comprehensive Juvenile Justice Act.

Furthermore, Chapter 61 of the Florida Statutes does not grant standing to Hamel qua grandparent in this dependency action. Section 61.131, Florida Statutes (1979), requires that before a final decree is made in a dependency proceeding, “reasonable notice and opportunity to be heard shall be given to all contestants . . . . ” [Emphasis added]. “Custody proceedings,” as defined for purposes of the Uniform Child Custody Jurisdiction Act (UCCJA), sections 61.1302-48, include child neglect and dependency proceedings. § 61.1306(3), Fla. Stat. (1979).. Chapter 61 does not avail Mrs. Hamel, however, because she'is not a “contestant” under section 61.1306(1): as a grandparent, though eligible to receive custody, she has no right to custody should the child be adjudged dependent. The trial court may choose between several disposi-tional alternatives. See § 39.41, Fla.Stat. (Supp.1980).

Likewise, Chapter 39 is devoid of authority that would allow a grandparent to enter an ongoing dependency action solely in his or her capacity as a grandparent. It was the HRS, not Mrs. Hamel, who originally petitioned for the adjudication of dependency. It is the child’s mother, not Mrs. Ham-el, who is legal custodian and custodian-in-fact; it is she, not Mrs. Hamel, who stands to lose a legal right. As previously discussed, Mrs. Hamel has no right to custody in the event the child is adjudged dependent; under the law, Mrs. Hamel will not be adversely affected by the outcome of the case.

A motion to intervene involves the exercise of the trial court’s discretion, and the trial court will not be reversed in the absence of an abuse of that discretion. Nelson Bullock Co. v. Southdown Development Co., 132 Fla. 495, 181 So. 365 (1938); Wong v. Wersebe, 365 So.2d 429 (Fla.3d DCA 1978); Wogisch v. Tiger, 193 So.2d 187 (Fla. 4th DCA 1966). See also The Florida Bar, Florida Civil Practice Before Trial § 11.9 (1975). Because as grandmother Mrs. Hamel has no right to participate in her grandchild’s dependency proceedings, and because the trial court has taken adequate steps to ensure full disclosure of all facts relevant to such determination, we cannot say that the trial court abused its discretion by denying the motion to intervene. The essential requirements of law having been met, the petition for writ of certiorari is

DENIED.

FRANK D. UPCHURCH, Jr. and COW-ART, JJ., concur.

      . Hamel’s previously-filed “Petition for Permanent Commitment to Grandparents,” filed subsequent to the petition by the Department of Health and Rehabilitative Services (HRS), had been dismissed upon motion by the child’s mother.

      . Common-law certiorari is a discretionary writ that will be issued to review non-final orders where there is a clear showing that the body below:
      (a) departed from the essential requirements of the law;
      (b) resulting in material harm;
      (c) for which remedy by appeal would be inadequate.

        Hawaiian Inn of Daytona Beach, Inc. v. Snead Construction Corp., 393 So.2d 1201 (Fla. 5th DCA 1981); Schonfeld v. Hughes Supply, Inc., 392 So.2d 324 (Fla. 1st DCA 1980); Briggs v. Salcines, 392 So.2d 263 (Fla. 2d DCA 1980), review denied, 397 So.2d 779 (Fla. 1981); Pic v. Hoyt Development Co., Inc., 309 So.2d 586 (Fla. 2d DCA 1975).

      .Sub-section 1 provides:
      All proceedings seeking an adjudication that a child is dependent shall be initiated by the filing of a petition by the state attorney, an authorized agent of the Department, or any other person who has knowledge of the facts alleged or is informed of them and believes that they are true.

      . Subsequent to disposition, Mrs. Hamel could, as an “interested person,” petition the court for a change in placement, based upon a “need for a change in the placement.” § 39.41, Fla.Stat. (Supp.1980). But even if there was a need for a change, Mrs. Hamel would not be entitled to custody merely because she brought the petition. See Id.

      . We would reach the same result had Mrs. Hamel moved to become a party pursuant to Florida Rule of Juvenile Procedure 8.340. We do not herein address the issue of whether the juvenile rules are the exclusive mode of becoming an additional party to a dependency proceeding.


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

text:
    TRAVELERS INDEMNITY COMPANY, an insurance corporation, Appellant, v. Paula M. GORMAN and Charles E. Gorman and Fireman’s Fund Insurance Company, an insurance corporation, Appellees. FIREMAN’S FUND INSURANCE COMPANY, an insurance corporation, Appellant, v. Paula M. GORMAN and Charles E. Gorman, Appellees.
    Nos. 80-1271, 80-1354.
    District Court of Appeal of Florida, Fifth District.
    Oct. 21, 1981.
    Ronald L. Harrop of Gurney, Gurney & Handley, P. A., Orlando, for appellant Travelers Indemnity Co.
    Chobee Ebbets, Daytona Beach, for appellant Fireman’s Fund.
    Wesley A. Fink of Fink, Loucks & Sweet, Daytona Beach, for appellees.
   FRANK D. UPCHURCH, Jr., Judge.

Travelers Indemnity Company appeals from an order granting summary judgment in favor of its insured, Paula M. Gorman. Fireman’s Fund Insurance Company appeals from an order granting summary judgment in favor of its insured, Charles E. Gorman. These two cases which arose from claims for personal injury protection benefits for the same accident have been consolidated for appeal.

Robert Kirwin, the minor child of appel-lee Paula Gorman, was injured on November 1, 1979, when he, while riding a bicycle, was struck by a motor vehicle. The Gor-mans incurred medical damages totalling $13,443.10 for the child’s treatment.

Mrs. Gorman was insured by Travelers; Mr. Gorman by Fireman’s Fund. Each policy provided benefits up to a limit of $10,-000. Travelers and Fireman’s Fund each paid $5,000 and contend that the $10,000 thus paid is the maximum they are obligated to pay as provided in section 627.736(1) and (4)(e), Florida Statutes (1979). In ruling in favor of the Gormans, the trial court held that the two policies could be “stacked” thus providing for an aggregate total of $20,000 in PIP benefits.

The two insurance policies involved here contain the following provision:

Regardless of the number of persons insured, policies or bonds applicable, vehicles involved or claims made, the total aggregate limit of personal injury protection benefits available under the Florida Automobile Reparations Reform Act, as amended, from all sources combined, including this policy, for all loss and expense incurred by or on behalf of any one person who sustains bodily injury as a result of any one accident shall be $10,-000....

Section 627.419, Florida Statutes (1979), provides that every insurance contract shall be construed according to the entirety of its terms and conditions as set forth in the policy and as amplified, extended or modified by any application or any rider or endorsement. The insurance contract thus determines the conditions and limits of coverage unless its provisions are contrary to law. Atkins v. Bellefonte Ins. Co., 342 So.2d 837 (Fla.3d DCA 1977).

As was noted above, the two policies involved provide for an aggregate limit of $10,000 of PIP benefits. The Gormans, however, claim that these provisions conflict with section 627.4132, Florida Statutes (1979), which they contend allows them to stack the coverage from the two policies for an aggregate limit of $20,000.

Section 627.4132 provides as follows:

If an insured or named insured is protected by any type of motor vehicle insurance policy for liability, uninsured motorist, personal'injury protection, or any other coverage, the policy shall provide that the insured or named insured is protected only to the extent of the coverage he has on the vehicle involved in the accident. However, if none of the insured’s or named insured’s vehicles is involved in the accident, coverage is available only to the extent of coverage on any one of the vehicles with applicable coverage. Coverage on any other vehicles shall not be added to or stacked upon that coverage. This section shall not apply to reduce the coverage available by reason of insurance policies insuring different named insureds. (Emphasis added).

The Gormans contend that the last sentence of section 627.4132 applies because the two policies were issued to different named insureds and therefore the total coverage of $20,000 cannot be reduced.

However, section 627.736 provides:

(1) Required benefits. — Every insurance policy complying with the security requirements of s.627.733 shall provide personal injury protection providing for payment of all reasonable expenses incurred for necessary medical, surgical, X-ray, dental, and rehabilitative services, including prosthetic devices; necessary ambulance, hospital, and nursing services; and funeral and disability benefits to the named insured, relatives residing in the same household, persons operating the insured motor vehicle, passengers in such motor vehicle, and other persons struck by such motor vehicle and suffering bodily injury while not an occupant of a self-propelled vehicle, all as specifically provided in subsection (2) and paragraph (4)(d), to a limit of $10,000 for loss sustained by any such person as a result of bodily injury, sickness, disease, or death arising out of the ownership, maintenance, or use of a motor vehicle....
******
(4)(e) If two or more insurers are liable to pay personal injury protection benefits for the same injury to any one person, the maximum payable shall be as specified in subsection (1), and any insurer paying the benefits shall be entitled to recover from each of the other insurers an equitable pro-rata share of the benefits paid and expenses incurred in processing the claim. (Emphasis added.)

While the wording “the maximum payable” in subsection (4)(e) might be construed as the “maximum payable by any insurer,” we cannot logically come- to this conclusion. To do so would in effect say that subsection (4)(e) has no purpose because the maximum payable in any event by an- insurer would be $10,000, the maximum coverage afforded by the policy. Therefore, we must conclude that the Legislature has specifically limited the amount payable for the injury to $10,000.

While the rationale for this statute may be apparent to those who understand and are comfortable with the esoteric field of insurance risk prediction, it is not to us. The Gormans each bought and paid for insurance covérage. Each policy, standing alone, covered the first $10,000 of their child’s injuries but because of subsection (4)(e), the conclusion is mandated that a total of $10,000 is all they can recover. But, because they each purchased coverage, the carriers’ liability is diminished. Although we cannot justify this conclusion, we cannot interpret the statute and policy in any other manner.

REVERSED.

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

      . The limit in the Fireman’s Fund policy is listed as $5,000; however, the insurance company stipulated that the limit had been increased to $10,000.

      . See also Farm Mutual Auto. Ins. Co. v. Kil-breath, 362 So.2d 474 (Fla. 4th DCA 1978); Travelers Indemnity Co. v. Wolf son, 348 So.2d 661 (Fla. 3d DCA 1977).


text:
    Bernard BISHOP, Dan Worsham and Ronald Forbell, Appellants, v. Melvin KELLY, Sheriff of Hernando County, and William F. Edwards, Hernando County Sheriff’s Office, Appellees.
    No. 81-138.
    District Court of Appeal of Florida, Fifth District.
    Oct. 21, 1981.
    James W. O’Neill, Jr., Law Offices of William F. Casler, Sr., St. Petersburg, for appellants.
    Joseph E. Johnston, Jr., and Julius F. Parker, Jr., of Madigan, Parker, Gatlin, Swedmark & Skelding, Tallahassee, for ap-pellees.
   PER CURIAM.

An order dismissing a complaint with leave to amend is a non-final order. As such, it is not appealable prior to final dismissal. Hancock v. Piper, 186 So.2d 489 (Fla.1966); Petnuch v. Smith, 395 So.2d 294 (Fla. 5th DCA 1981). Accordingly, this appeal is sua sponte

DISMISSED.

DAUKSCH, C. J., and COBB and SHARP, JJ., concur.


text:
    Sandra L. ANDERSON, Appellant, v. Harold D. ANDERSON, Appellee.
    No. 81-209.
    District Court of Appeal of Florida, Fifth District.
    Oct. 21, 1981.
    Garrett L. Briggs of Adams & Briggs, Daytona Beach, for appellant.
    Lew Merryday, Jr., Palatka, and Steven D. Merryday of Holland & Knight, Tampa, for appellee.
   PER CURIAM.

AFFIRMED.

See Bailey v. Deebold, 351 So.2d 355 (Fla.2d DCA 1977), cert. denied, 359 So.2d 1213 (Fla.1978).

COBB, SHARP and COWART, JJ., concur.


text:
    David L. ELLERBY, Appellant, v. STATE of Florida, Appellee.
    No. 81-262.
    District Court of Appeal of Florida, Fifth District.
    Oct. 21, 1981.
    James B. Gibson, Public Defender, and Thomas R. Mott, Asst. Public Defender, Daytona Beach, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Barbara Ann Butler, Asst. Atty. Gen., Day-tona Beach, for appellee.
   SHARP, Judge.

Appellant pled guilty to the offense of robbery in violation of section 812.13(2)(c), Florida Statutes (1979). Although the pre-sentence investigation indicated that appellant met the statutory criteria of a youthful offender as established in section 958.04, Florida Statutes (1979), the trial judge refused appellant’s request to be sentenced under that statute and sentenced appellant to ten years imprisonment with credit for time previously served. The State agrees that appellant meets the statutory requirements and is entitled to be sentenced as a youthful offender. See Evans v. State, 398 So.2d 1018 (Fla.5th DCA 1981); Warren v. State, 391 So.2d 775 (Fla.4th DCA 1980); Killian v. State, 387 So.2d 385 (Fla.2d DCA 1980).

Accordingly, the judgment is affirmed but the sentence is vacated and this cause is remanded for resentencing.

AFFIRMED AND REMANDED FOR RESENTENCING.

COBB and COWART, JJ., concur.


text:
    Ralph Douglas MOSBY, Appellant, v. STATE of Florida, Appellee.
    No. 81-268.
    District Court of Appeal of Florida, Fifth District.
    Oct. 21, 1981.
    Richard S. Rhodes, Orlando, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and James Dickson Crock, Asst. Atty. Gen., Daytona Beach, for appellee.
   PER CURIAM.

AFFIRMED. Pope v. State, 56 Fla. 81, 47 So. 487 (1908); Ivey v. Eastmoore, 402 So.2d 1248 (Fla. 5th DCA 1981).

COBB, SHARP and COWART, JJ., concur.


author: COWART, Judge.

text:
    Gregory R. BAKER, Appellant, v. STATE of Florida, Appellee.
    No. 81-631.
    District Court of Appeal of Florida, Fifth District.
    Oct. 21, 1981.
    Gregory R. Baker, pro se.
    No appearance for appellee.
   COWART, Judge.

This is an appeal under Florida Rule of Appellate Procedure 9.140(g) from the summary denial of a motion for post-conviction relief under Florida Rule of Criminal Procedure 3.850 claiming the inadequate and ineffectual assistance of trial counsel. The motion claims that appellant’s trial counsel (1) “neglected his rights of using his witnesses for trial for his own behalf” and (2) “neglected to file any pre-trial motion with the court regarding the defendant’s continuously ongoing mental disorder which is marked by his often loss of contact with reality and his severe personality disintegration.”

We hold these conclusory allegations to be facially insufficient and this appeal to be without merit. As to the allegations relating to counsel’s failure to call unidentified witnesses to give undescribed testimony of unknown admissibility, materiality and relevancy, see Ables v. State, 404 So.2d 137 (Fla. 5th DCA 1981).

“Mental disorder,” “loss of contact with reality” and “severe personality disintegration” are mere vague claims and conclusions. Unrelated to objective symptoms and to the time and place of trial, these statements are insufficient to demonstrate that defense counsel had “reason to believe that the defendant may be incompetent to stand trial or that he may have been insane at the time of the offense,” Fla.R.Crim.P. 3.216, and insufficient to allege a duty on the defense counsel to inform the court and to initiate the procedures provided in Florida Rules of Criminal Procedure 3.210 through 3.216.

There are those who say that most persons who commit serious crimes suffer from some degree of personality disorder, often manifested by such an aversion to truth and reality that they see their difficulties as resulting only from the faults of others and not from their own acts. Defense counsel, prosecutors and trial judges deal daily with accuseds suffering all degrees of mental disorders. A rare case escaping their combined experience, attention and powers of observation would not necessarily constitute evidence of such neglect of duty by defense counsel as to amount to ineffective assistance of counsel justifying post-conviction relief from judgment and sentence. Motions for post-conviction relief in those cases justifying a reasonable concern that such an event might have occurred should be documented by the professional opinions of doctors or trained personnel in classification centers or confinement facilities. A motion by a prisoner asserting, as the basis for his claim of ineffective assistance of counsel, his own mental incompetence at the time of trial, in general terms with no corroboration and no evidence of confirmation does not warrant or mandate an evidentiary hearing.

AFFIRMED.

DAUKSCH, C. J., and COBB, J., concur.


text:
    Nancy Elizabeth PICKETT, as Personal Representative of the Estate of Wilbur Crafts Pickett, Jr., Deceased, et al., Appellants, v. T. Michael WOODS, Successor Personal Representative of the Estate of Jack L. Byrd, Deceased, Foremost Insurance Company, a Michigan corporation, et al., Appellees.
    No. 80-1112.
    District Court of Appeal of Florida, Fifth District.
    Oct. 21, 1981.
    Lester A. Lewis of Smalbein, Eubank, Johnson, Rosier & Bussey, P. A., Daytona Beach, for appellants.
    David William Boone of Dolan, Fertig & Curtis, P. A., Fort Lauderdale, for appellee Foremost Insurance Co.
    No appearance for appellees Woods and Sellers.
   FRANK D. UPCHURCH, Jr., Judge.

Appellant Nancy Pickett’s husband, Dr. Wilbur Pickett, was killed in an aircraft accident. The trial court held that a policy issued by appellee Foremost Insurance Company did not cover the liability as claimed by appellant. An exclusion in the policy provided in pertinent part:

This policy does not apply:

4. to any insured
(b) who operates or permits the operation of the aircraft, while in flight, unless its airworthiness certificate is in full force and effect. . . .

After the issue of coverage had been severed for jury trial, the jury in a special verdict found that the aircraft did not have a valid airworthiness certificate in force at the time of the accident. The court then entered judgment holding that Foremost was not subject to liability. Appellant appeals from that judgment.

Appellant has raised several points on appeal but the only one which requires discussion is whether section 627.409(2), Florida Statutes (1979) prevents Foremost from escaping liability. This section provides:

A breach or violation by the insured of any warranty, condition, or provision of any wet marine or transportation insurance policy, contract of insurance, endorsement, or application therefore shall not render void the policy or contract, or constitute a defense to a loss thereon, unless such breach or violation increased the hazard by any means within the control of the insured.

Appellant argues that because the crash was due to pilot error (the plane flew into the ground while attempting to land in bad weather) and not the result of any malfunction, the failure to have a valid airworthiness certificate did not contribute to the accident and that therefore, the statute should apply and prevent the insurance company from relying on the exclusion to deny coverage. We agree and REVERSE.

Appellees rely on Bill Hames Shows, Inc. v. J. J. Taylor Syndicate # 173, 642 F.2d 179 (5th Cir.1981), wherein the court held that an alteration of the aircraft’s rudder invalidated the craft’s airworthiness certificate and therefore the insurance coverage which required such a certificate was suspended at the time of the crash. The court noted that the fact that the alteration may have been innocuous to normal operation of the aircraft was irrelevant. The court quoted from Glades Flying Club v. Americas Aviation & Marine Ins. Co., 235 So.2d 18 (Fla. 3d DCA 1970):

An aircraft insurance policy may validly condition liability coverage on compliance with a governmental regulation and, while non-compliance with such a regulation continues, the insurance is suspended as if it had never been in force. There need be no causal connection between the non-compliance and the loss or injury.

642 F.2d at 180.

Glades, however, was prior to the enactment of section 627.409(2). This statute speaks of breach by the insured of any “warranty, condition, or provision” of the policy. Here we are confronted with what was labeled in the policy as an exclusion. However, we believe that whether a policy warranty, condition, or exclusion is involved is not determinative. The Legislature apparently recognized the difficulty courts and insurance companies have had in distinguishing between these terms and used the word “provision” which would include any material portion of the policy. See 43 Am. Jur.2d Insurance §§ 751 and 756 (1969). See also World Insurance Company v. Kincaid, 145 So.2d 268 (Fla. 1st DCA 1962); Benton Casing Service, Inc. v. Avemco Insurance Co., 379 So.2d 225 (La.1979); Rodriguez v. Northwestern National Ins. Co., 358 So.2d 1237 (La.1978). Section 627.409(2) provides that the breach of the provision, in this case the failure to have the aircraft properly certified, must have increased the hazard. In the case before us, the crash was apparently caused when the non-instrument rated pilot flew into adverse weather conditions with which he could not cope because he lacked the ability or training. The statute is designed to prevent the insurer from avoiding coverage on a technical omission playing no part in the loss. If the appellee’s interpretation were accepted, it would actually be to the insurer’s advantage that the insured failed to renew the airworthiness certificate. In such event, the insurer would collect a premium but would have no exposure to risk because the policy would no longer be effective.

From the facts as stated, there seems to be no dispute that pilot error was the only cause of the accident. The only issue submitted to the jury was whether the aircraft was properly certified. The issue of whether the breach of the policy provision, i. e., that the aircraft be properly certified, increased the hazard as provided in section 627.409(2), Florida Statutes (1979), has not been judicially determined.

We therefore REVERSE and REMAND for further proceedings consistent herewith.

SHARP and COWART, JJ., concur.


author: ORFINGER, Judge.

text:
    Roland TERRY, Petitioner, v. STATE of Florida, Respondent.
    No. 81-1198.
    District Court of Appeal of Florida, Fifth District.
    Oct. 21, 1981.
    Roland Terry, pro se.
    No appearance for respondent.
   ORFINGER, Judge.

Petitioner seeks relief by way of habeas corpus from an earlier affirmance of his conviction for armed robbery and kidnapping, alleging ineffective assistance of appellate counsel in his original appeal to the court. We deny the requested relief.

A claim for relief based on alleged ineffective assistance of appellate counsel is properly presented to this court by way of petition for habeas corpus. Knight v. State, 394 So.2d 997 (Fla.1981). In Knight, the Supreme Court laid down these principles upon which such petition must he based:

(1) The specific omission or overt act upon which the claim of ineffective assistance of counsel is based must be detailed in the appropriate pleading.
(2) The defendant has the burden to show that this specific omission or overt act was a substantial and serious deficiency measurably below that of competent counsel. To be ‘below average’ is not enough, for that is self evidently the case half the time.
(3) The defendant has the burden to show that this specific, serious deficiency, when considered under the circumstances of the individual case, was substantial enough to demonstrate a prejudice to the defendant to the extent that there is a likelihood that the deficient conduct affected the outcome of the court proceedings. In the case of appellate counsel, this means the deficiency must concern an issue which is error affecting the outcome, not simply harmless error.
(4) The State must have an opportunity to rebut by showing beyond a reasonable doubt no prejudice in fact.

Petitioner has not complied with the first three principles, so there is no need for the State to rebut. Petitioner alleges that there were cases which would have been pertinent which his appellate counsel did not cite, but he does not demonstrate: (1) the specific defect or omission in the proceedings to which these cases would point; (2) how and why the omission to cite these cases was a substantial and serious deficiency measurably below that of competent counsel; and (3) that such omission was substantial enough to demonstrate prejudice to petitioner of such magnitude as to constitute reversible, not harmless error. Until a petitioner meets his initial burden, there is nothing for the State to rebut, nor can we grant relief.

The petition for habeas corpus is DENIED.

FRANK D. UPCHURCH, Jr. and COW-ART, JJ., concur.

      . Terry v. State, 397 So.2d 1040 (Fla.5th DCA 1981).


author: OTT, Judge.

text:
    LOCAL CONSUMER ENTERPRISES CORP., a Delaware Corporation, Appellant, v. Ross C. F. HADLEY, Appellee.
    No. 80-1366.
    District Court of Appeal of Florida, Second District.
    Oct. 21, 1981.
    Andrew J. Britton of Isphording, Payne, Korp & Muirhead, P.A., Venice, for appellant.
    W. Russell Snyder, Venice, for appellee.
   OTT, Judge.

Following entry of appellant’s default and an ex parte hearing on damages, the court below entered final judgment against appellant on October 5, 1978. On October 16 appellant, an out-of-state corporation, filed a motion for relief under Rule 1.540, on the grounds that (1) its New York attorney was excusably negligent in failing to realize the consequences of a letter from appellee’s attorney terminating the settlement negotiations which had extended over the previous six months, and (2) the judgment was void because appellee failed to comply with Florida’s “long-arm” statute in effecting service.

The motion was set for hearing on December 20. On November 2 appellant filfed a notice of appeal from the judgment, in order to protect the timeliness of the appeal. On December 20 the trial court refused to consider the 1.540 motion because the intervening appeal “constituted an abandonment of the motion.”

During the pendency of the appeal, appellant moved this court to relinquish jurisdiction to the trial court so that its 1.540 motion, which was described in detail, could be heard. As a consequence, our per cu-riam affirmance of the judgment on June 13, 1979 noted:

Affirmed without prejudice to the appellant’s right to seek to set aside the default and final judgment by motion filed pursuant to Fla.R.Civ.P. 1.540, 372 So.2d 1136, Fla.App.

Appellant’s petition for certiorari was denied by the Florida Supreme Court on February 20, 1980, 383 So.2d 1197, Fla., and on April 3 appellant filed a second 1.540 motion in the trial court, on the same grounds as the motion filed October 16,1978. When that motion came on for hearing the trial court refused to consider it because (1) it was not timely, and (2) the validity of the judgment had been conclusively and finally established by the affirmance of this court.

With the greatest respect for the court below, we must disagree with both of its conclusions. We think the second 1.540 motion was merely appellant’s solution to the practical problem of how to get its original motion back before the court, which had not denied it but instead simply refused to hear it while the court was divested of jurisdiction to do so. The original motion was timely, and in our opinion was again properly before the court when its jurisdiction was reinvested by our mandate.

As to the second point relied upon by the court, while it is normally true that an affirmance on appeal, when final, renders a voidable judgment impervious to further attack, that does not follow when the opinion of the appellate court expressly leaves open an issue or issues pertaining to the validity of the judgment. Our opinion, handed down with full knowledge of appellant’s 1.540 motion, explicitly preserved his right to pursue that motion on its already designated grounds.

The case is REMANDED with instructions to the court below to consider the merits of the motion filed by appellant October 16, 1978.

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


author: GRIMES, Judge.

text:
    CITY OF CLEARWATER (FIRE DEPARTMENT), Appellant, v. John J. LEWIS, III, International Association of Fire Fighters, Local 1158, and the Public Employees Relations Commission, Appellees.
    No. 80-1715.
    District Court of Appeal of Florida, Second District.
    Oct. 21, 1981.

      Frank Kowalski, Chief Asst. City Atty., Clearwater, for appellant.
    Rodney W. Smith, Gainesville, for appel-lees Lewis and International Association of Fire Fighters, Local 1158.
    Vernon Townes Grizzard and N. Sherrill Newton, Tallahassee, for appellee Public Employees Relations Commission.
   GRIMES, Judge.

The City of Clearwater seeks review of a determination by the Public Employees Relations Commission (PERC) that it committed an unfair labor practice with respect to the termination of one of its employees.

The city was charged with violating section 447.501(l)(a) and (b), Florida Statutes (1977), by refusing to permit John J. Lewis, III, to consult with a union representative at a meeting which resulted in his termination of employment. After the taking of testimony, a hearing officer made the following pertinent findings of fact. The city hired Lewis as a probationary fire fighter on February 14, 1977, and continued him as a probationary employee at all times during his employment. On February 15, 1978, Chief Pitts and Assistant Chief King called him into the chief’s office. The chief told him that it was necessary to terminate his employment and gave as one of the reasons several of his performance evaluations. Chief Pitts gave him the option of resigning or being dismissed. The chief had decided to terminate Lewis before the meeting but called the meeting in order to review the performance evaluations with him and to give Lewis the option of resignation in order to protect his employment record. Lewis asked Chief Pitts if he could think over the choices and speak to the union. The chief told Lewis that the decision to terminate him had already been made and that consultation with a union representative would not change the decision. Lewis then signed a resignation form which the chief’s secretary had prepared in advance.

In his recommended order, the hearing officer observed that Chief Pitts could not deny Lewis the right to the presence of a union representative at the interview simply because Lewis occupied a probationary status. He also pointed out that Lewis had made a valid -request for representation. However, the hearing officer concluded that the chief had not refused Lewis the right to have a union representative present, because he merely told Lewis that it wouldn’t change his decision, and Lewis then decided to forego his right to representation and sign the resignation papers.

PERC adopted the hearing officer’s findings of fact with one exception not pertinent to this review. However, by a split decision, PERC concluded that on these facts the city had committed an unfair labor practice by continuing the meeting after Lewis had requested union representation. PERC reasoned as follows:

When Lewis was initially ordered to report downtown, and at the outset of the meeting with Chief Pitts, he had no indication of what was to transpire, and no reason to believe he might be disciplined. Thus, he had no reason to request union representation at that point. But when the Chief presented Lewis with the option of resigning or being dismissed, he posed a choice which Lewis could reasonably have believed might have significant adverse impact on his job interests and employment record. For example, whether Lewis resigned or was dismissed may well have been dispositive of his right to grieve under the collective bargaining agreement in effect between the parties. § 447.401, Fla.Stat. (1979); see generally Leon County CTA v. Leon County School Board, 6 FPER ¶ 11001 (1979). Second, Lewis’ right to appeal under civil service was likewise implicated, a right which may also have depended on whether Lewis attained permanent employee status by the time of the meeting with Chief Pitts. § 447.401, Fla.Stat. (1979). Thus, the alternative of resignation, while protecting Lewis’ employment record from the possible stigma of a dismissal, might have foreclosed the possibility of his remaining on the job by challenging successfully the grounds for his dismissal.
These employment interests were at stake as Lewis contemplated the alternatives presented him by the Chief. To request union representation when making that choice, is we believe, “to engage in concerted activities not prohibited by law, for the purpose of ... mutual aid or protection.” § 447.301(3), Fla.Stat. (1979). As the United States Supreme Court stated in an analogous situation in NLRB v. Weingarten, Inc., 420 U.S. 251, 260-61, 95 S.Ct. 959, 965, 43 L.Ed.2d 171 (1975), this is true even though the employee alone may have an immediate stake in the outcome:
The union representative whose participation he seeks is, however, safeguarding not only the particular employee’s interest, but also the interests of the entire bargaining unit by exercising vigilance to make certain that the employer does not initiate or continue a practice of imposing punishment unjustly. The representative’s presence is an assurance to other employees in the bargaining unit that they, too, can obtain his aid and protection if called upon to attend a like interview. (Footnote omitted.)
All employees have an interest in knowing that they may request the presence of a union representative should they be confronted with the option of resigning or being dismissed.
After being offered the option of resigning or being dismissed, Lewis asked to contact the union. The Hearing Officer did not find as a fact that Lewis ever withdrew his request for union representation. As the Hearing Officer analyzed the case, the fact that Lewis remained and signed resignation papers after the Chief told him the presence of a union representative would not change anything implies that Lewis decided to waive his request. The Commission disagrees with the Hearing Officer’s analysis on this point.
In another context, the Commission has held that waiver must be “clear and unmistakable.” Palowitch v. Orange County School Board, 3 FPER 280, 282 (1977), aff’d, 367 So.2d 730 (Fla. 4th DCA 1979). With regard to this question, a commentator has written:
Before inferring that a waiver has occurred . .. the Board must assure itself that the employee acted knowingly and voluntarily. The right being waived is designed to prevent intimidation by the employer. It would be incongruous to infer a waiver without a clear indication that the very tactics the right is meant to prevent were not used to coerce a surrender of protection.
Comment, “Union Presence in Disciplinary Meetings,” 41 U.Chi.L.Rev. 329, 350 (1974) (cited by United States Supreme Court in NLRB v. J. Weingarten, Inc., supra). For the reasons discussed below, the Commission concludes that the factual circumstances of this case do not demonstrate such a “clear and unmistakable” waiver.
The Commission has not disturbed the Hearing Officer’s finding of fact that “Chief Pitts did not refuse the Charging Party permission to contact the union or have a union representative present” at the interview. Nevertheless, after Lewis once made a request for union representation, the Chief avoided a direct response, continued the meeting without responding to Lewis’ request, and told Lewis that representation would not change anything. Under these circumstances, the Commission concludes that Lewis’ failure to persist in his request for union representation does not constitute a “clear and unmistakable” waiver of representation. Accord, Southwestern Bell Telephone Co., 227 NLRB 1223 (1977).
In Seitz v. Duval County School Board, 4 FPER ¶4154 (1978), rev’d in part on other grounds, 366 So.2d 119 (Fla. 1st DCA 1979), the Commission adopted the rationale of NLRB v. J. Weingarten, Inc., supra, thus guaranteeing to public employees the right to union representation in an investigatory or disciplinary interview if an employee has a reasonable belief that disciplinary action may result from the interview. The instant case is somewhat different from factual situations governed by the Weingarten case. Lewis’ request for union representation was prompted not by apprehension that he might be disciplined, as was the case in Weingarten and Seitz, but by his concern that significant adverse consequences would result from the choice between resignation and dismissal. In both situations, however, the right to union representation arises from the Section 447.-301(3) right to act for “mutual aid or protection.” Once the right to representation attaches, and a request is made, the duty of the public employer is the same.
Forthright guidelines for the future conduct of public employers, public employees, and employee organizations can best be provided by implementing this right to union representation in the following manner: When a public employer offers an employee an option to resign or be dismissed at a meeting with the employer, and the employee requests union representation, the employer is permitted one of three alternatives.!!
(1) grant the request; (2) discontinue the meeting; or (3) offer the employee the choice of continuing the meeting unaccompanied by a union representative or having no meeting at all.
An employer may not continue the meeting in the absence of requested union representation unless the employee voluntarily and expressly agrees to remain unrepresented after the employer presents the employee with the choices mentioned in alternative (3) above. See United States Postal Service, 241 NLRB No. 18 (1979). An employer, under alternative (2) above, retains the right to revoke the option of resignation, discontinue the meeting, and dismiss the employee in accordance with his previous decision to terminate the employee’s employment.
The Commission is satisfied that neither the letter nor the spirit of this requirement was observed in the instant case. Chief Pitts did not grant Lewis’ request for union representation, did not discontinue the meeting, and did not offer Lewis the choice of continuing the meeting unaccompanied by a union representative or having no meeting at all. Instead, Chief Pitts, having proposed the option of resignation, told Lewis that the presence of a union representative would not do him any good, since the decision to terminate Lewis’ employment either by dismissal or by Lewis’ resignation had already been made. In so conducting this meeting, Chief Pitts engaged in an unfair labor practice in violation of Section 447.-501(1)(a), Florida Statutes (1979).

(Footnotes omitted.) PERC revoked Lewis’ resignation and ordered the city to present him with the option of resigning or being dismissed effective retroactively to February 15, 1978.

The city raises two points which merit discussion. First, it contends that PERC erred in concluding that an employee has a right to union representation at a non-investigatory meeting at which he is simply given the option to resign or be dismissed. It also argues that PERC improperly overruled the hearing officer’s finding that Lewis had waived his right to union representation when there was evidence in the record to support the findings. We will treat the points in the order stated.

In NLRB v. J. Weingarten, Inc., 420 U.S. 251, 95 S.Ct. 959, 43 L.Ed.2d 171 (1975), the court considered whether the denial of an employee’s request to have a union representative present during an interview concerning the employee’s suspected theft constituted an unfair labor practice. The Supreme Court reversed the court of appeals and reinstated a determination by the National Labor Relations Board that the action of the employee in seeking to have the assistance of a union representative at the conference with his employer fell within the wording of the National Labor Relations Act which provides that employees have the right to engage in concerted activities for the purpose of mutual aid and protection. The Court upheld NLRB’s construction that an employee has a right to have union representation at an interview where he reasonably believes that the investigation will result in disciplinary action.

On the other hand, the NLRB has recently held that an employee has no right to union representation at a meeting with his employer held solely for the purpose of informing the employee of a previously determined disciplinary decision. Baton Rouge Water Works, 246 NLRB 161 (1979). At the same time the Board stated:

We stress that we are not holding today that there is no right to the presence of a union representative at any “disciplinary” interview. Indeed, if the employer engages in any conduct beyond merely informing the employee of a previously made disciplinary decision, the full panoply of protections accorded the employee under Weingarten may be applicable.

Id. at 7.

PERC’s order goes beyond Weingarten because PERC adopted the hearing officer’s finding that Chief Pitts had made up his mind to fire Lewis before the meeting. Therefore, the meeting was not an investigatory interview which might result in disciplinary action as contemplated by Wein-garten. On the other hand, Chief Pitts’ meeting with Lewis was something more than one to advise Lewis of a predetermined decision to fire him because the chief was also offering Lewis the option to resign. In the words of PERC, Lewis’ request for union representation was prompted “not by apprehension that he might be disciplined” but rather “by his concern that significant adverse consequences would result from a choice between resignation and dismissal.” PERC reasoned that in both situations the entitlement to union representation arose from the statutory “right to act for ‘mutual aid and protection.’ ”

PERC Commissioner Parrish in his partially dissenting opinion in this case made the argument that Lewis was not entitled to the Weingarten type of protection when he said:

Suffice it to say that on the facts in this case the Charging Party did not have a statutory right to the presence of a union representative at his termination meeting. The Charging Party was not forced to participate in an investigatory interview. Nor was he forced to disclose any information or take any action which was inimical to his job interests or to those of his fellow employees. The decision to terminate his employment had been made prior to the meeting and the meeting was held solely for the purposes of advising Lewis of the termination, advising him of the reasons for the termination, and advising him that he had an opportunity to resign in lieu of being terminated.
Had the Charging Party been “forced” to choose between termination or resignation I might view this case otherwise. However, there is nothing in the findings of fact upon which to conclude that Respondent in any way coerced or intimated the Charging Party into signing a resignation document. Obviously Lewis was faced with a hard choice, but a hard choice is better than none at all. Further, it strains logic to conclude that an employer, by giving an employee an option to which the employee has no legal entitlement, thereby creates a situation in which the employer is vulnerable to a charge that it has deprived an employee of a right. It cannot be doubted that an option to resign in the face of certain termination can often be an option much sought after and desired by employees, and it is predictable thát as a result of the majority’s formulation of an interpretation of Section 447.301(3), Florida Statutes (1979), which exposes employers to Weingarten-type liability for offering their employees an opportunity to resign, such opportunities will become quite scarce in the future.

In reaching our decision, this court must first determine whether to independently decide if the Florida Public Employees Labor Relations Act gives an employee the right to union representation at an interview in which he is given the option to be fired or resign or whether to accept PERC’s determination that he has such a right. Reference to the act suggests that we should defer to the Commission. The statement of policy expressly charges PERC with “promoting harmonious and cooperative relationships between government and its employees, both collectively and individually.” § 447.201, Fla.Stat. (1977). It was specifically created to “assist in resolving disputes between public employees and public employers.” § 447.-201(3), Fla.Stat. (1977). In remedying unfair labor practices, it is entitled to order such action “as will best implement the general policies expressed in this part.” § 447.503(6)(a), Fla.Stat. (1977). These provisions indicate a legislative intent to delegate to PERC a range of discretion within which to make policy determinations necessarily involved in the interpretation and application of the “mutual aid and protection” guarantee set forth in section 447.-301(3). Thus, an expert .tribunal such as PERC is entitled to substantial deference in recognition of its special competence in dealing with labor problems. It is not our province to displace its choice between two conflicting views simply because we would have been justified in deciding the issue differently were it before us in the first instance. See Pasco County School Board v. PERC, 353 So.2d 108 (Fla. 1st DCA 1977).

PERC was making policy when it determined that the Weingarten protections are applicable to situations in which an employee is given an option to resign or be fired. Commissioner Parrish persuasively suggests that the adoption of this policy may result in fewer employees being given the option to resign. On the other hand, an employee’s decision to resign rather than be fired can affect his substantial rights, and the advice of a union representative who is knowledgeable in these matters is likely to result in a more informed decision. Since there is a reasonable basis for the policy established by PERC in this case which is consistent with the philosophy of chapter 447, we will not disturb it. Cf. School Board v. PERC, 399 So.2d 520 (Fla. 2d DCA 1981), in which this court overturned a PERC order deemed to be arbitrary and out of harmony with the Public Employees Labor Relations Act.

We also agree with PERC’s contention that it did not improperly overrule the hearing officer’s findings of fact on waiver. PERC simply held that the facts as found by the hearing officer did not constitute a waiver by Lewis of his right to union representation. Even Commissioner Parrish agreed that Lewis’ action of continuing with the meeting and ultimately signing the resignation did not constitute a clear and unmistakable waiver of his right to union representation. To the extent that the determination of whether a waiver occurred could be considered to be a question of fact, it is the kind of factual issue on which an agency has more discretion to overrule a hearing examiner in the implementation of agency policy. Thus, in McDonald v. Department of Banking & Finance, 346 So.2d 569 (Fla. 1st DCA 1977), the court wrote:

In determining whether substantial evidence supports the agency’s substituted findings of fact, a reviewing court will naturally accord greater probative force to the hearing officer’s contrary findings when the question is simply the weight or credibility of testimony by witnesses, or when the factual issues are otherwise susceptible of ordinary methods of proof, or when concerning those facts the agency may not rightfully claim special insight.
At the other end of the scale, where the ultimate facts are increasingly matters of opinion and opinions are increasingly infused by policy considerations for which the agency has special responsibility, a reviewing court will give correspondingly less weight to the hearing officer’s findings in determining the sub-stantiality of evidence supporting the agency’s substituted findings.
Thus, the substantiality of evidence supporting an agency’s substituted finding of fact depends on a number of variables: how susceptible is the factual issue to resolution by credible witnesses and other evidence, how substantially the hearing officer’s discarded findings are supported by such evidence, how far the factual issue tends to be one of opinion, how completely agency policy occupies a field otherwise open to different opinion.

Id. at 579. Given the fact that an employee under these circumstances has the right to union representation once he makes the request, PERC also had the authority to establish a standard for the waiver of this right which is somewhat akin to that required for the waiver of counsel in criminal cases.

Accordingly, we deny the petition for review.

SCHEB, C. J., and DANAHY, J., concur.

      . Clearwater’s probationary period for firemen is one year. Since the interview took place one day after Lewis had worked for a year, there was some question concerning his probationary status. Therefore, PERC modified the hearing officer’s findings to eliminate the determination that Lewis was still on probationary status. As modified, the findings reflected that Lewis was employed by the city and that as of his termination the city had taken.no formal personnel action to change his designation from probationary to permanent. The city quarrels about this but cites us no authority for the proposition that Lewis’ right to the advice of a union representative (as contrasted to his right of tenure) was different depending on whether he occupied a probationary or permanent employment status. See § 447.203(3), Fla.Stat. (1977).

      . In a footnote PERC pointed out that the National Labor Relations Board had first formulated these alternatives in the context of investigatory or disciplinary interviews citing Roadway Express, Inc., 246 NLRB 180 (1979); United States Postal Serv., 241 NLRB 18 (1979); General Elec. Co., 240 NLRB 66 (1979).

      .In interpreting Florida’s Public Employees Labor Relations Act, decisions construing similar provisions of the National Labor Relations Act are persuasive but not binding. Pasco County School Bd. v. PERC, 353 So.2d 108, 116 (Fla. 1st DCA 1977).

      . The Florida Public Employees Labor Relations Act contains similar language. § 447.-301(3), Fla.Stat. (1977).

      . The Fifth Circuit Court of Appeals has approved the rationale of Baton Rouge Water Works in Anchortank, Inc. v. NLRB, 618 F.2d 1153 (5th Cir. 1980).

      . In addition to those outlined in PERC’s order, Lewis’ decision to resign may have had a very real impact upon his right to claim unemployment compensation. See § 443.06, Fla.Stat. (1977).

      . We adopted these principles in Koltay v. Division of Gen. Reg., 374 So.2d 1386 (Fla. 2d DCA 1979).

      . However, unlike the criminal procedures, we know of no authority which would require the employer to advise the employee of his right to union representation in the first place.