text:
    Joseph ROTH, Appellant, v. The STATE of Florida, Appellee.
    No. 80-870.
    District Court of Appeal of Florida, Third District.
    June 10, 1980.
    Joseph Roth, in pro. per.
    Jim Smith, Atty. Gen., for appellee.
    Before HENDRY, NESBITT and BAS-KIN, JJ.
   PER CURIAM.

The defendant was indicted for the offense of first degree murder by a grand jury for the Eleventh Judicial Circuit on June 4, 1976 under Section 782.04, Florida Statutes (1973). At trial, the state announced it would not seek the death penalty in the event the defendant was convicted of first degree murder. On this representation, with the advice of his counsel, agreement by the state, and approval of the court, the defendant expressly waived his right to be tried by a twelve-person jury expressly stipulating that the case be tried by a six-person jury. He was convicted of murder in the first degree, adjudicated, and sentenced to a mandatory twenty-five-year life imprisonment. His judgment of conviction was affirmed here. Roth v. State, 359 So.2d 881 (Fla. 3d DCA 1978), cert. denied, 367 So.2d 1126 (Fla.1979).

The defendant then commenced this collateral attack of the judgment in the sentencing court, pursuant to Florida Rule of Criminal Procedure 3.850, claiming he could not have intelligently and voluntarily relinquished the fundamental right to be tried by a twelve-person jury. He contends his right to be tried by a twelve-person jury as provided by Section 913.10, Florida Statutes (1973) and Florida Rule of Criminal Procedure 3.270 is confirmatory of his organic right to a trial by jury of twelve persons embodied in the Sixth Amendment of the Constitution of the United States and Article I, Sections 16 and 22 of the Florida Constitution.

We find this contention was a matter which could have been raised on direct appeal and is thereby unassailable in a collateral attack on a judgment. Harvey v. State, 383 So.2d 770 (Fla. 3d DCA 1980); Clements v. State, 320 So.2d 44 (Fla. 3d DCA 1975); Phillips v. State, 313 So.2d 428 (Fla. 3d DCA 1975). The fact that the basis of the defendant’s collateral attack is alleged to be one of constitutional dimension does not preclude a waiver by the failure to assert it on direct appeal. Clark v. State, 363 So.2d 331 (Fla.1978); Sanford v. Rubin, 237 So.2d 134 (Fla.1970); Harvey v. State, supra.

Additionally, we find that our Supreme Court has approved a defendant’s intelligent waiver of the right to trial by jury, in a death case, with consent of the state, and approval of the court under the identical authority the defendant relies upon here. State v. Garcia, 229 So.2d 236 (Fla.1969). It follows then that where the state waived the right to seek the death penalty, the defendant could agree, with the consent of the state, and approval of the court, to be tried by a six-person jury.

Accordingly, the order denying the defendant’s application for post judgment relief, pursuant to Florida Rule of Criminal Procedure 3.850, is affirmed.


source: Caselaw Access Project

author: BERANEK, JOHN R., Associate Judge.

license: Public Domain

text:
    STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, Appellant, v. Dennis J. SINACOLA, Allstate Insurance Company, et al., Appellees.
    No. 77-2402/NT4-83.
    District Court of Appeal of Florida, Fifth District.
    June 11, 1980.
    Rehearing Denied July 28, 1980.

      Hale Baugh and Herbert A. Langston, Jr. of Driscoll, Baugh, Langston, Layton & Kame, P. A., Cocoa Beach, for appellant.
    Edward A. Perse of Horton, Perse & Ginsberg, Miami, and Nance & Cacciatore, Melbourne, for appellees.
   BERANEK, JOHN R., Associate Judge.

This is an appeal from a final declaratory judgment in a complex automobile insurance contract dispute involving stacking of uninsured motorist coverage and construction of an “other insurance” clause as applied to uninsured motorist coverage. The appellant, State Farm Mutual Automobile Insurance Company, has raised four points on appeal. We reverse, finding that the trial court erred in refusing to apply the “other insurance” provision in the policy.

The accident occurred on April 17, 1976, prior to the effective date of Section 627.-4132, Florida Statutes (1977), prohibiting stacking. Four individuals, three different insurance companies, numerous vehicles and various policies are involved. On the day in question Bruce Christopher was driving a car owned by Joseph Sinacola when he was involved in an accident with another vehicle driven by a negligent third party tortfeasor. Joseph Sinacola, the owner of the car, and Dennis Sinacola, his adult son, were passengers in the car driven by Christopher, who was neither a member of the Sinacola household nor a relative of the family.

Christopher had an automobile liability insurance policy containing uninsured/underinsured coverage with State Farm Mutual Automobile Insurance Company. The State Farm policy issued to Christopher had limits of $100,000/$300,000. Joseph Sinacola had insurance coverage with Allstate Insurance Company. Joseph Sinacola owned three cars with coverage of $50,000 per car. Dennis Sinacola had two policies providing uninsured motorist coverage of $15,000 and $50,000 respectively with State Farm Mutual Automobile Insurance Company. The third party tortfeasor had available liability insurance coverage of $30,000, with Government Employees Insurance Company.

As a result of the accident and the negligence of the third party tortfeasor, Joseph Sinacola was killed and Dennis Sinacola was seriously injured. Government Employees Insurance Company paid its policy limits of $30,000 in settlement of the claim against the negligent tortfeasor. This settlement was split between Joseph Sinacola’s estate and Dennis Sinacola and his wife, who joined him as a plaintiff.

The various parties involved eventually agreed to arbitration. Immediately prior to the arbitration hearing, however, State Farm filed a suit for declaratory decree contesting the availability of its uninsured motorist coverage in the Christopher policy to satisfy the claims of both Sinacolas. The trial court determined the Christopher policy did provide uninsured motorist coverage for the Sinacola claims and that the “other insurance” clause contained in the State Farm policy could not be applied to reduce that coverage. It is from this final judgment which State Farm appeals.

Before reaching the issue of application of the “other insurance” clause, we must first traverse the stacking of the various policies involved. The trial court determined that Joseph Sinacola’s estate had a total of $250,000 available in uninsured motorists benefits. This was arrived at by stacking the $50,000 coverage on each of Joseph Sinacola’s three cars for a total of $150,000. To this the trial court added the $100,000 in uninsured motorist benefits under the Christopher policy, for a total of $250,000. By stacking Dennis Sinacola’s two policies, one for $15,000 and one for $50,000, with an additional $50,000 from one of the Joseph Sinacola policies, plus an additional $100,000 of uninsured motorist coverage arising from the Christopher State Farm policy, the trial court found Dennis Sinacola had $215,000 in uninsured motorists coverage.

State Farm did not contest the stacking holdings outlined above and agrees all of the various coverages do stack. State Farm simply contends that the “other insurance” provision contained in the Christopher State Farm policy was effective and limited the recoveries against the Christopher State Farm policy. It is important to note what this case does not involve. There is no claim by Christopher or any member of his household or relative for uninsured motorist coverage. There is no denial by State Farm of any of the benefits of the various State Farm policies issued to Dennis Sinacola and there is no assertion by Allstate Insurance Company that the stacking of its policies was improper.

The Christopher State Farm policy provided in relevant part:

SECTION III — UNINSURED MOTOR VEHICLE COVERAGE INSURING AGREEMENTS * * *
DEFINITIONS — SECTION III * * *
Insured — The unqualified word “insured” means * * *
(2) any other person while occupying an insured motor vehicle; and * * * Insured Motor Vehicle — means: * * *
(2) an automobile not owned by the named insured or any resident of the same household, other than a temporary substitute automobile, while being operated by such first named insured or resident spouse * * *
POLICY CONDITIONS * * *
9. Other Insurance. * * *
Under coverage U [Uninsured/Underin-sured Motorist Coverage] with respect to bodily injury to an insured while occupying a motor vehicle not owned by a named insured under this coverage, the insurance hereunder shall apply only as excess insurance over any other similar insurance available to such occupant, and this insurance shall then apply only in the amount by which the applicable limit of liability of this coverage exceeds the sum of the applicable limits of liability of all such other insurance.
Subject to the foregoing paragraph, under coverage U if the insured has other similar insurance available to him against a loss covered by this coverage, then the damages shall be deemed not to exceed the higher of the applicable limits of liability of this insurance and such other insurance, and the company shall not be liable under this coverage for a greater proportion of the applicable limit of liability of this coverage than such limit bears to the sum of the applicable limits of liability of this insurance and such other insurance. * * * (Emphasis in original)

Under these policy provisions, State Farm agrees that the Sinacolas were both insured and that each had $100,000 in uninsured motorist coverage available. State Farm asserts that since Joseph Sinacola and Dennis Sinacola both had over $100,000 in other available uninsured motorist coverage, the condition contained in subparagraph 9 pre-eluded their recovery under the Christopher State Farm policy. Clearly under the trial court’s ruling, Dennis Sinacola had $115,000 under his own State Farm policy and his father’s Allstate policy. Joseph Sinacola had $150,000 in uninsured motorist coverage under his own Allstate policies. Under these circumstances, State Farm contends that there is no reason not to apply the “other insurance” provision of the policy to limit the Christopher coverage. We agree and reverse the trial court for failure to apply the “other insurance” provision.

The fact that the parties hereto do not contest stacking of the various coverages makes it unnecessary for this Court to trace and attempt to sort out the stacking of UMI coverage. See Tucker v. Government Employees Insurance Company, 288 So.2d 238 (Fla.1974), on remand 291 So.2d 240 (Fla. 3d DCA 1973), which gave rise to the concept of stacking. Here we deal not with the question of whether the policies stack but, assuming stacking, with whether the “other insurance” clause bars recovery. There is a definite split of authority throughout the country as to the effect and enforceability of “other insurance” clauses in a UMI context. In this respect the cases from various jurisdictions are collected and annotated in 28 ALR 3rd 551, Uninsured Motorist Insurance: Validity and Construction of “Other Insurance” Provisions (1969). Florida is clearly among those states which has generally condemned and refused to enforce such clauses in a UMI context. Sellers v. United States Fidelity & Guaranty Company, 185 So.2d 689 (Fla.1966), is the leading case on the subject, condemning the negation of UMI coverage based on “other insurance”, “excess — escape” or “prorata” clauses. Under the basic rationale of Sellers and its progeny, if a carrier accepts a premium for providing UMI coverage, that carrier will not be allowed to abrogate the coverage merely because the insured might be able to recover on a similar coverage under a different policy of which the insured happens to be a beneficiary. We have no quarrel with the Sellers rationale, but we do not believe it applies to the situation presented here.

Here, Joseph and Dennis Sinacola were riding as consenting passengers in a Sinaco-la owned automobile being driven by Bruce Christopher. The Sinacolas had adequate uninsured motorist protection on their own cars under their own policies. They stacked and received the benefits of these various policies for which they paid premiums and under which they became first class insureds within the definitions of Mullis v. State Farm Mutual Automobile Insurance Company, 252 So.2d 229 (Fla.1971), and Travelers Insurance Company v. Pac, 337 So.2d 397 (Fla. 2d DCA 1976), cert. denied, 351 So.2d 407 (Fla.1977). Looking at the problem from Christopher’s point of view, we can see no reason to void the “other insurance” clause in his policy. This clause would have had no application if Christopher had been driving an owned vehicle with the Sinacolas as passengers. Here the other insurance clause applied only to an insured occupant who was occupying a vehicle not owned by the named insured, an isolated application. If the Sinacolas had possessed UMI coverage of less than $100,-000 in their own right, they could both recover under Christopher’s UMI coverage.

We have found no case dealing with the question of whether a host/passenger in his own vehicle is entitled to stack UMI coverage of the driver of that vehicle. We further have been cited to no authority controlling the question of whether an “other insurance” clause within the non-owner driver’s policy is enforceable under these specific facts.

We conclude that the “other insurance” clause is enforceable under the facts of this case and under the assumed stacking of the various coverages. We, therefore, reverse the final judgment and remand with directions to enter judgment in favor of State Farm as to the uninsured motorist coverage provided in the Christopher policy.

The appellant also challenges the trial court’s award of $40,000 in attorneys’ fees, citing Roberts v. Carter, 350 So.2d 78 (Fla.1977), as controlling the assessment of attorneys’ fees herein. We reverse the award of attorneys’ fees and remand for reconsideration without reaching the question of entitlement under Roberts. In doing so, we wish to clarify our prior decision in Aetna Life & Casualty Company v. Stanger, 367 So.2d 728 (Fla. 4th DCA 1979). The ruling in that opinion, that the appellee was not a “contracting insured” and the reversal of the attorneys’ fee award based upon Roberts v. Carter, supra, was the result of a concession of counsel. To the extent that it is in conflict with the actual Roberts decision, we withdraw from it. The award of attorneys’ fees in the instant case is reversed because of our reversal of the judgment on uninsured motorist coverage. The issue of attorneys’ fees must thus be re-evaluated by the trial judge.

REVERSED AND REMANDED FOR FURTHER PROCEEDINGS.

DAUKSCH, C. J., and DAKAN, STEPHEN LEE, Associate Judge, concur.

      . This carrier is not a party to this appeal.

      . The parties to the appeal in Aetna Life and Casualty Company v. Stanger, 367 So.2d 728 (Fla. 4th DCA 1979), conceded that based on Roberts v. Carter, 350 So.2d 78 (Fla.1977), the attorneys’ fee award should be reversed. Also see United States Fidelity & Guaranty v. State Farm Mutual Automobile Insurance Company, 369 So.2d 410 (Fla. 3d DCA 1979), footnote 8.


author: PER CURIAM.

text:
    Alexander HARVIN, a/k/a “Zeke”, Appellant, v. The STATE of Florida, Appellee.
    No. 80-1606.
    District Court of Appeal of Florida, Third District.
    Aug. 26, 1980.
    Alexander Harvin, in pro. per.
    Jim Smith, Atty. Gen., for appellee.
    Before SCHWARTZ, NESBITT and DANIEL S. PEARSON, JJ.
   PER CURIAM.

The appellant seeks review of the summary denial of his motion under Fla.R. Crim.P. 3.850 to vacate the judgment and sentence entered against him after a guilty plea. The entry of the plea effectively waived his presently asserted claims that his confession to the crime was involuntary and that evidence against him was the product of an unlawful search and seizure; hence, these matters cannot be considered in a Rule 3.850 proceeding. E. g., Whitlow v. State, 256 So.2d 48 (Fla.2d DCA 1971); Hand v. State, 208 So.2d 307 (Fla.2d DCA 1968). Since there was no allegation that the plea itself was not knowingly and voluntarily entered, or was otherwise subject to legal challenge, the motion was properly denied without evidentiary hearing.

Affirmed.


text:
    Frank MONROE, Appellant, v. The STATE of Florida, Appellee.
    No. 79-646.
    District Court of Appeal of Florida, Third District.
    June 17, 1980.
    Rehearing Denied July 25, 1980.
    Bennett H. Brummer, Public Defender and Elliot H. Scherker, Asst. Public Defender, for appellant.
    Jim Smith, Atty. Gen. and Calvin L. Fox, Asst. Atty. Gen., for appellee.
    Before HENDRY, NESBITT and BAS-KIN, JJ.
   PER CURIAM.

Appellant, Frank Monroe, was found guilty by a jury of murder in the first degree. The trial court adjudicated him guilty of the crime and sentenced him to serve a term of life imprisonment, with a provision that he not be eligible for parole for twenty-five years.

Appellant seeks reversal of his conviction and sentence on the ground that the trial court erred in limiting the cross-examination of a key witness on matters crucial to his credibility.

The ground relied on by appellant for reversal has been carefully considered in the light of the record, briefs and argument of counsel, and we find no reversible error has been made to appear. The record discloses that the case was fully and fairly tried; that the verdict was supported by the evidence and that the rulings of the trial court challenged by appellant did not, on the record and under the law constitute reversible error.

Therefore, the judgment and sentence appealed are affirmed.

Affirmed.


author: PEARSON, TILLMAN, Associate Judge.

text:
    Willie Jean FERRELL, Appellant, v. The STATE of Florida, Appellee.
    No. 79-810.
    District Court of Appeal of Florida, Third District.
    June 17, 1980.
    Rehearing Denied July 25, 1980.

      Bennett H. Brummer, Public Defender and Elliot H. Seherker, Asst. Public Defender, for appellant.
    Jim Smith, Atty. Gen. and Joel D. Rosen-blatt, Asst. Atty. Gen., for appellee.
    Before SCHWARTZ and DANIEL' PEARSON, JJ., and PEARSON, TILLMAN (Ret.), Associate Judge.
   PEARSON, TILLMAN, Associate Judge.

The simple question presented here by appellant Willie Jean Ferrell, defendant below, is whether a'trial court, upon receiving the mandate of a district court of appeal directing a new trial, may extend the speedy trial period for the purpose of allowing the State time to petition the Supreme Court of Florida for certiorari review of the district court of appeal decision. We hold that only by a stay of proceedings pursuant to Fla.R.App.P. 9.310(a) may the trial time be extended for the purpose of further appellate proceedings. See Reno v. Baker, 364 So.2d 538 (Fla. 3d DCA 1978).

This question arose in the following manner. The defendant was convicted of aggravated battery and possession of a firearm during the commission of a felony. On appeal, this court reversed the conviction and remanded the cause for a new trial. The mandate was filed in the trial court and subsequently the State petitioned for a writ of certiorari to review this court’s decision, but did not seek an extension of time for a new trial pursuant to Fla.R.Crim.P. 3.191(g). Two and a half months after the filing of the mandate, the State sought and obtained an extension of the speedy trial period on the sole ground of its pending petition for writ of certiorari to review the decision ordering a new trial. Seven months after the filing of the mandate, the petition for writ of certiorari was denied. Nine months after the filing of the mandate in the trial court, the defendant moved for a discharge pursuant to the speedy trial rule. The motion was denied and the defendant was again convicted, whereupon he brought this appeal urging error in the denial of his motion for discharge.

The interpretation of the rules urged by the appellee State would allow the undue delay of a defendant’s trial upon a petition for writ of certiorari in cases where neither the district court of appeal nor the Supreme Court of Florida found arguable issues of law presented. The rule was obviously intended to provide a restraint by the discretion of the appellate courts in order to limit a stay to those cases where arguable questions of law are presented.

Accordingly, the judgment and sentence are reversed with directions to discharge the defendant.

Reversed.

      . See Fla.R.Crim.P. 3.191(f), which does not list certiorari proceedings to review decisions of district courts of appeal as “exceptional circumstances.”

      . See Committee Note to Fla.R.App.P. 9.120, which governs certiorari proceedings in the Supreme Court of Florida: “It should be noted that the automatic stay provided by former Rule 4.5(c)(6) has been abolished because it encouraged the filing of frivolous petitions and was regularly abused. A stay pending review may be obtained under Rule 9.310 . . The Advisory Committee was of the view that the district courts should permit such stays only where essential. * * * ”


author: SCHWARTZ, Judge.

text:
    ALAN & ALAN, INC., d/b/a Brill & Frieman, Inc., Appellant, v. GULFSTREAM CAR WASH, INC., and William Shapiro, Individually, Appellees.
    No. 79-862.
    District Court of Appeal of Florida, Third District.
    June 17, 1980.

      Shupack & Weisser and Robert A. Shu-pack, North Miami Beach, for appellant.
    Freeman & Evans and Sheldon Evans, Miami, for appellees.
    Before SCHWARTZ and NESBITT, JJ., and EZELL, BOYCE F., Jr., (Ret.), Associate Judge.
   SCHWARTZ, Judge.

The plaintiff-appellant seeks reversal of a judgment entered on a directed verdict in favor of the defendant-appellees in an action for fraud and misrepresentation in the sale of a car wash. We affirm.

In September of 1974, Richard Frieman and Alan Brill (buyers), on behalf of the appellant, commenced negotiations for this transaction with William Shapiro (seller), sole owner of Gulf stream Car Wash. The seller provided the buyers with a financial statement listing the actual monthly gross profits and expenses in the overall operation for a period commencing March 18, 1974 through August 31, 1974. The seller also provided similar figures for September 1974 through November 8, 1974, the date of the closing. Those figures, however, were represented as “projected” rather than actual figures. Prior to the closing, the seller apprised the buyers that the actual profits for the projected period were better than had been anticipated.

The buyers were knowledgeable and experienced in the operation of car washes. They had an opportunity to visit and observe the business in operation prior to the. date of the closing. They also had an opportunity to scrutinize the financial documents submitted to them by the seller and were afforded the full opportunity to verify the figures against the daily cash register tapes. The gross profits represented on the financial data sheet consisted of a summation of the separate components of the car wash operation.

At the trial, the financial documents were admitted into evidence. They were not shown by the buyers to be incorrect, inaccurate or misstated. The buyers testified that they relied upon the financial data submitted to them in the purchase of the car wash. The buyers’ testimony indicated that after they assumed management and operation of the business there was an appreciable decline in operating revenues as compared to those which had been formerly received.

The buyers further introduced the U.S. Small Business Corporation Income Tax Return (Form 1120-F) made and executed by the seller for the comparable period reflected in the financial data submitted by the seller prior to closing. A certified public accountant was permitted to testify and interpret the interrelationship of the two documents for the benefit of the jury. This expert testified that a discrepancy existed between the documents to the extent that the financial data submitted by the seller at the time of the closing showed an overstatement of gross profits in the amount of $18,963 as compared to those reported on the tax return. No further effort was made by the buyers at trial to show that any of the information provided on the tax return was incorrect, inaccurate or misstated.

At the close of the plaintiff’s case, with no further evidence as to the accuracy or inaccuracy of the financial data given to the buyers at the time of the closing, the trial judge directed a verdict in favor of the seller. The buyers claim error in this ruling. We disagree.

The ultimate issue in the case was whether the pre-sale profits of the car wash were in fact what the seller represented them to be, or were, as the plaintiff contended, substantially less than that. On this question all the direct evidence in the case — that is, the seller’s contemporaneously prepared financial records and the actual cash register tapes, all of which were examined by the knowledgeable purchasers before the closing and all of which were introduced by the plaintiff itself — established the accuracy of the seller’s figures. There was no specific evidence whatever to the contrary — no testimony, for example, that the books or the tapes had been inflated or that fewer receipts or more expenses had actually been involved in the operation. In support of its position to the contrary, the plaintiff-buyer introduced below and relies here on a single piece of evidence— the fact that the seller had reported less profits on its income tax return. We cannot accept the argument that this was sufficient to create a jury question.

It is apparent that the profits figure stated in the tax return bears only circumstantially on the actual issue in the case, which is what the profits really were. The plaintiff argues the “reasonable inference” that the reduced amount of profits which were reported to the IRS was the amount which the seller in fact earned during the disputed period. It is, however, sad but undoubtedly true that the contents of a tax return do not always accurately reflect the full extent of a taxpayer’s actual liability and may be motivated simply by a desire to save taxes. It is a well-settled principle that a fact cannot be established by circumstantial evidence which is perfectly consistent with direct, uncontradicted, reasonable and unimpeached testimony that the fact does not exist. Pennsylvania R. Co. v. Chamberlain, 288 U.S. 333, 53 S.Ct. 391, 77 L.Ed. 819 (1933); Kuykendall v. United Gas Pipe Line Co., 208 F.2d 921 (5th Cir. 1953); Curtis v. Hunt, 158 Ala. 78, 48 So. 598 (1909); Neill v. Hill, 32 Ga.App. 381, 123 S.E. 30 (1924); Bulatao v. Kauai Motors, Ltd., 49 Hawaii 1, 406 P.2d 887 (1965); Louisville R. Co. v. Potter, 175 Ky. 258, 194 S.W. 308 (1917); Mooney v. Mooney, 244 Mo. 372, 148 S.W. 896 (1912); Williams v. Ford, 233 S.C. 304, 104 S.E.2d 378 (1958); Cleveland Wrecking Co. v. Butler, 57 Tenn. App. 570, 421 S.W.2d 380 (1967); Esso Standard Oil Co. v. Stewart, 190 Va. 949, 59 S.E.2d 67 (1950); Tisthammer v. Union Pacific R. Co., 41 Wyo. 382, 286 P. 377 (1930). See 23 C.J. Evidence § 1792, n.54 (1921); 32A C.J.S. Evidence § 1039, n.26 (1964); 30 Am.Jur.2d Evidence § 1091, n.20 (1967). Since, at the least, that less is rt Tied on a tax return is entirely consistent with a conclusion that more was in fact earned, we find this rule directly applicable to the case at bar.

Affirmed.

      . Since there was direct evidence to the contrary of the circumstantial inference that plaintiff seeks to draw from the tax return, we need not determine whether the return, standing alone, would be sufficient to preclude a directed verdict. That is, it is unnecessary to decide whether we are sufficiently cynical to believe that it is just as likely that income is under-reported in a tax return as it is that it is accurately stated. Such a conclusion would invoke the rule that circumstantial evidence is insufficient to create a jury question when it is susceptible of two equally reasonable inferences, so that it is a matter of speculation and conjecture as to which inference is accurate. City of Jacksonville v. Waldrep, 63 So.2d 768 (Fla.1953); Fireman’s Fund Indemnity Co. v. Perry, 149 Fla. 410, 5 So.2d 862 (1942); Stigletts v. McDonald, 135 Fla. 385, 186 So. 233 (1938). See Food Fair Stores, Inc. v. Trusell, 131 So.2d 730 (Fla.1961); Winn-Dixie Stores, Inc. v. Manning, 143 So.2d 339 (Fla.2d DCA 1962). See also Pennsylvania R. Co. v. Chamberlain, supra.


text:
    J. M. FIELDS, INC., d/b/a J. M. Fields, a Florida Corporation, Appellant, v. Shirley SMUCKLER, etc., et al., Appellees.
    No. 79-926.
    District Court of Appeal of Florida, Third District.
    June 17, 1980.
    Rehearing Denied July 21, 1980.
    Horton, Perse & Ginsberg and Edward A. Perse, Hawkesworth & Schmick, Miami, for appellant.
    Daniels & Hicks and Mark Hicks, Feld-man, Abramson, Smith & Magidson, Miami, for appellees.
    Before BARKDULL, HUBBART and DANIEL S. PEARSON, JJ.
   PER CURIAM.

The final judgment under review is affirmed upon a holding that: (a) the trial court did not err in denying the appellant’s motion for directed verdict in this cause as the issue of proximate cause was, on this record, properly one for the jury to decide, Vining v. Avis Rent-A-Car Systems, Inc., 354 So.2d 54, 55-56 (Fla.1977); Nicholas v. Miami Burglar Alarm Co. Inc., 339 So.2d 175 (Fla.1976); Holley v. Mt. Zion Terrace Apartments, Inc., 382 So.2d 98 (Fla.3d DCA 1980); Angell v. F. Avanzini Lumber Co., 363 So.2d 571 (Fla.2d DCA 1978); Tamiami Gun Shop v. Klein, 109 So.2d 189 (Fla. 3rd DCA 1959); 18 U.S.C.A. § 922(b)(1) (1976); see Huddleston v. United States, 415 U.S. 814, 824, 94 S.Ct. 1262, 1268, 39 L.Ed.2d 782 (1974); Hetherton v. Sears, Roebuck & Co., 593 F.2d 526 (3rd Cir. 1979); Underwood v. United States, 356 F.2d 92 (5th Cir. 1966); Franco v. Bunyard, 261 Ark. 144, 547 S.W.2d 91 (1977); (b) the trial court did not err in denying appellant’s motion for a new trial as there was, on this record, sufficient evidence to sustain the jury’s compensatory damage award, Savarese v. Hill, 128 So.2d 775, 776, n.4 (Fla.3d DCA 1961); (c) the trial court did not err in declining to strike the claim for punitive damages, as, in this record, the claim was properly submitted to the jury, Doral Country Club, Inc. v. Lind-gren Plumbing Co., 175 So.2d 570, 571 (Fla.3d DCA 1965); and, (d) the trial court did not err in denying the appellant’s motion for a set-off, as, on this record, no right to a set-off existed. Devlin v. McMannis, 231 So.2d 194 (Fla.1970).

Affirmed.


text:
    CORPORATION DE GESTION STE-FOY, INC., Appellant, v. FLORIDA POWER AND LIGHT COMPANY, Appellee.
    No. 79-1802.
    District Court of Appeal of Florida, Third District.
    June 17, 1980.

      Greenberg, Traurig, Hoffman, Lipoff, Quentel & Wolff and Richard G. Garrett and Sue M. Cobb, Miami, for appellant.
    Steel, Hector & Davis and Joseph P. Klock, Jr. and Gerry S. Gibson, Miami, for appellee.
    Before BARKDULL, HUBBART and SCHWARTZ, JJ.
   SCHWARTZ, Judge.

The appellant, Corporation De Gestión Ste-Foy, Inc., a Canadian corporation which was the plaintiff below, owns an apartment building called the Beekman Towers in Surfside, Florida. In March, 1979, the Florida Power & Light Company (FPL) informed it that an employee had misread the master electric meter at its premises between January, 1976 and February, 1979. As a result, FPL had underbilled and the appellant had underpaid some $99,000 for electricity furnished during that period. Upon the power company’s demand for payment of that amount, the appellant brought this action against it in the Dade County Circuit Court. The complaint did not allege that the Beekman Towers had not actually consumed the $99,000 worth of electricity in question. It sought, however, a declaratory judgment that the power company was es-topped from collecting the amounts it had negligently underbilled or that an accord and satisfaction of the claim had been effected by the payment of FPL’s successive monthly billings in the interim. As a corollary, the plaintiff prayed for an injunction precluding the power company from shutting off its electricity for the non-payment of the $99,000. The trial judge dismissed the complaint and the plaintiff has appealed.

We affirm on the ground that the complaint failed to state a cause of action. The thrust of the plaintiff’s complaint was to relieve it of the obligation to pay for some of the electricity it admittedly received, thus permitting it to pay less for the same service than other customers to whom FPL had forwarded accurate bills. The established law of the state, however, as expressed in Section 366.03, Florida Statutes (1977) is that

“[N]o public utility shall make or give any undue or unreasonable preference . to any person or locality . . .”

The public policy embodied in this and similar statutory provisions precludes a business whose rates are governmentally regulated from granting a rebate or other preferential treatment to any particular individual. Accordingly, it is universally held that a public utility or common carrier is not only permitted but is required to collect undercharges from established rates, whether they result from its own negligence or even from a specific contractual undertaking to charge a lower amount. E.g., Louisville & Nashville R. Co. v. Maxwell, 237 U.S. 94, 35 S.Ct. 494, 59 L.Ed. 853 (1915); W. S. Dickey Clay Manufacturing Company v. Corder, 310 F.2d 764 (5th Cir. 1962), cert. dismissed, 373 U.S. 906, 83 S.Ct. 1294, 10 L.Ed.2d 197 (1963); Butler v. Bell Oil & Refining Co., 70 Cal.App.2d 728, 161 P.2d 559 (1945). In Brandon v. Lichty, 133 Fla. 520, 182 So. 897 (1938) the supreme court held that a carrier could not be estopped or otherwise barred from recovering the full amount of freight charges indicated in the applicable ICC tariff, notwithstanding its express agreement to transport the goods in question for less. The Brandon case reflects the general rule that the equitable doctrine of estoppel cannot be employed to effect results which are unlawful or otherwise contrary to public policy. E.g., Enderby v. City of Sunrise, 376 So.2d 444 (Fla. 4th DCA 1979); United Sanitation Services of Hillsborough, Inc. v. City of Tampa, 302 So.2d 435 (Fla. 2d DCA 1974).

Applying these principles to the precise situation involved in this case, three well-reasoned decisions from other jurisdictions have squarely held that a customer of a public utility simply has no defense — either of estoppel or accord and satisfaction— to charges for services which were actually furnished but which had previously been negligently underbilled. West Penn Power Co. v. Nationwide Mutual Ins. Co., 209 Pa. Super. 509, 228 A.2d 218 (1967); Chesapeake and Potomac Telephone Company of Virginia v. Bies, 218 Va. 1010, 243 S.E.2d 473 (1978); Wisconsin P. & L. Co. v. Berlin Tanning & Mfg. Co., 275 Wis. 554, 83 N.W.2d 147 (1957). We entirely agree with and endorse these decisions.

Affirmed.

      . The trial court based its order of dismissal on the alternative grounds that (a) the Public Service Commission had exclusive jurisdiction and the circuit court therefore lacked subject matter jurisdiction over the controversy and (b) even if the court possessed concurrent jurisdiction, it would defer to the PSC’s expertise under the “primary jurisdiction” doctrine. Our affirmance of the order below for another reason, Stuart v. State, 360 So.2d 406 (Fla.1978); Stone v. Rosen, 348 So.2d 387 (Fla. 3d DCA 1977), is not to be taken as an approval of these conclusions. See, contra, State ex rel. Railroad Commissioners v. Southern Telephone and Construction Co., 65 Fla. 270, 61 So. 506 (1913); Florida Water & Utilities, Inc. v. Cutler Ridge Associates, 376 So.2d 273 (Fla. 3d DCA 1979).

      . The West Penn case separately treats and properly rejects the plaintiffs argument that the accord and satisfaction doctrine applies to this situation. It is apparent that the plaintiff’s past payment of the erroneous monthly bills could not effect an “accord,” because no claim was then either unliquidated or in dispute. 10 Fla.Jur.2d, Compromise, Accord, and Release § 5 (1979). Instead, the parties were simply laboring under a mistake as to the sums actually due. FPL was therefore authorized subsequently to recover the correct amounts. Maryland Casualty Co. v. Krasnek, 174 So.2d 541 (Fla.1965); see Ferguson v. Cotier, 382 So.2d 1315 (Fla. 5th DCA 1980).

      . The plaintiff’s estoppel contention is based on the assertion that if it had known the full extent of the cost of electricity, it would have passed these expenses on to its tenants either through increased rentals or by an additional specific charge. The Wisconsin case rejects just such a claim, citing several decisions which involve the a fortiori situation in which the customer of a common carrier has expended non-refundable moneys out-of-pocket because of an improper undercharge, but was nonetheless required thereafter to pay the carrier the full amount. Illinois Central R. Co. v. Henderson Elevator Co., 226 U.S. 441, 33 S.Ct. 176, 57 L.Ed. 290 (1913); Texas & Pacific R. Co. v. Mugg & Dryden, 202 U.S. 242, 26 S.Ct. 628, 50 L.Ed. 1011 (1906); Chicago & N. W. R. Co. v. J. J. Case Plow Works, 173 Wis. 237, 180 N.W. 846 (1921). The sole authority cited by the plaintiff on the estoppel issue, George W. Davis & Sons, Inc. v. Askew, 343 So.2d 1329 (Fla. 1st DCA 1977), holds that the state may be estopped from belatedly asserting a tax liability upon a party which had essentially been acting as a collecting agent for taxes actually paid by its customers. The Davis case has no application to this one, in which the plaintiff is the sole entity liable to pay for the electricity and claims only the loss of a speculative opportunity to pass along or to recapture those amounts.


text:
    Melissa MAXWELL, Appellant, v. SOUTH MIAMI HOSPITAL FOUNDATION, INC., a Florida not for profit corporation, Appellee.
    No. 79-2178.
    District Court of Appeal of Florida, Third District.
    June 17, 1980.
    Pelzner, Schwedock & Finkelstein and Peter S. Schwedock, Miami, for appellant.
    George A. Buehmann, South Miami, for appellee.
    Before BARKDULL, HUBBART and BASKIN, JJ.
   PER CURIAM.

The final summary judgment under review is reversed and the cause is remanded to the trial court with directions to enter a final summary judgment in favor of the appellant Melissa Maxwell, as requested below, upon a holding that the hospital lien filed by appellee South Miami Hospital Foundation, Inc., pursuant to Ch. 27032, Laws of Florida (1951), in the subject personal injury tort action was extinguished by operation of law when the appellant and appellee amicably settled the underlying debt upon which the hospital lien was based. 21 Fla.Jur. “Liens” § 28 (1958); see White v. White, 129 So.2d 148, 152 (Fla.lst DCA 1961).


text:
    Julio MORENO and Maria Moreno, Appellants, v. FIDELITY & CASUALTY COMPANY OF NEW YORK, Appellee.
    No. 79-2219.
    District Court of Appeal of Florida, Third District.
    June 17, 1980.
    Rehearing Denied July 18, 1980.

      Lopez & Saldise and Lane S. Abraham, Miami, for appellants.
    Demos, Carter & Dougherty and James P. Dougherty, II, Miami, for appellee.
    Before BARKDULL, HUBBART and BASKIN, JJ.
   PER CURIAM.

The final summary judgment under review, which was rendered in this declaratory judgment action, is reversed upon a holding that appellant insured Julio Moreno was entitled by law to stack the underinsured motorist coverages in the two subject insurance policies, which entitlement could not be abrogated by policy provision, as the accident herein occurred prior to the effective date of Section 627.4132, Florida Statutes (1979), which prohibits such stacking. Upon this reversal, the cause is remanded to the trial court with directions to enter a declaratory decree in favor of the appellants Julio Moreno and Maria Moreno wherein the total applicable underinsured motorist coverage herein, after computing the appropriate stacking and set-offs required by law, is $15,000. Dewberry v. Auto-Owners Insurance Co., 363 So.2d 1077 (Fla.1978); Tucker v. Geico, 288 So.2d 238, 242 (Fla.1973); State Farm Mutual Automobile Insurance Co. v. Diem, 358 So.2d 39 (Fla.3d DCA 1978); Hunt v. State Farm Mutual Insurance Co., 349 So.2d 642 (Fla. 1st DCA 1977); State Farm Mutual Automobile Insurance Co. v. Anderson, 332 So.2d 623 (Fla. 4th DCA 1976); State Farm Mutual Automobile Insurance Co. v. White, 330 So.2d 858 (Fla.2d DCA 1976).

Reversed and remanded.


text:
    Angel BENITEZ, Emmco Insurance Company, Excel Insurance Company and Washington Insurance Company d/b/a Providence Washington Insurance Company, Appellants, v. INSURANCE COMPANY OF NORTH AMERICA, Andres Delgado, Julia Delgado and Hortencia Doveych, Appellees.
    No. 80-389.
    District Court of Appeal of Florida, Third District.
    June 17, 1980.
    Kahn & Gustafson and Richard W. Dris-coll, Ft. Lauderdale, for appellants.

      Reginald M. Hayden and John D. Kallen, Miami, for appellees.
    Before BARKDULL, HUBBART and BASKIN, JJ.
   PER CURIAM.

The order under review is reversed upon a holding that the trial court did not acquire jurisdiction over the defendant Angel Benitez as the substituted service of process attempted herein under Section 48.161 and 48.171, Florida Statutes (1979), was legally ineffective for two reasons [either one of which was sufficient to defeat the substituted service of process] to wit: (a) the plaintiff Insurance Company of North America’s complaint failed, as required by law, to allege that the above defendant was either a non-resident of Florida or was concealing his whereabouts, and (b) there was an insufficient evidentiary showing on this record that the above defendant was, as required by law, either a non-resident of Florida or was concealing his whereabouts. Bird v. International Graphics, Inc., 362 So.2d 316 (Fla. 3d DCA 1978); Leviten v. Gaunt, 360 So.2d 112 (Fla. 3d DCA 1978); Bistricer v. Ehrenreich, 346 So.2d 624 (Fla. 3d DCA 1977); Chase Manhattan Bank, N. A. v. Banco Del Atlantico, 343 So.2d 936, 937 (Fla. 3d DCA 1977); Elmex Corp. v. Atlantic Federal Savings and Loan Ass’n., 325 So.2d 58, 61-62 (Fla. 4th DCA 1976). Upon this reversal, the cause is remanded to the trial court with directions to dismiss the plaintiff’s complaint as to the defendant Angel Benitez.

Reversed and remanded.


text:
    Arturo CHABAU et al., Appellants, v. DADE COUNTY and Key Biscayne Property Taxpayer’s Association, Inc., Appellees.
    No. 80-761.
    District Court of Appeal of Florida, Third District.
    June 17, 1980.
    Rehearing Denied July 21, 1980.
    John G. Fletcher, Coral Gables, for appellants.
    Robert A. Ginsburg, County Atty. and Stanley B. Price, Asst. County Atty., Mann & Dady and Stanley J. Mann, Miami, for appellees.
    Before HENDRY, NESBITT and BAS-KIN, JJ.
   PER CURIAM.

Appellants Chabau and others want to erect an apartment building on Key Biscayne; some 800 Key property owners disapprove of their planned construction. The corporate appellee (hereinafter “association”) professes its authority to represent the individual property owners in their opposition to appellants’ request for zoning variances. The association appealed to the Dade County Board of County Commissioners from the Zoning Appeals Board’s decision approving the variances. After the association’s appeal was made, but before a decision was rendered by the Commissioners, appellants sought a writ of prohibition in the circuit court. Their petition was denied, and appeal to this court was taken from the denial. The petition and appeal challenge the subject-matter jurisdiction of the Board of County Commissioners, which ultimately overruled the Zoning Appeal Board’s decision: According to appellants, the Board of County Commissioners was without authority to overturn the decision of the lower administrative tribunal, because the association lacked standing to appeal to that Board. We agree that the association was without standing to appear before the Board of County Commissioners, and reverse the ruling of the circuit court.

We are referred by both parties to § 33-313, Dade County Code (1979):

Any appealable decision of the zoning appeals board may be appealed by an applicant, governing body of any municipality, if affected, or any aggrieved party whose name appears in the record of the zoning appeals board. .

Thus, if the association were not an “aggrieved party”, it could not properly appeal to the Board of County Commissioners, that Board could not review the decision of the Zoning Appeals Board, and any decision of the Commissioners would be void ab initio.

It is clear that a representative association, such as appellee, could not sue in state courts; it would have no standing, unless it, rather than its members, had suffered some special injury. United States Steel Corp. v. Save Sand Key, Inc., 303 So.2d 9 (Fla. 1974); Hemisphere Equity Realty Corp. v. Key Biscayne Property Taxpayer’s Association, Inc., 369 So.2d 996 (Fla.3d DCA 1979). The association urges, however, that if it is not “aggrieved” sufficiently to have state court standing, it nevertheless is aggrieved for purposes of review by the Board of County Commissioners.

Although the appellees have referred us to two foreign decisions in which the requirement of aggrievement was lowered to facilitate administrative appeal by representative groups, we are not disposed to embrace their holdings. Contra our decision, Douglaston Civic Association, Inc. v. Galvin, 36 N.Y.2d 1, 324 N.E.2d 317, 364 N.Y.S.2d 830 (1974); East Camelback Homeowners Association v. Arizona Foundation for Neurology and Psychiatry, 19 Ariz.App. 118, 505 P.2d 286 (1973).

If Dade County wishes to liberalize access to its local tribunals, it may undertake to do so.

We have considered the other arguments of appellees, and find them to be similarly without merit. Therefore we have concluded that the circuit court erred in denying the writ of prohibition.

For the reasons stated the order appealed is reversed.

Reversed.


text:
    Louise PARHAM, Appellant, v. LIBERTY BUILDERS, INC., Westinghouse Credit Corporation, et al., Appellees.
    No. 78-1564/NT4-87.
    District Court of Appeal of Florida, Fifth District.
    June 18, 1980.

      Albert P. McIntosh, Jr., Orlando, for appellant.
    James E. Foster of Fishback, Davis, Dominick & Bennett, Orlando, for appellee, Westinghouse Credit Corporation.
   PER CURIAM.

Louise Parham was the plaintiff/counter-defendant in the trial court where she sued to cancel a mortgage. Westinghouse Credit Corporation answered and defended on the theory that it was a holder in due course; it also counterclaimed to foreclose the mortgage. The case was tried before the court sitting without a jury and after the completion of plaintiff’s case, the court granted defendant’s motion for directed verdict and thereafter entered judgment for the defendant upon its counterclaim.

With due consideration for the rules governing the granting of a motion for directed verdict, we conclude the trial court’s action was warranted and proper. Appellant having failed to demonstrate reversible error, the judgment below is AFFIRMED.

DOWNEY, JAMES C., BERANEK, JOHN R., and HURLEY, DANIEL T. K., Associate Judges, concur.

      . Tiny’s Liquors, Inc. v. Davis, 353 So.2d 168 (Fla. 3d DCA 1978).

      . On appeal, the extraordinary allegation is made that appellant was coerced into signing a blank mortgage. It is stated her husband fell on the floor with a heart attack while she was in the process of signing the papers but that she signed them anyway in order to go take care of him. We have read the trial transcript and there simply was no testimony presented supporting this rather bizarre allegation.


text:
    Richard F. HAYES, Appellant, v. Vincent A. LLOYD, Appellee.
    No. 78-2273.
    District Court of Appeal of Florida, Fourth District.
    June 18, 1980.
    Rehearing Denied July 28, 1980.
    Richard F. Hayes, pro se.
    Vincent A. Lloyd, pro se, of Lloyd & Brown, Fort Pierce, for appellee.
   PER CURIAM.

This is an appeal from the entry of a final summary judgment in a suit for attorneys fees. The record unequivocally establishes an agreement between the parties for legal services to be compensated by a reasonable fee. Concurrent with the filing of the motion for summary judgment and affidavit in support thereof, appellee filed an affidavit, executed by an attorney not involved in the litigation, which set forth his opinion as to what amount constituted a reasonable attorneys fee. Neither in his counter-affidavit, nor at the hearing on the motion for summary judgment, did appellant contest the use of affidavits to establish a reasonable fee. Given the state of the record and counsel’s failure to object to the use of affidavits to establish a reasonable fee, we find appellant has waived the point and the judgment below is

AFFIRMED.

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

      . Cf. Geraci v. Kozloski, 377 So.2d 811 (Fla.4th DCA 1979).


author: MOORE, Judge.

text:
    Doyle Harold JONES, Appellant, v. STATE of Florida, Appellee.
    No. 79-108.
    District Court of Appeal of Florida, Fourth District.
    June 18, 1980.
    G. Russell Petersen, Vero Beach, for appellant.
    Jim Smith, Atty. Gen., and John D. Ceci-lian, Asst. Atty. Gen., Tallahassee, for ap-pellee.
   MOORE, Judge.

The defendant appeals convictions for possession and delivery of cocaine. He contends, in part, that the trial court erroneously limited cross-examination of the prosecution’s chief witness and improperly rebuked defense counsel in the presence of the jury. We reverse.

This case involved the controlled purchase of cocaine from the appellant by a police informant, Billy Duane Rowley, Jr. Although Mr. Rowley was wired with a listening device during the cocaine purchase, that device unfortunately failed to operate and the purchase was not recorded. No one else observed the transaction. Thus, Mr. Row-ley’s testimony was the key to the State’s case which made his credibility extremely important.

During cross-examination of Mr. Rowley, defense counsel asked, “Now, isn’t it true that you told Bill Gammill, the owner of G & H Seafood [Mr. Rowley’s employer] in and about October or November of 1977, that you were going to have Harold Jones [the defendant] killed?” The State objected to this question as being outside the scope of direct examination. The court sustained the objection, even though defense counsel pointed out to the court that he was pursuing this line of questioning to impeach Mr. Rowley’s prior testimony that he did not have a grudge against the defendant.

We recognize the discretion normally accorded the trial court concerning the scope of cross-examination. However, we believe that the trial court clearly abused its discretion in the instant case. All witnesses are subject to cross-examination for the purpose of discrediting them by showing bias, prejudice or interest. Davis v. Ivey, 93 Fla. 387, 112 So. 264 (1927); Brown v. State, 362 So.2d 437 (Fla. 4th DCA 1978); McDuffie v. State, 341 So.2d 840 (Fla. 2d DCA 1977); Webb v. State, 336 So.2d 416 (Fla. 2d DCA 1976). This is especially so where a key state witness is being cross-examined. We find that the proposed cross-examination of Mr. Rowley was proper and its refusal was prejudicial to the appellant. See Brown, supra.

Our decision to reverse this case is further buttressed by our finding that the trial court abused its discretion in rebuking defense counsel in the presence of the jury. The record reflects that defense counsel, Mr. Petersen, was questioning a witness on direct examination when the following exchange occurred:

THE COURT: Well, let me say this. Mr. Petersen, some of these questions you’re asking are argumentative.
MR. PETERSEN: Yes, sir.
THE COURT: And you can’t argue with your own witness. You can’t—
MR. PETERSEN: Your Honor, he’s a hostile—
THE COURT: Just a minute. Don’t interrupt me. The next time you do that it’s going to cost you. You understand?
MR. PETERSEN: Yes, sir.
THE COURT: Get your foot off the Bench. Stand up there like you know what you’re doing.

The court then instructed defense counsel to avoid argumentative, questions and to move on. Defense counsel continued to question the witness when, without objection from the prosecutor, the court interrupted:

THE COURT: Mr. Petersen, Babu Thomas is not a fingerprint man. Now, you know that.
MR. PETERSEN: That’s why I wondered why he turned fingerprints over to Babu Thomas.
THE COURT: He didn’t turn fingerprints over to Babu Thomas. He turned over a package. Now, get on the ball.
MR. PETERSEN: Now, his testimony on direct, Your Honor—
THE COURT: You’re being misleading.
MR. PETERSEN: —was that they had prints taken from the plastic bag.
THE COURT: Don’t argue with me, sir. MR. PETERSEN: All right.

BY MR. PETERSEN:

Q. Detective Cheaves, did you have the prints lifted off the plastic bag that was turned over to Babu Thomas?
A. No.
Q. You didn’t at all?
A. No.
THE COURT: He’s answered that question.

BY MR. PETERSEN:

Q. Neither did Denny Holerger?
THE COURT: You keep on and I’m going to have to take care of you, sir. Now, he’s answered your question. He’s said no. Don’t have him .repeat it. Now, move.

Defense counsel then moved for a mistrial, which the court denied.

Initially, we point out there are occasions where there is no error in rebuking defense counsel in the presence of the jury. See, Baisden v. State, 203 So.2d 194 (Fla. 4th DCA 1967); Paramore v. State, 229 So.2d 855 (Fla.1969). However, the better practice is to require the retirement of the jury before rebuking counsel. Paramore, supra.

We wholeheartedly agree with the statement made by this .Court in Hunter v. State, 314 So.2d 174, 174-175 (Fla. 4th DCA 1975):

Guiding a trial is a constant challenge to the ability and integrity of the trial judge; it is a task, the difficulty of which is too often taken for granted. Invariably there may be instances where conduct of counsel is such as to try the patience of the court. The trial court must be equal to the task; and should endeavor to avoid the type of comment or remark that might result in inhibiting counsel from giving full representation to his client or that might result in bringing counsel into disfavor before the jury at the expense of the client.

We appreciate the strain under which the trial judge was compelled, by defense counsel’s conduct, to preside over this trial. Nevertheless, we can not condone his manifestation of that strain in the presence of the jury. Our review of the complete record in this case indicates anything but an impartial atmosphere in which the defendant received a fair trial. As was indicated in Hunter, supra, defense counsel’s conduct should not be visited upon the defendant to the extent that his fundamental right to a fair trial is abridged.

Accordingly, appellant’s judgment and sentence are reversed and this cause is remanded for a new trial.

REVERSED and REMANDED.

BERANEK and HURLEY, JJ., concur.


author: PER CURIAM. MOORE, Judge,

text:
    David STUART, Appellant, v. Marilyn K. STUART, Appellee.
    No. 79-243.
    District Court of Appeal of Florida, Fourth District.
    June 18, 1980.
    L. M. Taylor of L. M. Taylor, Lawyers, North Palm Beach, for appellant.

      Valentine Gabaldon, West Palm Beach, for appellee.
   PER CURIAM.

AFFIRMED. See Sheffield v. Sheffield, 310 So.2d 410 (Fla. 3rd DCA 1975), cert. den. 328 So.2d 844 (Fla.1976).

Judge Moore’s dissent suggests that the cause be remanded to determine whether the “changed circumstances” warrant modification. While the trial court’s order indicates “particular reliance upon Sheffield . . .” supra, it also finds that “the Former Husband has failed to establish a substantial change in circumstances. . . .” Obviously, if a spouse receiving alimony enters into an arrangement which involves living with a member of the opposite sex, that is rather clear evidence of a substantial change of circumstances. There will either be financial or in kind contributions of the new partner to be taken into account, or, if the contributions go from the spouse to the new partner, the fact that the spouse is providing board and room to the new partner is evidence that the fair market value of those and any other contributions is some measure of the extent to which periodic alimony is excessive. Evidence in the record indicates that the meretricious relationship is at an end. Apparently the trial court’s determination in this case results from a finding to that effect. Accordingly, our opinion remains unchanged.

HERSEY and GLICKSTEIN, JJ., concur.

MOORE, J., dissents with opinion.

MOORE, Judge,

dissenting:

The parties to this cause were divorced in 1971 by a final judgment incorporating their property settlement agreement. The appellant-husband filed a petition for modification seeking, inter alia, termination of alimony payments because appellee was allegedly living in open and notorious adultery. The denial of appellant’s petition for modification is appealed.

Relying “particularly” on Sheffield v. Sheffield, 310 So.2d 410 (Fla. 3rd DCA 1975), cert. denied 328 So.2d 844 (Fla.1976), the trial court found that appellant had failed to establish a substantial change in circumstances which would justify a modification. I feel the trial court’s reliance on Sheffield is misplaced.

Before the petition for modification was filed the appellee was living with another man and her son in a family relationship. The other man, who moved out of the house when the petition was filed, contributed financially to the household expenses until moving out. The testimony is conflicting with regard to his intentions when this litigation is resolved, but he continues to share appellee’s bed on occasions. Thus, the facts are similar to those in Sheffield.

Although I would prefer to adopt Judge Pearson’s dissenting opinion in Sheffield, one does not need to look beyond the majority opinion which recognizes the authority of the trial judge to modify alimony payments pursuant to change in circumstances or financial ability. Therefore, I would reverse the order denying the petition and remand this cause with directions to determine whether the changed circumstances are sufficient to warrant a modification of alimony payments, Sheffield, supra, notwithstanding.


author: HOBSON, Judge.

text:
    Robert Gardner ELLIS, Appellant, v. Doris Thurman ELLIS, Appellee.
    No. 79-1935.
    District Court of Appeal of Florida, Second District.
    June 18, 1980.

      E. David Tyner of Tyner & Williams, P.A., Dade City, for appellant.
    W. Lowell Bray, Jr. of Allgood, McPherson, Stewart & Bray, New Port Richey, for appellee.
   HOBSON, Judge.

Appellant appeals a final order dismissing his petition to modify a final judgment of dissolution of marriage and to set aside the separation and property settlement agreement incorporated in the final judgment. We reverse.

The separation and property settlement agreement provides, in pertinent part, that:

1) The husband shall pay as alimony one-half of his gross annual income, payments to continue until the death of the wife or of the husband, whichever comes first. The wife’s remarriage does not terminate this obligation;

2) The husband shall pay $700 per month until a certain mortgage is satisfied;

3) The husband shall pay $250 per month support for each of the parties’ minor children;

4) The husband shall convey to the wife his interest in a home in North Carolina and a home in Pasco County, Florida;

5) The husband shall convey to the wife title to a 1978 Oldsmobile automobile;

6) The husband shall maintain at his expense a $52,000 life insurance policy for the remainder of his life without any change in beneficiary;

7) The wife relinquishes any claim to certain parcels of property in Virginia and Georgia.

Six months after the final judgment of dissolution was rendered, the husband filed his petition to modify the final judgment and to set aside the separation and property settlement agreement, alleging that at the time the agreement was executed he was in an extremely depressed and emotionally disturbed state and “unable to utilize the reasoning, understanding and logic which ordinarily would be used by a person of ordinary prudence when dealing with property matters.” The petition further alleged that the wife used the parties’ minor children in such a manner as to “threaten the husband and coerce him into executing the agreement” and that the wife’s conduct constituted overreaching and undue influence on the husband. Moreover, the husband’s obligation to pay the wife one-half of his gross income during her lifetime whether she remarries or not is grossly and outrageously unconscionable and oppressive. ■

The wife filed a motion to dismiss, contending that the husband’s petition failed to allege any defect in the final judgment or in securing the final judgment or any other grounds under Florida Rule of Civil Procedure 1.540(b) which would entitle him to relief under that rule.

After a hearing on the motion, the trial court entered its order granting the wife’s motion to dismiss, which stated:

. . . ROBERT GARDNER ELLIS, is a physician, a person of no less than average intelligence and above average education, who is 54 years old and further was represented by Jay Altman who filed a Response in his behalf and appeared at a temporary relief hearing in his behalf and was represented by Craig Villanti who appeared at the final hearing and it is therefore
ORDERED AND ADJUDGED that the Motion to Dismiss is granted and the Respondent, ROBERT GARDNER ELLIS, shall have twenty (20) days to file an amended petition.

Although the final order appears to grant general leave to amend, the record indicates that the court orally limited its leave to amend solely to matters of future alimony. The portion of the petition relating to the property settlement agreement was, as the judge remarked, “locked in.”

The basic question in this case appears to be whether the petition is sufficient on its face to warrant an evidentiary hearing on the issues. Although the motion to dismiss stated only that the husband’s petition failed to state grounds for relief, and the final order granted the dismissal, there appear both in the transcript of the hearing and in the final order, certain comments which support our opinion that the trial judge based his decision in part on the merits of the allegations which properly should have been brought out and examined by both parties at a full evidentiary hearing. For example, the following portions of the hearing transcript are instructive:

THE COURT: You know, I am going on what is in this file here. And the file tells me that we’ve got a physician—
MR. TYNER: Yes, sir.
THE COURT: —and so physicians are educated people. I don’t know if they are intelligent people, but they are educated people. And the file also tells me that he had a lawyer. Altman filed an answer on October the 24th.
* * Hs * * *
THE COURT: ... Was Altman at the final hearing?
MR. BRAY: No, sir. Mr. Villanti came to the final hearing, but did not really do anything in the way of helping the doctor. The doctor had already told them, as I understand it, at that time that he didn’t want anything done at the final hearing.
THE COURT: Why did Villanti come?
MR. BRAY: Altman asked him to come over.
MR. TYNER: Altman could not be there that day.
* * * * * *
MR. TYNER: Your Honor, it would appear at this point we are getting into the merits of the case or lack of merits of what happened as opposed to the motion to dismiss, a hearing on the motion to dismiss.
******
THE COURT: ... Mr. Tyner, I am going to grant the motion to dismiss, and I see you want a record here,—
MR. TYNER: Yes, sir.
THE COURT: —so I will tell you that I find from an examination of the Court file that the respondent, Dr.—
MR. TYNER: Ellis.
THE COURT: —Ellis is a physician, therefore, a person of not less than average intelligence, and certainly I would think above average intelligence and certainly above average in education.
How old is he?
MR. TYNER: Fifty-four, I believe.
THE COURT: He is no babe in the woods then.
MR. TYNER: No, sir. He has been out of medical school for a while.
THE COURT: Okay. And further that he was represented by counsel, Mr. Altman, Jr.?
MR. BRAY: Yes, sir.
THE COURT: Because the record says that on October 24th, Mr. Altman filed an answer in response to the petition for dissolution, and that the agreement between the parties, which is the subject of this action today, was executed on November 6th, 1978, some two weeks after Altman had filed the answer; so I assume that Altman was, you know, still his attorney at that time.
* * * * * *
MR. TYNER: ... He did have an attorney initially. He did not prior to the entry of the final judgment.
♦ s{: sfc * * sjt
THE COURT: —all that I have in front of me. The record says that an attorney filed an answer, and that an attorney appeared at the final hearing, therefore I can only assume that between those two periods of time he had legal representation.
* * * * * *
THE COURT: I think it was Holmes, wasn’t it, who said there was no law against entering into a dumb contract?
* * * * * *
THE COURT: You see how dumb this is?
MR. TYNER: Absolutely.
THE COURT: I know you do, and I think you do, too. When you are talking about gross income, a practitioner, and we all know, you know; every year I know I used to figure my overhead percent, you know, and if it got about 33 percent to run that office, I was not happy. I’d like it down about 20, of course, but could never get there either. But under this provision of gross income, he can get to a point where his expense can be say 52 percent, and so he’s got to give her all the rest, and he ends up with zilch.
MR. BRAY: Judge,—
THE COURT: That is dumb. .1 don’t know if it is unconscionable; it is dumb.
* * * * * *
THE COURT: Well, what do you think of this? I think there is a little bit of right on both sides; I mean as far as modifying it is concerned.

The allegations of the petition were sufficient to require an evidentiary hearing on the issues. It was error for the trial judge to set forth findings of fact which could not be fully explained from the pleadings. Accordingly, we reverse the final order of dismissal and remand this cause to the trial court for an evidentiary hearing concerning matters raised in the petition.

REVERSED and REMANDED.

GRIMES, C. J., and DANAHY, J., concur.


author: SHARP, Judge.

text:
    Frances L. ROBERTSON, Personal Representative of the Estate of Robert R. Robertson, Appellant, v. FLORIDA ROCK AND TANK LINES, INC., et al., Appellees.
    No. 80-403.
    District Court of Appeal of Florida, Fifth District.
    June 18, 1980.

      Rodney B. Blankenship, of Troutman, Parrish & Williams, P.A., Winter Park, for appellant.
    Jack E. Thompson, of George & Thompson, Miami, and Robert E. Austin, Jr., of Austin & Burleigh, P.A., Leesburg, for ap-pellees.
   ON MOTION TO DISMISS APPEAL

SHARP, Judge.

The plaintiff, Frances L. Robertson, appeals the final judgment of the trial court dismissing those counts of the complaint which sought to establish punitive damages against the defendant. Still remaining for trial are counts relating to compensatory damages. The defendants move to dismiss the appeal because the judgment is not a final order reviewable under Rule 9.030(b)(1)(A), Florida Rules of Appellate Procedure. We agree and accordingly dismiss this appeal.

This court lacks jurisdiction to review interlocutory orders unless the order sought to be appealed falls within one of the categories listed in Florida Rules of Appellate Procedure 9.130(a)(3). Denial of punitive damages prior to trial of the compensatory damage counts is not an appeala-ble interlocutory matter under this Rule.

The plaintiff relies upon Mendez v. West Flagler Family Association, Inc., 303 So.2d 1 (Fla.1974). The Florida Supreme Court held that the trial court’s granting of a final summary judgment against the plaintiff on counts alleging fraud was ap-pealable as a “final order” even though left for trial were counts relating to a breach of contract. The court noted its policy against “piece-meal appeals” but allowed the appeal in this instance because the fraud and contract claims were separate and distinct causes of action. In this case the claim for compensatory and punitive damages are legally interrelated and involve the same transaction. An action for punitive damages cannot be maintained independently of an action for compensatory damages. American Motorcycle Institute, Inc. v. Mitchell, 380 So.2d 452 (Fla. 5th DCA 1980). We do not have jurisdiction to consider this appeal. Kingsland v. National Advertising Co., 384 So.2d 701 (Fla. 5th DCA 1980).

DISMISSED.

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


author: LARRY G. SMITH, Judge.

text:
    Joseph E. FOLSOM, Appellant, v. Lamar BEAUCHAMP and Bell Dryer, Inc., et al., Appellees.
    No. PP-180.
    District Court of Appeal of Florida, First District.
    June 19, 1980.
    Winston W. Jacobo, Live Oak, for appellant.
    Jim Smith, Atty. Gen., A. S. Johnston, Asst. Atty. Gen., for appellees.
   LARRY G. SMITH, Judge.

Joseph E. Folsom appeals an order of the circuit court finding him guilty of indirect criminal contempt growing out of his conversations with two prospective jurors. Appellant bases his appeal upon the contention that the evidence is insufficient to establish his guilt. We find the evidence was sufficient, and affirm.

Two prospective jurors, Willie Joe Land and Jerry Metzger, were summoned to appear for a term during which a civil case involving appellant was scheduled for trial. Appellant’s conversations with Land and Metzger occurred after service of the jury summons upon each of them, but before their appearance for jury duty.

Willie Joe Land testified that appellant approached him at the Sweetwater Bar, and asked him to accompany him outside the building. Appellant then asked Land what his chances of serving on the jury were, and Land answered that he didn’t know. Land described the conversation that then occurred as follows: “Well, all he asked me, he asked did I know what the case was about. I said: ‘No, I don’t know what is going on,’ you know, and he said, well, it was about him, and if there was anything I could do, he would appreciate it. That’s all that was said.” This conversation was terminated when a third person came into the presence of appellant and Land.

Jerry Metzger testified that on his way home he saw appellant in the parking lot of the Sweetwater Bar and stopped. He initiated a conversation with appellant concerning his possible jury service, and in his testimony he described the conversation as follows: “I asked Joe, I says: ‘Now, if I go there on jury duty and go against you, is it going to hurt our friendship?’ And Joe says: ‘As long as you do just what you feel is right, I won’t hold anything against you,’ and that is the essence of the conversation that we had, and I found Joe to ask him that question.” Metzger also testified: “Now, I believe I said: ‘Joe, has this got to do with when you lost some cattle?’ And he said: ‘Yeah,’ or something along that, and I said: ‘Well, I don’t want to hear anymore about it.’ ” In response to the question whether appellant tried to tell him anything more about it, Metzger replied that appellant “was going to say something,” but Metzger did not allow it. The conversation ended with Metzger’s statement to appellant that if he was selected for jury duty, he would do what he thought was right.

In Baumgartner v. Joughin, 105 Fla. 335, 141 So. 185 (1932), the court discussed the circumstances under which contact with jurors may be regarded as a contempt of court, and gave a clear, though perhaps not all-inclusive, summary of the nature of acts which may be held contemptuous. After emphasizing the importance of the jury in the American judicial systems, the court stated:

Therefore, whatever tends to obstruct the due administration of justice in the courts, by bringing undue influences or temptations or corruption to bear upon those who are likely to be selected for duty on juries, is an act calculated to obstruct the fair and impartial trial of jury cases in the courts, and as such, is a direct obstruction to the proper administration of justice which is punishable as a contempt.
Tampering with a member of a general jury panel, or with members of a jury panel selected to try a case or with prospective jurors before they are sworn, is universally regarded as a contempt of court to the same extent as tampering with jurors actually sitting in the trial of a case. And it is also generally considered that the act of influencing or corrupting a juror, or attempting the same, need not be committed in the presence of the court, in order to make it punishable as a contempt. . . . (citations omitted)
jj« * * * sk
Approaching a juror to find out how he stands with reference to a case, or sounding out a juror to ascertain whether he can be corruptly influenced, or any attempt to influence the results of jury trials by improper means, or acts which have a tendency to enable a person to make certain the result of a litigated case involving a trial by jury, are justly regarded as acts tending to interfere with the due administration of justice, and are punishable as contempts. The inherent nature and tendency of such practices is justly regarded as evil, being viewed as an infringement upon the equilibrium of mind and independence of judgment of those jurors who are likely to be called upon to become triers of fact, and who, outside of their own conscience, are answerable to no one for errors in their decisions.

In Baumgartner, the contemnor approached a prospective juror and by way of opening a conversation, remarked that he knew a certain defendant who was on trial for murder, stating that he was not a “bad boy,” and then asked the juror if he would be “interested in a proposition.” Of course, the facts in this case differ from those in Baumgartner, but it is clear from the discussion and the authorities relied upon by the court in Baumgartner, that the actions of appellant with respect to juror Land were well within the category of actions regarded as contemptuous. Appellant sought out juror Land, invited him out to participate in a private conversation, and by stating to Land that if there was anything he (Land) could do, appellant would appreciate it, was guilty of “sounding out” the juror, and of attempting to influence the result of the forthcoming jury trial. Whether appellant’s conduct could have had the intended effect upon the particular jur- or is immaterial, so long as it is the type of conduct which would ordinarily be viewed as having a tendency to obstruct the fair and impartial trial of jury eases. To constitute contempt of court, it is not necessary that the act accomplish its purpose. 11 Fla.Jur.2d, Contempt, § 16.

In Sloan v. Brown, 114 Fla. 739, 154 So. 514 (1934), a sentence for contempt was upheld where the contemnor approached a grand juror and asked him to look out for him, and requested the grand juror to look out for his interests if any violation of gambling laws involving him was investigated by the grand jury. A contempt sentence was upheld in State v. Clark, 46 So.2d 488, (Fla.1950), against a special investigator employed by attorneys for the defendant (who was a white man charged with the murder of a black man), called upon a number of prospective jurors and inquired, in substance, if they could give the defendant a fair break; how they would vote on the basis of circumstantial evidence; whether they were born in the south and how they felt about blacks in general. A suggestion was made to one juror, who acknowledged her acquaintance with one of the defense attorneys, that she should not mention that fact. In Strawder v. State, 170 So.2d 327 (Fla. 2nd DCA 1964), a conviction of contempt was upheld against one who approached the father of a juror, and requested that he talk with him. The contemnor then returned to the father’s home the following day and stated: “I would like to know just how your son felt about it.”

Because we find the conviction of contempt fully sustained by the evidence of appellant’s conversation with juror Land, we find it unnecessary to determine whether appellant’s conversation with juror Metz-ger, standing alone, would be sufficient to constitute contempt of court. In passing, however, it should be observed that Metz-ger exhibited the utmost in poor judgment in initiating a conversation with appellant regarding Metzger’s jury duty. Any juror who undertakes to discuss with a party any aspect of litigation in which the juror may be called to serve is flirting with a contempt citation. A juror who is selected on a case is bound by his oath to render a fair and impartial verdict, and whether or not his verdict may engender favorable or unfavorable reactions from one party or the other is totally immaterial. It is unthinkable that a prospective juror would subject his own integrity to question by contacting a litigant or any other person involved in a case in which he might be selected as a juror. Indeed, a juror who initiates such a contact, is no less likely to bring the administration of justice into disrepute than when such contact is initiated by a party or any other person. As noted in Baumgartner, jurors who talk with parties about causes to be tried and thereby form an opinion of the merits of the case have been held guilty of contempt of court for so doing. It goes without saying that one whose confidence in his own ability to judge fairly and impartially is so shaky as to require assurances of any kind from a party to the cause is not qualified to sit as a juror in the case. By the same token, it seems equally clear that a party who gives any solicited or unsolicited assurances to a juror in order to induce that juror not to disqualify himself in the case could be guilty of interfering with the proper administration of justice, and be held in contempt.

Appellant’s argument for reversal relies heavily upon the decision of this court in Davis v. State, 261 So.2d 188 (Fla. 1st DCA 1972). However, we find that our decision in that case is distinguishable upon the fact that in Davis, there was no direct contact by the alleged contemnor with prospective jurors, whereas in this case there was direct contact by appellant with known prospective jurors. Appellant also brings to our attention what appears to be a drafting error in the order of the court under review. The court found that appellant asked Mr. Land “if he could help him out.” The record shows that the words actually used by appellant to Mr. Land were, according to Mr. Land, “if there was anything I could do, he would appreciate it.” The plain meaning or import of the words actually used is substantially the same as the court’s finding, and we conclude that this error has no bearing upon the merits of the trial court’s decision.

For the reasons stated, the order, judgment and sentence are AFFIRMED.

MILLS, C. J., and SHIVERS, J., concur.


text:
    Virgil Q. MAYO et al., Appellants, v. Eva OWENS et al., Appellees.
    No. MM-384.
    District Court of Appeal of Florida, First District.
    June 23, 1980.
    H. Guy Green, Marianna, for appellants.
    Frank A. Baker, Blountstown, for appel-lees.
   PER CURIAM.

This is a second appeal from the same case below, the first having been determined by our opinion in Mayo v. Owens, 367 So.2d 1054 (Fla. 1st DCA 1979). The previous appeal was from a summary final judgment for plaintiffs/appellees as to Counts I and X of the complaint. Before our aforesaid opinion which reversed the final summary judgment was filed on February 1, 1979, the learned trial judge entered a summary final judgment as to Counts II through IX and Count XI of the complaint, making the same ruling as to Counts II through IX and XI that he had previously made as to Counts I and X. This appeal has been taken from the second summary final judgment in the case and it involves the same questions which this Court ruled upon in its opinion in the prior appeal. Appellees, simply contend here that we should recede from our previous opinion which we decline to do.

REVERSED and REMANDED for further proceedings consistent with Mayo v. Owens, supra.

McCORD, LARRY G. SMITH and SHIVERS, JJ., concur.


author: BOOTH, Judge.

text:
    Livingston B. SHEPPARD, D.D.S., Petitioner, v. BOARD OF DENTISTRY, Respondent.
    No. SS-51.
    District Court of Appeal of Florida, First District.
    June 23, 1980.
    Rehearing Denied July 18, 1980.

      Thomas V. Infantino, Winter Park, for petitioner.
    Thomas J. Guilday, of Akerman, Senter-fitt & Eidson, Tallahassee, for respondent.
   BOOTH, Judge.

This cause is before us on petition for review of the order of the hearing officer denying motion to dismiss a license revocation proceeding due to failure of the Board of Dentistry to comply with Florida Statutes § 120.60(5), which provides:

No revocation, suspension, annulment, or withdrawal of any license is lawful unless, prior to the institution of agency proceedings, the agency has given reasonable notice by certified mail or actual service to the licensee of facts or conduct which warrant the intended action and the licensee has been given an opportunity to show that he has complied with all lawful requirements for the retention of the license.

Under the foregoing statute, the agency must give notice, as specified, to the licensee on the “facts or conduct which warrant the intended action” and the licensee given opportunity to reply.

In the instant case, the facts as shown by the record here are that the administrative complaint was filed July 25, 1978, seeking to suspend or revoke petitioner’s dental license. The filing of the complaint constitutes “the institution of agency proceedings” under the statute. It is conceded that no notice was given petitioner prior to the filing of the complaint.

In September of 1978, petitioner answered and filed his first motion to dismiss on several grounds, but not including failure to comply with § 120.60(5). The first motion to dismiss was denied, and hearing was scheduled but subsequently, on motion of both sides, continued. Pre-trial hearing was subsequently scheduled for September 17, 1979. On August 28, 1979, petitioner filed his second motion to dismiss, raising for the first time failure to comply with § 120.60(5). The hearing officer initially stated at the time of the oral argument that the motion to dismiss would be granted, but on reconsideration entered an order allowing respondent to comply with § 120.-60(5), within 30 days. Thereafter, respondent Board made a belated attempt to comply with the statute by serving petitioner with actual notice and providing an opportunity to be heard at a pre-hearing conference.

The order sought to be reviewed correctly states the purpose of the statute, to-wit:

The foregoing statute provides a licensee an opportunity to learn of the reason for any intended action by the agency and to thereupon promptly clear his record, before a formal accusation is filed, by showing to the agency or its designee that he has in fact complied with all lawful requirements for the retention of his license. This statute does not contemplate a hearing before the agency, but an opportunity to show compliance at an informal conference with the agency or a representative of the agency, which may be its Executive Director or any other designee who may be designated at any time by the agency to conduct such conferences. The statute does not require that the agency meet formally to designate a person as its representative. A licensee must be given reasonable notice of the facts or conduct which warrant intended action and must also be given reasonable notice of a time, date and place to appear.

Actual appearance by licensee is not required so long as opportunity is afforded for such appearance.

The clear intent and purpose in requiring notice prior to filing a license revocation complaint is to allow a prompt repudiation by the licensee which could reveal, for example, mistakes in the identification of the licensee, misinformation or fictitious claims, rendering the complaint ill-founded. Although such matters would normally be revealed in the agency’s investigation prior to filing the complaint, the pre-filing notification of the licensee is an additional safeguard provided by the Legislature. The harm resulting to the holder of a professional license due to the filing of an ill-founded complaint can be irreparable and far outweigh any inconvenience or time lost by meeting the pre-filing requirements of the statute. It is not intended that this informal reply be a substitute for hearing allowed under Chapter 120 on the merits of the charges. Notification and reply under § 120.60(5) supplements the agency’s own investigation. Compliance is a prerequisite to the filing of the administrative complaint.

A complaint filed in a license revocation proceeding without compliance with the notice requirements of § 120.60(5) is subject to immediate dismissal on a motion of the licensee. Florida Real Estate Commission v. Frost, 373 So.2d 939 (Fla. 4th DCA 1979). However, in the instant case, the licensee failed to promptly assert failure to comply with § 120.60(5) and instead chose to move for dismissal on other grounds and to file an answer to the complaint. More than a year passed before the failure to comply with that statute was raised. The licensee has received, and answered, the administrative complaint and participated in discovery proceedings with respect thereto. He is informed as to the nature of the proceedings and has had opportunity to reply. We note, however, that the belated notice and hearing procedure ordered below is not a substitute for compliance with § 120.60(5) and will not defeat the licensee’s right to dismissal of the complaint if noncompliance is properly and promptly asserted. Here, there is no showing of prejudice to the licensee for failure to comply with § 120.60(5) and no prompt assertion of noncompliance as a basis for dismissal.

Accordingly, the order below is AFFIRMED and the cause REMANDED for further proceedings.

MILLS, C. J., and ROBERT P. SMITH, Jr., J., concur.

      . Florida Statutes (1978). Subsection now renumbered § 120.60(6).


author: MILLS, Chief Judge.

text:
    Clarence Alvan WOOTEN, Appellant, v. STATE of Florida, Appellee.
    No. SS-155.
    District Court of Appeal of Florida, First District.
    June 24, 1980.
    Joseph S. Farley, Jr. of Mahon, Mahon & Farley, Jacksonville, for appellant.
    Jim Smith, Atty. Gen., Carolyn M. Snur-kowski, Asst. Atty. Gen., for appellee.
   MILLS, Chief Judge.

The trial court denied Wooten’s motion to suppress on the grounds that the police officers had probable cause to make the arrest and a warrant was not required, thus, the search incident to the arrest was proper and the fruits of the search need not be suppressed. Wooten challenges this determination and we affirm.

The relevant facts are that a confidential informant called the police station and told Detective Clayton that Wooten would be at the courthouse that morning, that he would be back at his place of business around noon, and that he would have heroin and cocaine hidden in his crotch. Clayton had successfully used information from the informant before and had heard “street talk” that Wooten was dealing in drugs. Around noon the informant called back and told the officer taking the call that Wooten was at his place of business and had drugs on him. He described Wooten’s clothing and his car which would be parked nearby. The information was relayed to Clayton who with the aid of other officers went to the described location, saw Wooten who was dressed as they had been told, arrested him for possession of a controlled substance, and searched him. The search revealed two leather pouches of heroin and cocaine secreted in the crotch of his pants.

In his motion to suppress, Wooten contended that the contraband seized should be suppressed because the search was executed without warrant, was not incident to a lawful arrest, and was without probable cause. In his accompanying memorandum of law and in his brief before this Court, he focused on the lawfulness of the arrest and on probable cause:

“Where a person suspected of criminal conduct is arrested without a warrant, the constitutional validity of a subsequent search of his person or premises must depend upon the constitutional validity of the arrest, and whether that arrest was constitutionally valid depends, in turn, upon whether, at the moment the arrest was made, the officers had probable cause to make it . . .” 9 Fla. Jur., Criminal Law, § 178 [See also 15 Fla.Jur.2d, Criminal Law, § 510.]

In State v. Adams, 355 So.2d 194 (Fla. 1st DCA 1978), cert. denied, Fla., 359 So.2d 1220, this Court, in reviewing the sufficiency of an affidavit for a warrant, held that probable cause must be supported by sufficient underlying facts to allow the judge to determine that the hearsay information is reliable and the informant is credible. Wooten does not contest the credibility of the informant and the officers’ reasonable reliance on him, but raises the single narrow question of whether the information given was proven to be reliable. Since the officers did not know how the informant procured the information — whether it was from personal knowledge or hearsay — they could not make an independent judgment as to its reliability.

In considering this contention, we must return to the basic test for the lawfulness of an arrest set forth by the United States Supreme Court in Ker v. California, 374 U.S. 23, 83 S.Ct. 1623, 10 L.Ed.2d 726 (1963). It is whether the facts and circumstances within the officers' knowledge and of which they had reasonably trustworthy information are sufficient in themselves to warrant a man of reasonable caution in the belief that an offense has been or is being committed. Applying that test, we concur with the trial judge’s conclusion that there was probable cause and the arrest was legal. Although there was no direct testimony concerning the source of the informant’s information and the officer who took the second call admitted that he could not remember if the informant had said that he had seen the defendant dealing in drugs that day, we think the record supports the conclusion of the trial judge that “a fair and common sense reading of the testimony indicates that the informant clearly had personal knowledge of the defendant’s possession of drugs.” Additionally, the officers were able to corroborate the other information provided concerning the time, place, car, and clothing. Draper v. United States, 358 U.S. 307, 79 S.Ct. 329, 3 L.Ed.2d 327 (1959).

Accordingly, we affirm the trial judge’s denial of the motion to suppress. Wooten having entered a plea of nolo contendere with reservation of the right to appeal this question and the question having been determined adversely to him, his judgments and sentences are AFFIRMED.

SHIVERS, J., and WOODIE A. LILES (RET.), Associate Judge, concur.


text:
    Teodula Paz SALOMON, Ramon Salomon and Juan Jacinto Rato, Appellants, v. The STATE of Florida, Appellee.
    Nos. 77-1404, 77-1405 and 77-1791.
    District Court of Appeal of Florida, Third District.
    June 24, 1980.
    Rehearing Denied July 18, 1980.
    Engel, Aronson, Fried & Cohn and Don S. Cohn; Mark R. Baer, Miami, for appellants.
    Jim Smith, Atty. Gen., and Paul Mendel-son, Asst. Atty. Gen., for appellee.
    Before HENDRY, SCHWARTZ and DANIEL S. PEARSON, JJ.
   SCHWARTZ, Judge.

These cases recur for consideration by this court pursuant to the order of transfer in Salomon v. State, 381 So.2d 705 (Fla.1980). The appellants’ primary contentions concern the alleged invalidity of wiretap intercept orders which resulted in the monitoring of their lottery activities. See the related case of Cuba v. State, 362 So.2d 29 (Fla. 3d DCA 1978), cert. denied, 378 So.2d 344, 347 (Fla.1979). We are powerless to consider these arguments, however, because the record contains neither the orders in question nor the applications and affidavits which supported their issuance. Applegate v. Barnett Bank of Tallahassee, 377 So.2d 1150 (Fla.1979); O’Steen v. State, 92 Fla. 1062, 111 So. 725 (1926). Although the documents relating to an earlier wiretap order which supposedly initiated the entire investigation are before us, there is no showing either that the results of the interceptions authorized by that order, which did not themselves involve the present defendants, were related to the later ones which did, or even that the appellants have standing to challenge the initial order. See United States v. Scasino, 513 F.2d 47 (5th Cir. 1975). So far as we know from the only source we may consider, the record, the earlier tap was totally irrelevant to the appellants’ ease.

We have carefully considered the appellants’ remaining points and find no error. The judgments below are therefore

Affirmed.

      . Despite their extensive efforts during a period of more than two years since the notices of appeal were filed, the appellants have been unable to secure and supplement the record with these documents. There is therefore no purpose to be served by granting their request for still further time to attempt to do so. While these appeals are governed by the 1962 Revision of the Florida Appellate Rules, even Fla.R. App.P. 9.200(f)(2), which requires giving “an opportunity to supplement the record,” has already been more than satisfied.


text:
    Carver W. TAYLOR, Appellant, v. The STATE of Florida, Appellee.
    No. 77-2019.
    District Court of Appeal of Florida, Third District.
    June 24, 1980.
    Rehearing Denied July 21, 1980.
    Bennett H. Brummer, Public Defender and Peter Raben, Asst. Public Defender, for appellant.
    Jim Smith, Atty. Gen. and Susan Minor, Asst. Atty. Gen., for appellee.
    Before HENDRY, NESBITT and BAS-KIN, JJ.
   PER CURIAM.

Appellant was convicted of aggravated assault and aggravated battery. He challenges the validity of his convictions on the ground that they were the product of jury reinstructions given in the absence of appellant, and without notice to his attorney. We agree that those omissions of the trial court constitute reversible error.

Procedure for jury reinstruction is governed by Fla.R.Crim.P. 3.410:

After the jurors have retired to consider their verdict, if they request additional instructions or to have any testimony read to them they shall be conducted into the courtroom by the officer who has them in charge and the court may give them such additional instructions or may order such testimony read to them. Such instructions shall be given and such testimony read only after notice to the prosecuting attorney and to counsel for the defendant.

Moreover, “[i]n all prosecutions for crime the defendant shall be present At all proceedings before the court when the jury is present.” Fla.R.Crim.P. 3.180(a)(5).

The requirement of notice to counsel was intended to secure the full performance of their duties during trial, including both the rendering of advice to the court, and the making of timely objection to error. The right of a defender to be present at his trial is basic to our jurisprudence, and serves to ensure propriety, and the appearance thereof.

To best effectuate these considerations, the Florida Supreme Court has ruled that contravention of the aforementioned requirements is prejudicial error per se. Ivory v. State, 351 So.2d 26 (Fla.1977).

Appellee’s argument relating to waiver is not substantiated in the record. We therefore do not consider when, and if, compliance with the rules may be waived, or under what circumstances the deviation therefrom may be ratified.

We reverse for new trial.

Reversed.


text:
    Leroy BRADLEY, Appellant, v. The STATE of Florida, Appellee.
    No. 78-1176.
    District Court of Appeal of Florida, Third District.
    June 24, 1980.
    Bennett H. Brummer, Public Defender, and Clark D. Mervis, Asst. Public Defender, for appellant.
    Jim Smith, Atty. Gen., and James H. Greason, Asst. Atty. Gen., for appellee.
    Before HENDRY, NESBITT and PEARSON, DANIEL, JJ.
   PER CURIAM.

Affirmed. § 924.33, Florida Statutes (1979); Fields v. State, 379 So.2d 408, 410 (Fla. 3d DCA 1980); Taylor v. State, 289 So.2d 421, 423 (Fla. 3d DCA 1974).


text:
    Irwin N. PASKOW and Joan B. Paskow, his wife, Appellants, v. Leo MARTIN and Gloria Martin, his wife, Appellees.
    No. 79-769.
    District Court of Appeal of Florida, Third District.
    June 24, 1980.
    Rehearing Denied July 18, 1980.
    Bartel & Shuford and Bill Shuford, Jr., Miami, for appellants.
    Horton, Perse & Ginsberg and Edward A. Perse, Miami, Smith, Mandler, Smith, Wer-ner, Jacobowitz & Fried, Miami Beach, for appellees.
    Before HENDRY, HUBBART and BAS-KIN, JJ.
   PER CURIAM.

The final judgment under review, which was entered by the trial court upon remand after our prior decision in Martin v. Paskow, 339 So.2d 266 (Fla. 3d DCA 1976), is affirmed based on the rules of law stated in Shaw v. Shaw, 334 So.2d 13, 16 (Fla.1976); Cuna Mutual Insurance Society v. Adamides, 334 So.2d 75, 76 (Fla. 3d DCA 1976); Delalio v. Food Palace, Inc., 330 So.2d 835, 836-837 (Fla. 3d DCA 1976).