author: COBB, Judge.

text:
    SENTINEL STAR COMPANY, Petitioner, v. The Honorable Claude R. EDWARDS, Circuit Court Judge, etc., Respondent.
    No. 80-187.
    District Court of Appeal of Florida, Fifth District.
    July 9, 1980.
    Rehearing Denied Sept. 4, 1980.
    William G. Mateer and David L. Evans of Mateer, Harbert, Bechtel & Phalin, P.A., Orlando, for petitioner.
    Jim Smith, Atty. Gen., Tallahassee, and C. Michael Barnette, Asst. Atty. Gen., Day-tona Beach, for respondent.
    James A. Edwards and John H. Ward, Orlando, amicus curiae.

      John L. Sewell of Gurney, Gurney & Handley, Orlando, for Florida Defense Lawyers Association, amicus curiae.
    Charles E. Davis, Orlando, for Lenore C. Starling.
   COBB, Judge.

The petitioner Sentinel Star Co., publisher of a daily newspaper, challenges, by way of Rule 9.100(d), Florida Rules of Appellate Procedure, the action of the trial court in closing a civil post-trial hearing concerning a juror interview.

The events leading up to the closure order were as follows: A wrongful death action was filed by the personal representative of the Estate of Robert Wayne Starling, a deceased minor, against the City of Kissimmee and its liability insurance carrier. At the conclusion of the trial, the jury returned a verdict in favor of the defendant city. The plaintiff filed a timely motion for new trial and a motion to interview jurors based on information received indirectly from one Robert S. Johnson.

At the hearing, attended by a news reporter of the petitioner, the affidavit of Johnson was filed by the plaintiff in support of the motion to interview. The affidavit quoted an alternate juror, one Viola Warwick, as having told Johnson during the progress of the trial that the plaintiff would lose because of the jury’s apprehension that a verdict against the city would result in increased utility rates. The court ruled that the affidavit was untimely and declined to grant the motion. Plaintiff refiled the motion to interview, together with the Johnson affidavit, and the motion was set for hearing on January 21,1980. Meanwhile, the Sentinel Star contacted all but one of the jurors in the case and conducted its own interviews as to the truth of Johnson’s allegations.

At the second hearing on the plaintiff’s motion for a new trial and motion to interview, the attorney and a reporter for the Sentinel Star were present. The trial court heard argument on the motions, and ordered that an interview of the alternate juror, Viola Warwick, and the affiant, Robert S. Johnson, would be conducted on February 15, 1980. The trial judge further stated that he probably would hear no further argument on the motion for new trial unless he determined that there was some jury impropriety.

Prior to the February hearing the defendants, City of Kissimmee and Travelers Insurance Co., took Johnson’s deposition. The plaintiff’s motion to depose Viola Warwick was denied by the court. There is no indication from the record before us that the press was excluded from the Johnson deposition, or that it has been sealed by the trial court. It is not shown from the record before us whether or not this deposition was transcribed.

On February 15,1979, the trial court conducted an open hearing on the motion for new trial, which hearing commenced at approximately 9:00 A.M. Then, at approximately 10:15 A.M., the trial judge sua sponte announced that the courtroom would be closed to the press and the public for the hearing on the motion to interview the jur- or, Viola Warwick, which had been granted on January 21, 1980. There had been no advance notice that closure would be considered. There is conflict in the record before us as to whether or not a reporter for the petitioner was present at that time; if not, he arrived shortly thereafter. Apparently, no one voiced an objection to closure at the time of the court’s announcement.

The reporter relayed the news of this development to newspaper headquarters in Orlando, which promptly dispatched an attorney. He obtained an audience with the trial judge during the noon recess, and urged that the proceeding be opened to the press and public. The petitioner’s counsel argued the case of Sentinel Star Co. v. Booth, 372 So.2d 100 (Fla. 2d DCA 1979) in opposition to the closure. Judge Edwards read the case, heard argument by counsel, and denied the ore tenus motion to open the hearing after announcing his view that Booth was distinguishable.

At the conclusion of the hearing, the trial court opened the courtroom and made the following announcement:

Members of the media, the Court has ruled that there will be no interviewing of the jurors who found the verdict in this case. That the plaintiff’s Motion for a New Trial is denied. That the Court Reporter’s notes are sealed. That everybody who has been in here is directed not to discuss the case beyond the findings I have mentioned. This comment comes from the Court, which is the grounds at the beginning of a one liner, explanation to you at the end. The Courts are directed to be very reluctant to permit interviews of jurors and do so with great circumspection and care. The Court felt this required the exclusion of the public and media and prohibition of the participants of discussing the case further, in the interest of preserving sanctity of jurors deliberation.
Thank you. I don’t think there is going to be any more hearings before me about this matter.

The petitioner seeks an order from this appellate court suspending operation of the restrictive orders issued by the trial court on February 15, 1980; an order directing the respondent trial judge to have the court reporter’s record of the closed hearing transcribed and made available to the press; and a blanket injunction prohibiting the trial court from issuing further injunctive orders in the case without following procedures set forth in the Booth case.

The petitioner claims that the order of closure violated its fundamental first amendment right of access to a judicial proceeding. It contends that the press is entitled to notice and hearing before a trial court can restrict such access.

Lenore C. Starling, plaintiff below, has filed an amicus curiae brief. She argues that Rule 1.431(g), Florida Rules of Civil Procedure, permits the trial court to prescribe the place, manner, conditions and scope of a juror interview; that this provision — related to 6th amendment rights to a fair trial and 7th amendment rights to a jury trial — includes the authority to exclude the press from such an interview; that .here is no constitutional provision nor Florida case law which authorizes access of the press to civil post-trial proceedings, nor requires notice and hearing for such exclusion; that the trial court’s announcement in open court of the closure, coupled with the subsequent presentation of argument by counsel for the petitioner, complied with the requirements of State ex rel. Miami Herald Publishing Co. v. McIntosh, 340 So.2d 904 (Fla. 1977); and that it is impractical and, indeed, impossible to notify all interested news media whenever a hearing must be closed, which is authorized by Rule 1.431(g) and recognized by Rule 9.100(d), Florida Rules of Appellate Procedure. Starling notes that there are a number of designated exceptions to the right of the press of access to judicial proceedings, such as trade secrets, bastardy proceedings, adoption proceedings, and circumstances involving the potential for physical harm or embarrassment to witnesses. See State ex rel. Gore Newspaper Co. v. Tyson, 313 So.2d 777, 783 (Fla. 4th DCA 1975), overruled on procedural grounds in English v. McCrary, 348 So.2d 293 (Fla. 1977). In conclusion, Starling relies on the statement from McIntosh that a trial court has the power to restrict statements by lawyers, litigants, witnesses, jurors and court personnel, and maintains that nothing more is involved in the present appeal.

The respondent Judge Edwards primarily relies upon the recent United States Supreme Court case of Gannett Co. v. DePasquale, 443 U.S. 368, 99 S.Ct. 2898, 61 L.Ed.2d 608 (1979) (hereinafter referred to as Gannett), and contends that it stands for the proposition that the media has no constitutional right of access to pre-trial or post-trial hearings, criminal or civil. In support of this proposition, respondent also relies on Miami Herald Publishing Co. v. State, 363 So.2d 603 (Fla. 4th DCA 1978).

The respondent concedes that Gannett did not directly pass on the question as to whether the first amendment guarantees the public the right of access to pre-trial (hence post-trial) proceedings, but notes that the concurring opinion of Justice Rehnquist therein cites several prior United States Supreme Court decisions as holding that there is no first amendment right of access of the public or press to judicial or other governmental proceedings.

The respondent also asserts that the press and the public are not entitled to formal notice and hearing prior to entry of an order closing court proceedings or court records or imposing a “gag” rule against appropriate court personnel, officers and attendants. He also relies on Rule 1.431(g), Florida Rules of Civil Procedure, as vesting the trial judge with discretion in regard to the closure of juror interviews. It is clear that the respondent draws no distinction between the interview of an alternate juror and the interview of regular jurors under the rule. Respondent also cites the case of Velsor v. Allstate Ins. Co., 329 So.2d 391 (Fla. 2d DCA 1976) for the proposition that public policy dictates that inquiry into the thought processes, motives or influences of jurors must be zealously guarded to prevent litigants or the public from invading the privacy of the jury room. The respondent also asserts that the “three-prong” test referred to in Booth is no longer required prior to entry of any restrictive order as a result of Gannett.

In addition, we have considered the briefs of amici curiae: Florida Defense Lawyers Association; John H. Ward, Esquire, and James A. Edwards, Esquire. The defendants at the trial level, the City of Kissim-mee and its insurance carrier, have taken no position before us, pro or con, in regard to the propriety of the trial court’s order of closure.

At the inception of our considerations, we should note, and emphasize, that the instant case is one of first impression inasmuch as we are dealing with an allegation of jury misconduct preceding jury deliberations and with a “juror interview” of an alternate juror who did not participate in those deliberations. From that perspective, we pro-,eed to review of the McIntosh decision, wherein the Florida Supreme Court discussed the rights of the press of access to judicial proceedings. McIntosh must be evaluated in light of the subsequent Gan-nett opinion. The McIntosh case concerned security fraud charges emanating from a state-wide investigation, which had been the subject of wide-spread coverage by state and national press. Six criminal defendants joined in a motion to control pretrial publicity. The motion was served only upon counsel for the state and for the defendants, and was heard along with other pre-trial motions. The trial judge in McIntosh entered an order which (1) prohibited members of the news media from reporting inadmissible testimony and evidence presented in open court outside the presence of the jury, and (2) enjoined counsel, state officials, law enforcement officers, witnesses, bailiffs, clerks and other officials in attendance from giving or authorizing extrajudicial statements or interviews relating to the trial, the parties or the issues.

The Miami Herald Publishing Co. sought revocation of this order. After hearing, its motion for relief was denied; a writ of prohibition sought from the District Court of Appeal, Fourth District, was also denied. The newspaper then petitioned to the Florida Supreme Court, seeking multiple forms of relief (prohibition, stay order, mandamus), which were denied; however, certio-rari was granted. McIntosh, a criminal case, dealt with the order of the trial judge as a form of prior restraint, in regard to its prohibition against the press reporting matters accessible to it in open court. The Florida Supreme Court viewed the case as one involving a clash between the sixth amendment fair trial rights of the defeftd-ants and first amendment rights pertaining to a free press. While acknowledging that the former has the preferred position in criminal proceedings, the court observed that there must be a balanced reconciliation of these rights. Relying primarily on Nebraska Press Ass’n. v. Stuart, 427 U.S. 539, 96 S.Ct. 2791, 49 L.Ed.2d 683 (1976), the court found that the heavy burden imposed as a condition to securing a prior restraint was not met by the trial judge, and that the per curiam affirmance by the Fourth District Court of Appeal was in conflict with the case of State ex rel. Miami Herald Publishing Co. v. Rose, 271 So.2d 483 (Fla. 2d DCA 1972). The court approved the Rose case as a correct statement of law, and quashed the decision of the Fourth District Court of Appeal.

In Rose the trial judge had entered an order restricting communications media from publishing any information about a murder case except testimony presented in open court. The appellate court invalidated the order as a prior restraint upon constitutionally privileged publication, which was unnecessary to secure the defendant a fair trial (which could have been achieved by jury sequestration and other procedural safeguards). The Second District Court of Appeal in Rose relied upon New York Times Co. v. United States, 403 U.S. 713, 91 S.Ct. 2140, 29 L.Ed.2d 822 (1971), a case wherein prior restraint, as opposed to closure of a pre-trial or post-trial hearing, was the issue.

It is apparent that McIntosh did not deal with a closure order, unlike the instant case. Rather McIntosh dealt with prior restraint, an action of the trial court directed against publication by the news media, which was the first part of the trial court’s order. For this reason, it cited the United States Supreme Court case of Nebraska Press. In regard to the second part of the trial court’s order in McIntosh, the gag order imposed on counsel and various others, the language of the McIntosh majority opinion seems to indicate approbation of the trial court’s action, but the decision of the district court was quashed without further explanation, leaving some doubt as to the 'tatus of Florida law on this latter point.

In Gannett, the defendant in a much publicized murder case filed a motion to suppress incriminating statements and physical evidence. At the commencement of the pre-trial hearing, defense counsel argued that extensive adverse publicity had jeopardized the defendant’s right to receive a fair trial, and requested that the public and the press be excluded from the hearing. The prosecutor did not oppose the motion. A Gannett Press reporter was present but made no objection to the motion, which was granted by the trial judge.

The next day, Gannett Press asserted a right to cover the hearing, requested access to the transcript, and filed a motion to set aside the exclusionary order. A hearing was held, at which time the trial judge stated that the press had a constitutional right of access which had to be balanced against the defendant’s right to a fair trial. After weighing the probability of prejudice to the defendant, the trial judge ruled that the interest of the press and the public was outweighed by the fair trial considerations, refused to vacate his exclusion order, and denied immediate, although not ultimate, release of the transcript. This ruling was challenged by Gannett in the New York appellate court on the basis of the first, sixth and fourteenth amendments, eventuating in a grant of certiorari by the United States Supreme Court.

In addressing the merits of the issue, the Supreme Court first determined that the sixth amendment right to a public trial is a right of the defendant in criminal cases only and not a right of the public or of the press; and that the history of the public trial guarantee demonstrates no more than the existence of a common-law rule of open civil and criminal proceedings.

The petitioner newspaper also asserted a right of access to pre-trial hearings by reason of the first and fourteenth amendments. The United States Supreme Court elected not to pass upon the existence vel non of such a constitutional right. It held, even assuming arguendo the existence of such a putative right in some situations, that it was given “all appropriate deference by the state nisi prius court in the present case” because: (1) there was no contemporaneous objection by any member of the public, including the reporter present, to the closure motion; (2) counsel for the newspaper was given an opportunity to be heard at a proceeding where he was allowed to voice the newspaper’s objections to closure of the pre-trial hearing; (3) there was a balancing by the trial judge of any competing constitutional rights of the press and the defendants and an assessment of the competing societal interest involved rather than any determination that first amendment freedoms were not implicated; and (4) any denial of access in this case was not absolute but only temporary, since the transcript of the suppression hearing was made available once the danger of prejudice had dissipated. The judgment of the New York Court of Appeals upholding the exclusion of the press and public was affirmed.

McIntosh and Nebraska Press are prior restraint cases involving the clash of sixth and first amendment rights arising out of a criminal prosecution. The instant case is quite different. We are not dealing with a criminal case nor a prior restraint case. In light of Gannett, it is an open question as to whether or not closure of a pre-trial or post-trial judicial proceeding infringes first amendment rights of the press.

The Booth case, attempting to follow McIntosh and Nebraska Press, erroneously applied a “three-prong” prior restraint analysis to a situation wherein a court file was sealed. See Booth at 102. Insofar as the “three-prong” test referred to in Booth is applicable to prior restraint cases it is not affected by Gannett.

The Gannett decision rejects the contention that the criteria set out in the Nebraska Press Association case should control a closure issue. Accord, The Miami Herald Publishing Co. v. Lewis, 383 So.2d 236 (Fla. 4th DCA 1980) (Anstead, J., specially concurring) [1980 FLW 335]; on rehearing entire opinion certified to Florida Supreme Court (May 21, 1980) [1980 FLW 954], Gannett itself distinguishes cases such as Nebraska Press:

This Court’s decision in Nebraska Press . is of no assistance to the petitioners in this case. The Nebraska Press case involved a direct prior restraint imposed by a trial judge on the members of the press, prohibiting them from disseminating information about a criminal trial. The exclusion order in the present case, by contrast, did not prevent the petitioner from publishing any information in its possession. The proper inquiry, therefore, is whether the petitioner was denied any constitutional right of access.'

Gannett, 443 U.S. at 393 n.25, 99 S.Ct. at 2412 n.25, 61 L.Ed.2d at 630 n.25.

We reject the petitioner’s claim, based upon Booth, that it was entitled to notice and hearing in advance of closure. If Booth stands for prior notice and hearing in all access cases, then we find Booth to be in direct conflict with Gannett and unsupported by McIntosh. There are circumstances, such as those in the present case, where subsequent opportunity to be heard will adequately protect the interests of the press and public.

Although neither McIntosh nor Gannett is clearly dispositive of the question presented by the instant petition, there is language in each which is helpful.

In McIntosh the Florida Supreme Court said:

[T]he public and press have a right to know what goes on in a courtroom whether the proceeding be criminal or civil. A member of the press or newspaper corporation may be properly considered as a representative of the public insofar as enforcement of public right of access to the court is concerned; and the public and press have a fundamental right of access to all judicial proceedings. In determining restrictions to be placed upon access to judicial proceedings, the court must balance the rights and interest of the parties to litigation with those of the public and press.

McIntosh at 908.

In support of the above statement, McIntosh cites the case of State ex rel. Gore Newspaper Co. v. Tyson. The headnote in Tyson referenced by the McIntosh opinion reads as follows:

Even though litigants may prefer to have their dissolution proceeding conducted in private away from the prying eyes of the public and the glare of the media, these desires cannot serve as a sufficient predicate upon which to exclude the public and press completely.

In Tyson, there is an extensive discussion óf the rights of the public and the press in regard to access to civil courtroom proceedings. The Tyson opinion notes that the conduct of any trial, whether it be criminal or civil, is a public matter. See Craig v. Harney, 331 U.S. 367, 375, 67 S.Ct. 1249, 91 L.Ed. 1546 (1947).

While we find no specific constitutional or statutory provision speaking directly to the right of the public to attend a judicial proceeding (as distinguished from the right of every person to seek redress in the courts and the right to a public trial in a criminal proceeding as specifically stated in Sections 16 and 21, Declaration of Rights of the Florida Constitution), the ‘open court’ concept is an indispensable part of our system of government and our way of life ... As pointed out in Scripps, [E. W. Scripps Co. v. Fulton, 100 Ohio App. 157, 125 N.E.2d 896 (1955)] at 900:
“ . . . The basis of the constitutional guarantee of an “open court” is to be found in the development of the common law and would be a recognized right of the people without constitutional sanction.’
Public access to the courts is as fundamental as the litigant’s right to a fair trial — hence the conflict and the inevitable balancing of rights and interests.

Tyson at 786.

Tyson’s recognition of a common law right of access by the press to judicial proceedings is consistent with Gannett. As the immortal Holmes once said:

It is desirable that the trial of causes should take place under the public eye, not because the controversies of one citizen with another are of public concern, but because it is of the highest moment that those who administer justice should always act under the sense of public responsibility, and that every citizen should be able to satisfy himself with his own eyes as to the mode in which a public duty is performed.

Cowley v. Pulsifer, 137 Mass. 392, 394 (1884), quoted in Globe Newspaper Co. v. Superior Court, - Mass. -, 401 N.E.2d 360, 366 n.6 (1980).

Applying the above concepts to the instant petition to review the trial court’s order excluding the press from the juror interview on February 15, 1980, we conclude:

(1) The press and public had a common law right of access to the hearing. See Gannett, McIntosh, Tyson.

(2) The trial court had an inherent power to control the conduct of the proceedings before it. McIntosh at 909; Tyson at 782. This included the right to close the juror interviews where matters which may inhere in the verdict and the jury’s deliberations may be revealed. See Marks v. State Rd. Dept., 69 So.2d 771 (Fla. 1954); see also, 32 Fla.Jur. Trial § 274 (1960). The rule limiting juror interviews is founded upon the sound policy of preventing litigants or the public from invading the privacy of the jury room. Velsor v. Allstate Ins. Co., Rule 1.431(g), Florida Rules of Civil Procedure, does not give the trial court additional authority to close juror interviews, but sets rut the heretofore inherent discretion to control juror interview proceedings.

(3) The trial court gave as its reason for closing the interview of Viola Warwick and Robert Johnson the preservation of the sanctity of jurors’ deliberation. Since the trial court was confronted with a motion to interview jurors and a suggestion of possible juror misconduct, it is readily understandable that the court was apprehensive and protective in regard to the traditional sanctity of the jury room. See 8 Wigmore, Evidence §§ 2345-2356 (McNaughten rev. 1961). We share and respect this concern. But under the unique factual circumstances of the instant case, no juror deliberations were threatened with revelation at the investigative hearing held on February 15, 1980. Neither Johnson nor Warwick was privy to such deliberations. The matters raised by the Johnson affidavit, which was filed and thereby made public by the plaintiff Starling, related to acts which were wholly extrinsic to jury deliberations and ostensibly occurred during the progress of the trial. According to Marks:

[Pjublic policy protects a juror in the legitimate discharge of his duty, and sanctifies the result attained thereby; but if he steps aside from his duty, and does an unlawful act, he is a competent witness to prove such fact, and thereby prevent the sanction of the law from attaching to that which would otherwise be colorably lawful.
[T]o hear such proof would have a tendency to diminish such practices and to purify the jury-room, by rendering such improprieties capable and probable of exposure, and consequently deterring jurors from resorting to them. .

Marks at 775, quoting, Wright v. Illinois & Mississippi Tel. Co., 20 Iowa 195, 210. Therefore, the justification recited by the trial court does not support closure.

Accordingly, we decline to issue the blanket injunction sought against the trial judge; indeed, there is nothing to indicate that further closure orders are contemplated by the trial court. We order that a transcript of the closed hearing of February 15, 1980, be prepared at the cost of the petitioner and reviewed by the trial court; if there is no other basis for closure than that previously recited, said transcript shall be made available to the press, thereby rendering moot the gag order. If the trial court, upon reconsideration, finds some basis (other than the sanctity of jury deliberations) requiring sealing of the transcript in order to protect the fair trial rights of the litigants, the trial court shall recite said basis in a written order.

The order of closure on the basis of the sanctity of juror deliberations is reversed and this cause is remanded to the trial court for further proceedings consistent with this opinion.

REVERSED and REMANDED.

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

      . Petitioner has not presented to this Court a copy of the Johnson affidavit, although it was filed below and precipitated the present conflict. The parties appearing in this cause, however, do not dispute that Johnson’s affidavit was to the effect set forth above.

      . There is conflict between the petition of the Sentinel Star and the response of Judge Edwards as to whether or not a press representative was present at the time of the verbal order of closure, but no dispute that it was issued in open court prior to closure.

      . Gannett, 443 U.S. at 403-406, 99 S.Ct. at 2918-2919, 61 L.Ed.2d at 636-638; see also Nixon v. Warner Comm., Inc., 435 U.S. 589, 609, 98 S.Ct. 1306, 1317, 55 L.Ed.2d 570 (1978); Saxbe v. Washington Post Co., 417 U.S. 843, 850, 94 S.Ct. 2800, 2815, 41 L.Ed.2d 495 (1974); Estes v. Texas, 381 U.S. 532, 539-540, 85 S.Ct. 1628, 1631, 14 L.Ed.2d 543 (1965).

        . Estes v. Texas, 381 U.S. 532, 85 S.Ct. 1628, 14 L.Ed.2d 543 (1965); Shepherd v. Maxwell, 384 U.S. 333, 86 S.Ct. 1507, 16 L.Ed.2d 600 (1966); United States v. Tijerina, 412 F.2d 661 (10th Cir. 1969).

      . State ex rel. Tallahassee Democrat, Inc. v. Cooksey, 371 So.2d 207, 209 (Fla. 1st DCA 1979).

      . See McIntosh, 340 So.2d at 910-911.

      . See generally, Note, Constitutional Law: Free Press or Fair Trial—The Dilemma of Conflict, 9 Stetson L.Rev. 214 (1979); Comment, 7 Fla.St.L.Rev. 719 (1979). The United States Supreme Court may offer clarification in the near future: Richmond Newspapers, Inc. v. Virginia, cert. granted, - U.S. -, 100 S.Ct. 2814, 64 L.Ed.2d 973 (1979) (appeal from order excluding press and public in a capital murder trial).

      . On the question of notice, the Fourth District Court of Appeal stated:

        While formal written notice need not be served on all news media which could conceivably be interested, some notice should be given. The manner and extent of the notice will necessarily vary according to the circumstances of each case. Booth, 372 So.2d at 102.

      . “The court should serve notice to news reporters present, but no order entered in good faith is invalid for lack of notice to one or more who may be unavailable to receive notice. Announcement from the bench or publication in writing in the courtroom should be adequate.” McIntosh, 340 So.2d at 910.

      . An additional problem with the historical analysis of the petitioner and amici is that it is equally applicable to civil and criminal cases and therefore proves too much. For many centuries, both civil and criminal trials have traditionally been open to the public. As early as 1685, Sir John Hawles commented that open proceedings were necessary so ‘that truth may be discovered in civil and criminal matters’ (emphasis added). Remarks upon Mr. Cornish’s Trial, 11 How. State Trials 455, 460. English commentators also assumed that the common law rule was that the public could attend civil and criminal trials without distinguishing between the two. E. g., 2 E. Coke, Institutes of the Laws of England 103 (6th ed. 1681) (‘all Causes ought to be heard . . openly in the King’s Courts’); 3 W. Blackstone, Commentaries *372 (1768); M. Hale, The History of the Common Law of England 343, 345 (6th ed. 1820); E. Jenks, The Book of English Law 73-74 (6th ed. 1967).
      The experience in the American colonies was analogous. From the beginning, the norm was open trials. Indeed, the 1677 New Jersey Constitution, provided that any person could attend a trial whether it was ‘civil or criminal.’ Concessions and Agreements of West New Jersey (1677), ch. XXIII, quoted in 1 B. Schwartz, The Bill of Rights: A Documentary History 129 (1971) (hereinafter Schwartz) (emphasis added). Similarly, the 1682 and 1776 Pennsylvania Constitutions, both provided that ‘all courts shall be open’ 1 Schwartz at 140, 271 (emphasis added).
      If the existence of a common-law rule were the test for whether there is a Sixth Amendment public right to a public trial, therefore, there would be such a right in civil as well as criminal cases. But the Sixth Amendment does not speak in terms of civil cases at all; by its terms it is limited to providing rights to an accused in criminal cases. In short, there is no principled basis upon which a public right of access to judicial proceedings can be limited to criminal cases if the scope of the right is defined by the common law rathqr than the text and structure of the Constitution.
      Indeed, many of the advantages of public criminal trials are equally applicable in the civil trial context. While the operation of the judicial process in civil cases is often of interest only to the parties in the litigation, this is not always the case. E. g., Dred Scott v. Sanford, 60 U.S. (19 How.) 393, 15 L.Ed. 691; Plessy v. Ferguson, 163 U.S. 537, 16 S.Ct. 1138, 41 L.Ed. 256; Brown v. Board of Education, 347 U.S. 483, 74 S.Ct. 686, 98 L.Ed. 873, 53 Ohio Ops. 326, 38 A.L.R.2d 1180; Regents of the University of California v. Bakke, 438 U.S. 265, 98 S.Ct. 2733, 57 L.Ed.2d 750. Thus in some civil cases, the public interest in access, and the salutary effect of publicity, may be as strong or stronger than in most criminal cases. Gannett, 443 U.S. at 386, 99 S.Ct. 2908, 2909, 61 L.Ed.2d at 625-626 n.15.

      . By our action in this case we do not mean to say the trial judge acted arbitrarily, imprudently or unreasonably. To the contrary, his actions are quite understandable when viewed from the vantage point of the trial judge at the time the closure order was entered.

      . If upon reconsideration of the balance of rights and interests the trial court determines there is a valid justification for sealing the record, the order need not reveal the matters entitled to protection but should sufficiently refer to the record to apprise the appellate court of the matters entitled to protection.


source: Caselaw Access Project

author: LETTS, Chief Judge.

license: Public Domain

text:
    Stephen C. ACHIN, Appellant, v. STATE of Florida, Appellee.
    No. 79-1060.
    District Court of Appeal of Florida, Fourth District.
    June 11, 1980.
    Rehearing Denied Sept. 24, 1980.

      Steve Lange of Sandstrom & Haddad, Fort Lauderdale, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Joy B. Shearer, Asst. Atty. Gen., West Palm Beach, for appellee.
   LETTS, Chief Judge.

The defendant invited a lesser included offense instruction of attempted extortion. Upon conviction thereof he now claims that he must go free because such a crime does not exist. We affirm.

We begin by agreeing that the crime of attempted extortion does not exist. Section 836.05 of the Florida Statutes (1977) reads:

836.05 Threats; extortion. — Whoever, either verbally or by a written or printed communication, maliciously threatens to accuse another of any crime or offense, or by such communication maliciously threatens an injury to the person, property or reputation of another, or maliciously threatens to expose another to disgrace, or to expose any secret affecting another, or to impute any deformity or lack of chastity to another, with intent thereby to extort money or any pecuniary advantage whatsoever, or with intent to compel the person so threatened, or any other person, to do any act or refrain from doing any act against his will, shall be guilty of a felony of the second degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084.

Without laborious analysis of the statutory language we find it abundantly clear that money need not actually be extracted from the victim and that an attempt to extract it is clearly within the language and scope of the statute defining the crime of extortion.

We are also aware that one normally cannot be convicted of a crime that does not exist Vogel v. State, 365 So.2d 1079 (Fla. 1st DCA 1979). However, we hold the error is not invariably fundamental and where the error is deliberately invited and the instruction not objected to, the defendant shall not be heard to complain about the result.

In the case at bar, the following colloquy took place at the charge conference. .

THE COURT: Do either of you have any special instructions to present to the Court?
MR. SANDSTROM: [defense attorney] Well, it ended a little prompt. Do you have one in there that defines each of the words that are in here?
THE COURT: I don’t know. I never had a case like this before.
Are there any lesser offenses of this?
MR. SANDSTROM: There is always attempt.
THE COURT: Other than the attempt.
I guess we better go in the office. This doesn’t have anything in here.
(Thereupon, a short recess was taken.)
MR. SCHAEFER: [State attorney] I would like, at least for the purpose of closing argument, that we know what the lesser includeds are.
THE COURT: The only lesser would be attempted, as far as I know.
No lessers have been requested?
MR. SANDSTROM: Right.

This representation by a most able defense attorney may not rise to the level of a demand for an instruction on a nonexistent criminal offense such as occurred in McIntyre v. State, 380 So.2d 1064 (Fla. 2d DCA 1980), but it comes close. Moreover, when it is considered in conjunction with a failure to object when the instruction was given to the jury, we agree with the Second District that the defendant should not now be heard to complain about an error which he both induced and promoted. See McIntyre, supra. He did more, much more than just remain silent and we must again borrow Judge Schwartz’ language and remark that such “gotcha” maneuvers should not be allowed to succeed Salcedo v. Asociacion Cubana, Inc., 368 So.2d 1337 (Fla. 3d DCA 1979).

AFFIRMED.

DOWNEY and ANSTEAD, JJ., concur.


author: PER CURIAM.

text:
    Marwin S. CASSEL, as Trustee, Appellant, v. I. R. E. FINANCIAL CORPORATION, Appellee.
    No. 79-1210.
    District Court of Appeal of Florida, Third District.
    June 17, 1980.
    Rehearing Denied Sept. 15, 1980.
    Smith, Mandler, Smith, Werner, Jacobow-itz & Fried and Julian R. Benjamin, Miami Beach, for appellant.
    Arky, Freed, Stearns, Watson & Greer and Eugene E. Stearns, Miami, for appellee.
    Before HENDRY and BASKIN, JJ., and EZELL, BOYCE F., Jr., (Ret.), Associate Judge.
   PER CURIAM.

This is the second appeal in this case wherein appellant charges appellee with usury. For a statement of the facts and issues, see our prior opinion, I. R. E. Financial Corporation v. Cassel, 335 So.2d 598 (Fla.3d DCA 1976).

We have carefully considered the points on appeal in the light of the record, briefs and arguments of counsel and have concluded that no reversible error has been made to appear. See Plapinger v. Eckerd’s Silver Star, Inc., 360 So.2d 445 (Fla.3d DCA 1978), cert. denied 366 So.2d 883 (Fla.1979); Dixon v. Sharp, 276 So.2d 817 (Fla.1973); Mid State Homes, Inc. v. Staines, 161 So.2d 569 (Fla.2d DCA), cert. denied 166 So.2d 594 (Fla.1964); Indian Lake Estates, Inc. v. Special Investments, Inc., 154 So.2d 883, 890 (Fla.2d DCA 1963); Davidson v. Davis, 59 Fla. 476, 52 So. 139 (Fla.1910).

Affirmed.


author: DANIEL PEARSON, Judge.

text:
    Anthony GATTO, Appellant, v. PUBLIX SUPERMARKET, INC. and Harold Stepp, Appellees.
    No. 79-1270.
    District Court of Appeal of Florida, Third District.
    June 17, 1980.
    Rehearing Denied July 25, 1980.

      High, Stack, Lazenby, Bender, Palahach & Lacasa and Alan R. Dakan, Miami, William J. Williams, Coral Gables, for appellant.
    Marlow, Shofi, Ortmayer, Smith, Connell & Valerius and Joseph H. Lowe, Miami, for appellees.
    Before HUBBART, NESBITT and DANIEL PEARSON, JJ.
   DANIEL PEARSON, Judge.

The genesis of this case was an incident in which Publix employees, believing that Gatto had shoplifted some paperback books, (1) attempted to retrieve the books, (2) called the police who arrested Gatto, and (3) executed a sworn complaint leading to an abortive criminal prosecution of Gatto. Gatto thereafter sought damages in a suit against Publix Supermarket, Inc. and its store manager, Harold Stepp, charging assault and battery, false arrest and imprisonment, and malicious prosecution.

The trial court directed verdicts in favor of the defendants on all counts, and from those rulings, Gatto appealed. We affirm the trial court’s rulings in respect to assault and battery and false arrest and imprisonment ; we reverse the directed verdict on the malicious prosecution count.

The evidence adduced by Gatto, viewed in a light most favorable to him, Wheaton v. Bohnert Roofing and Supply Co., 369 So.2d 1016 (Fla. 3d DCA 1979), establishes no more than a casual touching of Gatto’s hand by Stepp during Stepp’s efforts to retrieve what he reasonably believed to be Publix’s property. There is no evidence to show that Gatto was placed in fear of imminent peril, that the contact was harmful or offensive to him, or that his personal dignity was offended by the touching. See McDonald v. Ford, 223 So.2d 553 (Fla. 2d DCA 1969) (in which the defendant’s initial “laughing embrace” of the plaintiff, as distinguished from his later efforts to overcome her resistance, was said not to constitute an assault and battery); Restatement (Second) of Torts §§ 19, 21 (1966).

Similarly, by Gatto’s own admission, at all times he considered himself free to leave the premises of Publix and was never restrained from leaving. While Stepp eventually called the police, he did so at Gatto’s insistence. The evidence, again viewed most favorably to Gatto, does not support a verdict for Gatto on the false arrest or imprisonment counts.

We now turn to the malicious prosecution count. The defendants’ motion for the entry of the directed verdict was essentially grounded on their contention that Gatto failed to show that there was a bona fide termination of the criminal prosecution against him, and therefore failed to prove an essential element of his malicious prosecution action. It was upon this ground that the trial court ruled in the defendants’ favor, and it is upon this ground that Publix and Stepp argue for affirmance on appeal. Of course, if Gatto failed to prove this or any essential element of his malicious prosecution action, it would be fatal to his action. Bieley v. duPont, Glore, Forgan, Inc., 316 So.2d 66 (Fla. 3d DCA 1975).

The evidence in the present case reveals that the sworn complaint (an arrest or “A” form) executed on January 20, 1978, by the arresting officer and countersigned by Harold Stepp was determined by the State Attorney's Office to be technically defective. The defects were duly noted on a penal screening form. The first defect was that the complaint charged Gatto with “retail theft in violation] of F.S. 812.021” when the statute cited should have been F.S. 812.0Í5. The second defect was that the complaint had no entry referring to any section of the Code of the City of Coral Gables which would enable a city police officer to arrest for violation of a state statute. The penal screening form contains, inter alia, two other lines which are pertinent to this appeal:

“1. The above case has been nolle prossed/no informationed.”
“6. We respectfully decline to prosecute the charge.”

A member of the State Attorney’s Office drew a line under “no informationed” and initialled that entry. Prior to his scheduled "rraignment, Gatto was notified by a letter from the court clerk that his case had “been closed by the State Attorney on an announcement of No Information.” He was further instructed: “Should the State decide to refile the case within ninety days of the date of the offense, you will be notified of the new hearing date.”

A copy of the penal screening form was sent to the arresting officer, but he did not contact the State Attorney’s Office, and that office made no effort to contact him in order to correct the flaws.

Gatto contends that the “no information” constituted a bona fide termination of the criminal prosecution against him and satisfied that requisite element of his malicious prosecution action. We agree.

The essential element of a bona fide termination of the criminal prosecution in favor of the person bringing the malicious prosecution action has been held to be satisfied if there has been an adjudication on the merits favorable to him or if there is a good faith nolle prosequi or declination to prosecute. Jackson v. Biscayne Medical Center, Inc., 347 So.2d 721 (Fla. 3d DCA 1977); G. C. Murphy Company v. Freshko, 293 So.2d 791 (Fla. 3d DCA 1974); Davis v. McCrory Corporation, 262 So.2d 207 (Fla. 2d DCA 1972). The defendants here attach unwarranted significance to the phrases “nolle prosequi” and “declination to prosecute,” suggesting that if the abandonment of the criminal prosecution is not so described, there is not a bona fide termination.

A “nolle prosequi” is merely an acknowledgment that the particular matter will not be further prosecuted, Hewitt v. International Shoe Company, 110 Fla. 37, 148 So. 533 (1933), or an expression of unwillingness to prosecute, Wilson v. Renfroe, 91 So.2d 857 (Fla. 1956). The underlying reason for a “nolle prosequi,” even as the underlying reason for a “declination to prosecute” or a “no information,” may or may not be related to the merits of the cause being abandoned. We perceive no substantive distinction between these forms of abandonment or termination; the selection of one form or another is dictated simply by the point in time when the decision to abandon or terminate is made.

There are no magic words for termination. A malicious prosecution complaint that merely alleges that “the County Prosecutor . . . refused information on the said charge or charges and completely abandoned prosecution thereof” sufficiently pleads that element of the action. Calleja v. Wiley, 290 So.2d 123 (Fla. 2d DCA 1974).

“We would agree that the allegation of favorable termination might be made more specific, but there is no specific requirement that it be terminated in a particular way. See 52 Am.Jur.2d Malicious Prosecution § 34. The action for malicious prosecution does not depend on some specific event, because termination may be evidenced in a variety of ways . .” Calleja v. Wiley, supra, at 125.

See also Hammond Lead Products, Inc. v. American Cyanamid Co., 570 F.2d 668 (7th Cir. 1977) (“any form of termination of defendant’s cause of action satisfies the social policy which underlies the rule which requires plaintiff to prove as an element of his cause of action that the proceedings were terminated in his favor.”); Prosser, Torts § 119 (4th ed. 1977) at 839 (“[I]t will be enough that the proceeding is terminated in such a manner that it cannot be revived, and the prosecutor, if he proceeds further, will be put to a new one. This is true, for example, of an acquittal in court, a discharge by a magistrate or a justice of the peace upon preliminary hearing, or by a governor in extradition proceedings, a failure of a grand jury to indict which results in discharge, the quashing of an indictment, the entry of a nolle prosequi or a dismissal, abandonment of the prosecution by the prosecuting attorney or the complaining witness, or continuance beyond a time limit, where any of these things have the effect of ending the particular proceeding and requiring new process or other official action to commence a new prosecution.”).

The defendants’ reliance on Freedman v. Crabro Motors, Inc., 199 So.2d 745 (Fla. 3d DCA 1967), is misplaced. Freedman merely sets forth the rule that the termination must be bona fide, that is, not bargained for or obtained by the accused upon a promise of payment or restitution. Compare Shidlowsky v. National Car Rental Systems, Inc., supra (in which even though the criminal charges against Shidlowsky were dropped when he promised to pay the complainant, because Shidlowsky had made an identical promise to pay which had been rejected by the complainant before the bringing of the criminal charges, the case was distinguished from Freedman). Williams v. Confidential Credit Corporation, 114 So.2d 718 (Fla. 3d DCA 1959), is also inapposite. Williams merely holds that an asylum state’s refusal to extradite will not satisfy the bona fide termination requirement. Since a refusal to extradite neither abandons the prosecution nor constitutes a decision on the merits, the decision is confined to that unique factual setting. But see Keller v. Butler, 246 N.Y. 249, 158 N.E. 510 (1927). Lastly, the defendants call our attention to the statement in Arison Shipping Co. v. Hatfield, 352 So.2d 539 (Fla. 3d DCA 1977), that a bona fide termination of a prior civil suit “must be an adjudication on the merits.” In Arison, the termination was a dismissal for lack of subject matter jurisdiction. The holding in Arison, that to constitute a bona fide termination there must first be jurisdiction in the court in which the proceeding terminates, see also Roy v. Landers, 467 S.W.2d 924 (Mo. 1971), does not impact the present case. The statement in Arison equating a bona fide termination exclusively with an adjudication on the merits if read literally, is in conflict with Jackson v. Biscayne, supra, and G. C. Murphy v. Freshko, supra, which clearly state that either a favorable decision on the merits or a bona fide termination will suffice for a malicious prosecution action. The rule of Jackson and G. C. Murphy is the correct one.

Since Gatto will be entitled to another trial on his claim that he was maliciously prosecuted by the defendants, we will not consider the error he asserts that evidence regarding his involvement in a prior shoplifting incident was wrongfully admitted at trial. Such evidence is. not, per se, inadmissible, see, e.g., Section 90.404, Florida Statutes (1977), and we therefore leave it to the trial court to determine at retrial whether the appropriate predicate for its admission has been established.

Affirmed in part; reversed in part.

      . We treat the false arrest and false imprisonment as one, since the difference is one of terminology only. See Jackson v. Biscayne Medical Center, Inc., 347 So.2d 721, 723 (Fla. 3d DCA 1977).

      . Gatto’s most forceful testimony on this subject is, “I said — 1 said that getting — trying to get the books out of my hand, his hands came in contact with either part of my palm or my wrist or my arms. I mean, there’s where the contact was.”

      . Even if it had been Stepp’s intention to detain Gatto for the purpose of recovering the goods, in our view Stepp had probable cause to believe that the Publix goods had been unlawfully taken by Gatto. At the time of these events the existence of probable cause for believing that the person arrested committed larceny of the goods held for sale would insulate Stepp and Publix from liability. See § 901.34, Fla. Stat. (1977), repealed by Ch. 78-348, § 3, Laws of Fla. The probable cause to support a temporary detention of a suspected shoplifter by a merchant or the merchant’s employee is less than the probable cause required to support a later prosecution. Food Fair Stores, Inc. v. Kincaid, 335 So.2d 560 (Fla. 2d DCA 1976); Rothstein v. Jackson’s of Coral Gables, Inc., 133 So.2d 331 (Fla. 3d DCA 1961). Gatto’s counsel at oral argument conceded that Publix employees had probable cause to believe that Gatto had stolen Publix goods and contended merely that this probable cause dissipated when Gatto denied his guilt. Assuming, ar-guendo, that Gatto’s denial had the significance attached to it by his counsel, the only cause of action which arose thereafter was one for malicious prosecution.

      . There are six elements to be established in a malicious prosecution case: (1) a criminal proceeding was commenced or continued against the plaintiff; (2) the defendant commenced or caused the commencement of such proceeding; (3) the criminal proceeding had a bona fide termination in the plaintiffs favor; (4) there was no probable cause for causing the commencement of the criminal proceeding; (5) the defendant acted with malice; (6) the plaintiff suffered damage. Shidlowsky v. National Car Rental Systems, Inc., 344 So.2d 903 (Fla. 3d DCA 1977); Applestein v. Preston, 335 So.2d 604 (Fla. 3d DCA 1976); Liabos v. Harman, 215 So.2d 487 (Fla. 2d DCA 1968). Even if the trial court were incorrect in concluding that there was no bona fide termination of the criminal prosecution in Gatto’s favor, we would be compelled to uphold his directed verdict if there was a failure of proof on any of the other five elements. A correct ruling of a trial court will be sustained regardless of the incorrect reasons assigned for the ruling. Congregation Temple De Hirsch v. Aronson, 128 So.2d 585 (Fla. 1961); Green v. Bruns, 102 So.2d 610 (Fla. 1958); Postell v. State, 383 So.2d 1159 (Fla. 3d DCA 1980). We find, however, that viewed most favorably to Gatto, there was sufficient evidence of the other five elements to warrant submission to a jury. While we earlier said there was probable cause to justify Gatto’s detention, we note that information learned through further investigation thereafter could establish a lack of probable cause subjecting the defendants to liability for causing the commencement of the later criminal prosecution. Food Fair Stores, Inc. v. Kincaid, supra.

      . By way of example, the ABA Standards, The Prosecution Function § 3.9(a) and (b) (1970), point out the broad discretion vested in the prosecutor in making his decision to prosecute or not:
      “3.9 Discretion in the charging decision.
      “(a) In addressing himself to the decision whether • to charge, the prosecutor should first determine whether there is evidence which would support a conviction.
      “(b) The prosecutor is not obliged to present all charges which the evidence might support. The prosecutor may in some circumstances and for good cause consistent with the public interest decline to prosecute, notwithstanding that evidence exists which would support a conviction. Illustrative of the factors which the prosecutor may properly consider in exercising his discretion are:
      “(i) the prosecutor’s reasonable doubt that the accused is in fact guilty;
      “(ii) the extent of the harm caused by the offense;
      “(iii) the disproportion of the authorized punishment in relation to the particular offense or the offender;
      “(iv) possible improper motives of a complainant;
      “(v) prolonged non-enforcement of a statute, with community acquiescence;
      “(vi) reluctance of the victim to testify;
      “(vii) cooperation of the accused in the apprehension or conviction of others;
      “(viii) availability and likelihood of prosecution by another jurisdiction.”

      . See Schoenbrod v. O'Neill, 375 So.2d 42 (Fla. 3d DCA 1979) (Schwartz, J., special concurring opinion).


author: BARKDULL, Judge. SCHWARTZ, Judge

text:
    Carole E. BENNETT, as Personal Representative of the Estate of Leslie L. Bennett, Deceased, Appellant, v. Patricia M. Bennett ZAGER, Appellee.
    No. 79-2090.
    District Court of Appeal of Florida, Third District.
    June 17, 1980.
    Rehearing Denied July 11, 1980.

      Richard B. Bergstresser, Miami, for appellant.
    Tod Aronovitz, Miami, for appellee.
    Before BARKDULL, HUBBART and SCHWARTZ, JJ.
   BARKDULL, Judge.

The trial court entered a final judgment in this cause on July 20, 1979. The appellant timely filed a petition for rehearing which, in effect, was denied on October 2, 1979 except for the correction of a citation.

Thereafter, the appellant took a notice of appeal describing only the October 2, 1979 order. The notice of appeal did not put the appellee on notice that the appellant sought review of anything other than the October 2 order. It wasn’t until the appellant filed her brief that the appellee was put on notice that the appellant’s real complaint was to the July 20 final judgment. Under the new rules there were no assignments of error and the entire record was sent up upon the filing of the notice. The appellee did not respond to the point raised in appellant’s brief. The appeal is subject to dismissal upon the following authorities: Mickler v. Smith, 111 So.2d 457 (Fla.2d DCA 1959); Kaemmerlen v. Shannon, 119 So.2d 315 (Fla.2d DCA 1960); Quackenbush v. Town of Palm Beach, 151 So.2d 348 (Fla.2d DCA 1963); Frank v. Amara, 235 So.2d 537 (Fla.lst DCA 1970). We have not overlooked, State v. Allen, 196 So.2d 745 (Fla.1967), as distinguished by the Second District Court of Appeal in Bay Area News v. Poe, 364 So.2d 830 (Fla.2d DCA 1978).

In the instant case, the appellee was clearly mislead by the notice of appeal, the time expired from which any cross-appeal could have been taken, and there were rulings by the trial court which may have warranted a cross-appeal if the appellee had been put on notice of an appeal from the final judgment. The appellee did not respond to the point in the brief, and to now bold that she was not prejudiced would be wrong. The appellate rules cast upon the appellant the burden of appropriately identifying the order to be reviewed. See: Florida Appellate Rule 9.110(d). The only exception to this would be the circumstances outlined in State v. Allen, supra, which circumstances are not present in the instant case.

Therefore, the appeal in this cause be and the same is hereby dismissed.

SCHWARTZ, Judge

(dissenting).

I would not dismiss the appeal. Since the order specified in the notice of appeal denied the appellant’s timely motion for rehearing, and the appeal was obviously intended to reach the merits of the final judgment, I believe that we should and are required by the applicable authorities to disregard the technical error and to treat the notice as one properly directed to that judgment. State ex rel. Poe v. Allen, 196 So.2d 745 (Fla.1967); Greyhound Corp. v. Carswell, 181 So.2d 638 (Fla.1966); F. A. Chastain Construction, Inc. v. Stanford, 232 So.2d 421 (Fla.3d DCA 1970).

Moreover, I detect no basis for the conclusion that the appellee was in any way misled or otherwise prejudiced by the mistaken designation. She has evinced no intention to cross-appeal any adverse ruling below, and was not in any way prevented from doing so if she wished. Most important, the appellee has not even filed an answer brief in response to the brief of appellant, which claims error only in the final judgment. Under these circumstances, I believe the cited cases directly control.


author: HERSEY, Judge.

text:
    John Harold YELLEN and Robert Harold Yellen, Appellants, v. Quentin V. LONG, Individually and as Executor/Personal Representative and Attorney for the Estate of Murray Harold Yellen, Deceased, and Betty Rollin (aka Berthe Rollin), Murray Glanz (aka Murray Glantz), Maxwell Yellen, Joseph Yellen, Edith Ginsky, beneficiaries and adverse parties in the Estate of Murray Harold Yellen, Deceased, Appellees.
    No. 79-925.
    District Court of Appeal of Florida, Fourth District.
    June 18, 1980.
    Rehearing Denied Sept. 19, 1980.
    John Harold Yellen, in pro. per., and Thomas H. Lehrer of Andrews, Voorheis, Lehrer & Baggett, Fort Lauderdale, for appellants.
    James J. Belcher of Law Offices of James J. Belcher, Pompano Beach, for appellee Long.
   HERSEY, Judge.

This is an appeal from an order of the probate court dismissing appellants’ petition for revocation of probate. Rule 5.025(a)(1) and (b)(2), Florida Rules of Probate and Guardianship Procedure provide that the Rules of Civil Procedure shall govern revocation proceedings. Rule 1.530, Florida Rules of Civil Procedure authorizes motions for rehearing; therefore appellants’ motion for rehearing before the probate court tolled the time for appeal and this appeal, contrary to appellees’ contention, is timely. Fla.R.App.P. 9.020(g)

Appellants’ petition for revocation of probate was filed subsequent to rendition of an order discharging the personal representative. We affirm our holding in In Re Estate of Jackson, 236 So.2d 475 (Fla. 4th DCA 1970), that such a petition should be dismissed as untimely. It is urged that since appellants, who were not named in the will, received no notice, they should not be precluded from their day in court. The complainant in Jackson, supra, similarly received no notice. Further, the applicable statutes do not require that notice be given to heirs not named in a will. The absence of notice is therefore not relevant to a determination of timeliness in this context.

Appellants also appeal the denial of their motion for rehearing and other relief. Assuming that probate proceedings may be reopened under Section 733.903, Florida Statutes (1979), or pursuant to the inherent power and authority of the court where strong factual allegations of fraud, overreaching or mistake are made, as suggested by dicta in Padgett v. Estate of Padgett, 318 So.2d 484 (Fla. 1st DCA 1975), the lower tribunal on at least two occasions found appellants’ allegations insufficient to entitle them to such relief. Strong policy reasons support the action of the court in this regard.

We therefore affirm.

AFFIRMED.

ANSTEAD and GLICKSTEIN, JJ., concur.


author: GRIMES, Chief Judge.

text:
    Forrest J. KILLIAN, III, Appellant, v. STATE of Florida, Appellee.
    No. 79-1618.
    District Court of Appeal of Florida, Second District.
    June 25, 1980.
    Rehearing Denied Sept. 9, 1980.
    Jack 0. Johnson, Public Defender, and Michael S. Becker, Asst. Public Defender, Bartow, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Peggy A. Quince, Asst. Atty. Gen., Tampa, and G. P. Waldbart, Legal Intern, for appel-lee.
   GRIMES, Chief Judge.

By this appeal, appellant challenges the trial court’s reading of the Youthful Offender Act.

The state charged appellant with nine felonies and three misdemeanors. The charges were consolidated for trial, and he pled guilty to all of them. The court adjudicated him guilty and ordered a pre-sen-tence investigation. Because he was between eighteen and twenty-one years old and had no prior record, appellant moved to be sentenced in accordance with the Youthful Offender Act, Section 958.04, Florida Statutes (Supp.1978). This statute reads, in part, as follows:

(1) The court may classify as a youthful offender any person:
(a) Who is at least 18 years of age or who has been transferred for prosecution to the criminal division of the circuit court pursuant to chapter 39;
(b) Who is found guilty of or who has tendered, and the court has accepted, a plea of nolo contendere or guilty to a crime which is, under the laws of this state, a felony of the first, second, or third degree if such crime was committed before the defendant’s 21st birthday; and
(c) Who has not previously been classified a youthful offender under the provisions of this act; however, no person who has been found guilty of a capital or life felony may be classified a youthful offender under this act.
(2) A person shall be classified a youthful offender if such person meets the criteria of subsection (1) and such person:
(a) Has not previously been found guilty of a felony, whether or not the adjudication of guilt has been withheld; or
(b) Has not been adjudicated delinquent for an act which would be a capital, life, or first degree felony if committed by an adult.
(3) A person excluded from classification as a youthful offender under subsection (2) by virtue of having been previously found guilty of a crime which if committed in Florida would be a felony of the first, second, or third degree under the laws of this state may be classified a youthful offender after consideration of the following criteria .

The court refused to sentence appellant under the act, and appellant instituted this appeal, contending that he had a right to be sentenced as a youthful offender.

Despite the discretionary language of subsection (1), the clear mandate of subsection (2) is that if a person meets the criteria of subsection (1) and has not previously been found guilty of a felony or adjudicated delinquent for an act which would be more than a second degree felony, he is entitled, as a matter of right, to be sentenced as a youthful offender. The state, however, contends that the court was not required to sentence appellant under the Youthful Offender Act because by the time of sentencing on each of the charges, appellant had already been convicted of all the other felony charges which had been consolidated for trial.

Appellant refers to subsequent offender statutes, such as Section 775.084, Florida Statutes (1979), which courts have consistently construed as requiring that each subsequent offense be committed after the pri- or conviction. E. g., Shead v. State, 367 So.2d 264 (Fla.3d DCA 1979). The rationale for enhancing a sentence for subsequent offenders is said to be to give a warning, to first offenders and thereby afford them an opportunity to reform. Karz v. State, 279 So.2d 383 (Fla.2d DCA 1973).

On the other hand, the state suggests the applicability of Lucas v. State, 376 So.2d 1149 (Fla.1979), in which the court was considering the eligibility of certain crimes to be considered as aggravating factors under Section 921.141(5)(b), Florida Statutes (1975), for the purposes of assessing the death penalty. There, the defendant had attempted to murder two other persons a few minutes after the commission of the subject murder. The supreme court held that even though the two convictions for attempted murder were entered contemporaneously with the murder conviction, both had been entered “previous” to sentencing. Thus, the court had appropriately considered the two attempted murder convictions as an aggravating circumstance.

The instant case is analogous to Lucas. There is nothing to indicate that the possibility of not being sentenced as a youthful offender was contemplated as being a deterrent to criminal conduct. To the contrary, the legislative intent of the Florida Youthful Offender Act as expressed in Section 958.021, Florida Statutes (Supp.1978), is as follows:

The purpose of this act is to improve the chances of correction and successful return to the community of youthful offenders sentenced to imprisonment by preventing their association with older and more experienced criminals during the terms of their confinement. It is the further intent of the Legislature to provide an additional sentencing alternative to be used in the discretion of the court when dealing with offenders who have demonstrated that they can no longer be handled safely as juveniles and who require more substantial limitations upon their liberty to ensure the protection of society.

The act is a sentencing tool which enables the court to give .the most appropriate sentence to each particular person in each particular case.

Accordingly, we hold that appellant had “previously been found guilty of a felony” as specified in Section 958.04(2)(a), Florida Statutes (Supp.1978), when the court sentenced him for each of the crimes involved in this appeal. While subsection (3) would have authorized the court to sentence appellant as a youthful offender, there was nothing in that subsection or elsewhere in the act which required it to do so. Hence, the court properly pronounced sentence without regard to the Youthful Offender Act.

AFFIRMED.

HOBSON and SCHEB, JJ., concur.


text:
    The TRAVELERS INSURANCE COMPANY, Appellant, v. Columbus LEE and Bessie Lee, Appellees.
    No. 79-1447.
    District Court of Appeal of Florida, Third District.
    July 8, 1980.
    Rehearing Denied Sept. 26, 1980.
    Alfred D. Bieley, Miami, for appellant.
    Wolfson, Appel & Maram and Anthony J. Brown, Miami, for appellees.
    Before HENDRY and BASKIN, JJ., and EZELL, BOYCE F., Jr., (Ret.), Associate Judge.
   PER CURIAM.

Travelers Insurance Company appeals a summary final judgment entered in an action for declaratory relief. The judgment first determined that Columbus and Bessie Lee were entitled to uninsured motorist coverage, and second, confirmed an arbitration award. The trial court later entered an amended summary final judgment reserving jurisdiction for a determination of fees and costs. Travelers now appeals both these orders in the second appearance of this matter before this court. Travelers Insurance Co. v. Lee, 358 So.2d 88 (Fla. 3d DCA 1978).

In the first appearance of this matter before this court, Travelers challenged an order denying its motion to enjoin arbitration of an uninsured motorist claim by Columbus and Bessie Lee against Travelers. After denying Travelers’ motion for a temporary stay, this court ultimately ruled that the “trial court should have granted appellant’s motion to enjoin the arbitration proceedings” because Travelers had asserted a coverage question in a complaint for declaratory relief. Travelers Insurance Co. v. Lee, 358 So.2d 88, 89 (Fla. 3d DCA 1978). Unfortunately, this court’s decision in that prior appeal was rendered two weeks after the arbitration panel made its award.

Arguing that the award could not be given effect because the arbitration should have been stayed, and claiming that to do otherwise would deny Travelers its day in court, Travelers moved the trial court to vacate the award. Faced with the problem of an award decided by an arbitration proceeding that should have been stayed, the trial court denied the motion to vacate the award, but gave Travelers an opportunity to appeal the decision to this court. That appeal, taken from the denial of a motion to vacate, was dismissed for lack of jurisdiction. Travelers Insurance Co. v. Lee, Case No. 78-1887, appeal dismissed November 9, 1978.

The matter continued in the trial court which then entered a summary final judgment in the declaratory action in favor of the insureds, Columbus and Bessie Lee. In the judgment, the trial court first determined that the other parties involved in the automobile accident were uninsured motorists and that the Lees were entitled to coverage under the Travelers policy. The trial court then confirmed the arbitration award of the policy limits of $30,000 in favor of Columbus Lee. Travelers appeals from this judgment and the judgment as amended to reflect the reservation of jurisdiction for an award of fees and costs.

This court, through inadvertence, created an anomaly when we failed to grant the motion for temporary stay thereby allowing arbitration to proceed; yet we ultimately held that arbitration should have been stayed. To effectuate this court’s earlier decision in Travelers Insurance Co. v. Lee, supra, we reverse that portion of the summary final judgment confirming the arbitration award.

There is no merit in other issues presented. The judgments appealed are, therefore, reversed in part and affirmed in part, and the cause is hereby remanded for further proceedings in accordance with this opinion.

      . On April 11, 1978, the arbitrators entered an award directing Travelers to pay $30,000 to Columbus Lee and $1,500 to his wife, Bessie. Upon an objection filed by Travelers’ counsel stressing, among other things, that the policy limits were only $30,000, the arbitrators entered a corrected award on May 30, 1978. The corrected version awarded $28,000 to Columbus Lee and $1,500 to his wife. A second corrected award was entered on July 20, 1978. This award reflected that the plaintiffs had dropped the derivative claim of the wife and requested that the full policy limits be given to Columbus Lee.

      . Accord Lumbermen’s Mutual Casualty Co. v. Beaver, 355 So.2d 441 (Fla. 4th DCA 1978) deciding that the trial court erred in returning the questions of liability and damages to the arbitrators after having determined the coverage issue. See also Cruger v. Allstate Insurance Co., 162 So.2d 690 (Fla. 3d DCA 1964) and § 682.03(4), Fla.Stat. (1975). But see Midwest Mutual Insurance Co. v. Santiesteban, 287 So.2d 665 (Fla. 1973), holding that arbitrators can in no way affect disputed coverage.


author: ANSTEAD, Judge.

text:
    CITY OF CORAL SPRINGS, Appellant, v. BROWARD COUNTY, a political subdivision of the State of Florida, Appellee.
    No. 79-334.
    District Court of Appeal of Florida, Fourth District.
    July 9, 1980.
    Rehearing Denied Sept. 25, 1980.
    Paul J. McDonough, Coral Springs, for appellant.
    William Robert Leonard of Coleman, Leonard & Morrison, Fort Lauderdale, for appellee.
   ANSTEAD, Judge.

This is an appeal from a final judgment denying the City of Coral Springs’ right to foreclose upon certain property owned by Broward County for an unpaid sewer line assessment. At issue is whether the City was estopped to enforce its lien by virtue of mistaken information conveyed to the county by an employee in the City’s finance department.

To establish the defense of equitable es-toppel, the County called Daphne Wright, a former employee. She testified that upon instructions from her superior, she telephoned and spoke directly to the clerk of the City of Coral Springs. She gave a detailed explanation of the purpose of her call, and then was transferred to another department or employee. It was this second employee who gave the information which was ultimately relied and acted upon. The court also admitted an affidavit into evidence which Mrs. Wright had executed earlier which states:

On August 6,1974,1 telephoned the Coral Springs City Clerk’s Office. The City Clerk, Mrs. Catherine McGarity, answered the phone. I identified myself and advised her I was calling on behalf of the County to inquire of the City of Coral Springs about any unpaid taxes or liens by the City against Lots 7 and 8, Block A, Greater Coral Springs Research and Development Park Addition, same being 7.Y2 ac. ± at Sample Road and N.W. 127 Avenue in Coral Springs, owned by Naples Twin Lakes, Inc., because the County was negotiating with the owners to purchase said site.
The Clerk, Mrs. McGarity, advised me to hold the phone, that she would transfer the call to “Finance”, and that Peggy Day would look it up and answer my inquiry. Thereupon, I spoke to Finance Dept, and a lady, whom I presumed to be Mrs. Day, spoke to me.
I repeated the purpose of my call to this lady, identified the land parcel and the owner, and she requested me to hold the phone while she checked the records to determine what taxes, claims or liens the City had, if any, of record against either Naples Twin Lakes, Inc., or the subject parcel of land. Shortly thereafter she reported to me: “No, there are no liens of any kind, nothing in the City records showing any liens, assessments or unpaid taxes, mowing liens, water standby or any claims by the City of any kind.” She further stated any sewer assessments due were included in the purchase price to original owners or first purchasers from original owners. I advised her that Mr. Merl Richman, President of Naples Twin Lakes, Inc. had advised us that he had applied for a building permit to erect warehouses on the property and asked if she knew whether he had “pulled” the permit. She said she did not know, because that would be handled by the Building Dept. She said she did not know anything about Naples Twin Lakes, Inc. or Merl Richman.

In addition to the testimony of Mrs. Wright, Peggy Day, an employee of the finance department, testified that it was part of her regular duties to furnish information as to sewage assessment liens, but that she could not recall the specific conversation in question, and it was her usual practice to take information from callers and return the call later or respond by mail.

To justify a claim of estoppel against a governmental body, there must be (1) a representation by the party estopped to the party claiming estoppel as to some material fact; (2) a reliance upon the representation by the party claiming the estop-pel; and (3) a change in such party’s position caused by his reliance upon the representation to his detriment. Department of Revenue v. Hobbs, 368 So.2d 367 (Fla. 1st DCA 1979), appeal dismissed 378 So.2d 345 (Fla.1979). The act on which the aggrieved party relied must be one on which he had a right to rely. Greenhut Construction Company, Inc. v. Henry A. Knott, Inc., 247 So.2d 517 (Fla. 1st DCA 1971). The doctrine of equitable estoppel may be invoked against a municipality in the same manner as an individual. Enderby v. City of Sunrise, 376 So.2d 444 (Fla. 4th DCA 1979).

In Enderby, supra, we stated:

There is no question that the doctrine of equitable estoppel may be invoked against a municipality as if it were an individual. Hollywood Beach Hotel Co. v. City of Hollywood, 329 So.2d 10 (Fla. 1976).
Historically, however, the doctrine has not been applied against a municipality when the action upon which the individual relies has been unauthorized or unlawful. Id. at 445

We believe the evidence of estoppel presented in this case was sufficient to meet the criteria set out in the cases cited, supra. In particular we note that the evidence relied on by the county indicates that the city employee was specifically authorized to supply lien information for the purpose requested by the county, and in addition, she was specifically advised of this purpose. Under these circumstances, and unlike the factual situation involved in Enderby, supra, we believe the action of the municipal employee here was shown to be both lawful and authorized.

Accordingly, the judgment of the trial court is hereby affirmed.

LETTS, C. J., and HURLEY, J., concur.


author: OTT, Judge.

text:
    STATE of Florida, Appellant, v. Paul A. SANDERS, Appellee.
    No. 79-1866.
    District Court of Appeal of Florida, Second District.
    July 16, 1980.
    Rehearing Denied Sept. 9, 1980.
    Jim Smith, Atty. Gen., Tallahassee, and William I. Munsey, Jr., Asst. Atty., Gen., and G. P. Waldbart, Legal Intern, Tampa, for appellant.
    Peter M. de Manió, Sarasota, for appellee.
   OTT, Judge.

A loaded revolver was taken from the glove compartment of appellee’s truck during an inventory search following his arrest for driving under the influence of alcohol. On a second charge of illegal possession of a hand gun, appellee moved to suppress the evidence on the grounds of an illegal search and seizure. We reverse the suppression order.

Appellee was stopped by police officers on a Sarasota thoroughfare at about 4:00 a. m. He pulled over and parked in the outside lane, which was for right turns only. There was no parking lane. Although the street was fairly deserted at that early hour, it was a main thoroughfare and would become increasingly congested as the morning rush hour approached. A vehicle parked in the “right turn only” lane would constitute a hazardous impediment to traffic.

Field sobriety tests at the scene revealed appellee’s intoxication. He was arrested and placed in the police cruiser. When he requested permission to lock his truck, the officers advised him that it could not be left where it was, consequently they were impounding it for safekeeping and its contents would be carefully inventoried. Appellee made no response or any further requests or comments.

Appellee’s home is only a few blocks from the scene of his arrest, and his wife was home at the time. Appellee himself was at least temporarily residing at a motel about a block from where he was stopped. There are several phones in the immediate area, but at no time did appellee ask to use one of them.

Sarasota Police have standing instructions to remove any arrestee’s illegally parked vehicle by (1) permitting a qualified passenger to do so, (2) contacting a qualified relative of the arrestee, (3) permitting the arrestee to arrange removal by a private towing service or (4) impoundment. There is no department rule or policy requiring officers to advise arrestees of the options available to them. In the present instance, appellee did not request any alternative method of removing his truck, and the arresting officers did not apprise him of any alternative to the one (impoundment) they selected.

It is well established, of course, that contraband discovered during an “inventory” search of a vehicle properly in custodia legis is admissible into evidence to establish the crime of possession of such contraband. Godbee v. State, 224 So.2d 441 (Fla.2d DCA 1969). Appellee’s motion in this case was predicated on the proposition that his truck was not “properly” impounded because the officers who arrested him violated their affirmative duty to advise him of the other permissible methods of having the vehicle removed from its admittedly illegal parking spot. Had they done so, argued appellant, he would have either called his wife or a private tow truck to remove the truck to either his motel or his home.

At the very threshold of that argument the court is called upon to speculate, or at least to make what might well be a completely unfounded assumption, about what appellee “would have done if.” We are somewhat hesitant to make such an assumption in this case because appellee candidly admitted that he was “very intoxicated" and, in addition, the evidence would seem to indicate that he and his wife were estranged at the time.

However, in order to get to the heart of the real issue here, we will assume that had appellee been aware of his options in the matter he would have elected not to have his truck impounded. In other words, we will presume for purposes of this case that any breach of a duty to advise appellee of the alternatives open to him would be prejudicial. However, we do not want to be understood as indicating that prejudice must be presumed in all such cases. We are not prepared to say that if such a duty ever arises (e. g., by police department regulation) it will be clothed with the sanctity of a Miranda type situation, where failure to advise is prejudicial per se, as a matter of law.

Turning now to the merits of appel-lee’s contention, we are of the opinion that a police officer can impound an illegally or dangerously parked vehicle in the possession of the arrestee at the time of the arrest, and that the officer has no obligation to apprise the arrestee of the alternative procedures sanctioned by the department. State v. Dearden, 347 So.2d 462 (Fla.2d DCA 1977).

We are aware that our sister court in the fourth district has reached an opposite conclusion in several cases on this point (e. g., Session v. State, 353 So.2d 854 (Fla.4th DCA 1977)), while the First District Court of Appeal has adhered to our Dearden decision. Fields v. State, 369 So.2d 603 (Fla.1st DCA 1978). Because of the open split in authority, we have considered the point with special care. On principle, rather than on precedent, we conclude that police officers do not and should not carry the burden suggested by appellee, and that our decision in Dearden was correct.

What is involved at the crux of this matter is the constitutional prohibition against unreasonable searches and seizures. South Dakota v. Opperman, 428 U.S. 364, 96 S.Ct. 3092, 49 L.Ed.2d 1000 (1976). A search without a warrant is prima facie unreasonable, but there are certain permissible exceptions. One of them concerns persons who are arrested. Property in their possession at the time must be taken into official custody if necessary for safekeeping. It would be unthinkable for the police to simply leave an arrestee’s watch, ring and wallet, for example, at the scene of the arrest, or to otherwise fail to keep them safe. Such property must then be inventoried, so that both the owner and the authorities will know precisely what the police are responsible for. South Dakota v. Opperman, supra.

Those same rules govern impoundment of a vehicle in the arrestee’s possession at the time he is arrested. The critical inquiry, of course, is whether impoundment of the vehicle is necessary in order to protect it or the motoring public. Altman v. State, 335 So.2d 626 (Fla.2d DCA 1976). Here, appellee’s truck was illegally parked and constituted a traffic hazard. Undeniably, it had to be moved. G. B. v. State, 339 So.2d 696 (Fla.2d DCA 1976); Godbee v. State, supra. The officers were faced with a “very intoxicated” owner, who was alone in the vehicle, and who made no alternative suggestions or requests. We see no lawful basis for faulting the officers in electing to impound the truck as the quickest and most reliable method of removing and safeguarding it. In a case presenting almost identical circumstances, this court has held that the police had “no alternative” to impounding the vehicle. State v. Cook, 358 So.2d 42 (Fla.2d DCA 1978). The various possibilities sanctioned by the instructions are primarily for the guidance of the officers under the particular circumstances confronting them, and not necessarily for the benefit of the arrestee.

The order of suppression is reversed and the case is remanded to the trial court for further proceedings.

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