text:
    CANRON CORPORATION, a foreign corporation, d/b/a Tamper, Appellant, v. Thelma HOLT, as personal representative of the Estate of Melvin E. Holt, deceased, for the use and benefit of Thelma Holt, surviving spouse, Melvin E. Holt, II, a minor, and Alejandro Brown, a minor, surviving sons, Appellees.
    No. AT-182.
    District Court of Appeal of Florida, First District.
    Jan. 24, 1984.
    William E. Kuntz and E. Lanny Russell of Smith & Hulsey, Jacksonville, for appellant.
    Joel D. Eaton of Podhurst, Orseck, Parks, Josefsberg, Eaton, Meadow & Olin, P.A., Miami, and Beckman & McAliley, P.A., Jacksonville, for appellees.
    Joseph P. Milton of Howell, Liles, Braddock & Milton, Jacksonville, for amicus curiae Seaboard Coast Line R. Co.
   PER CURIAM.

This appeal is brought by the defendant in a products liability action from an order of the trial court determining that it had personal jurisdiction over defendant. We affirm.

At the hearing held on the motion for summary judgment the evidence showed that Canron Corporation (Canron) is a New York corporation with its principal place of business in South Carolina. It is not registered to conduct business in Florida and has no telephones, offices, property, or bank accounts in Florida. However, it regularly solicits business in Florida through direct mail and by sending its sales persons to visit Florida customers. It has an employee who resides in St. Augustine, Florida, whose function is to service equipment sold to its Florida customers. An affidavit filed by co-defendants/amicus curiae, Seaboard System Railroad, Inc., avers that since 1968 Canron has been dealing with Seaboard System Railroad, Inc., and its predecessors in Jacksonville for the purpose of soliciting sales of various railroad-related machinery manufactured by Can-ron. During that time, Seaboard purchased production tampers, ballast regulators, and undercutters, as well as the trac-gopher involved in the accident out of which this suit arises. The affidavit also listed a number of Canron employees with whqm the affiant had dealt over the course of the years and revealed that Canron customarily sends a representative to Florida to train purchasers in the use of equipment that it has sold. Over the years Canron has conducted a number of training sessions in Florida unrelated to any delivery of its products.

While the fatal accident occurred in Georgia, the purchase order for the trac-gopher came from the Jacksonville offices of Seaboard System Railroad, Inc., and the machine was shipped to Seaboard’s Tampa facility, at F.O.B. Canron’s South Carolina plant.

Canron takes the position that the evidence below was insufficient to show that it is “doing business” in Florida under section 48.193(l)(a), Florida Statutes (1981), and if it was “doing business” in Florida the evidence was insufficient to show that appellee’s cause of action “arose from” such activity.

As to Canron’s first contention, there was sufficient evidence for the trial court to find that Canron was “doing business” in Florida within the meaning of the statute; Cf. Sanchez v. Laribee Machine Company, Inc., 409 So.2d 1064 (Fla. 3rd DCA 1981).

The evidence demonstrates that among Canron’s business activities in the State of Florida was the sale and delivery of the trac-gopher involved in the instant case. There was, therefore, sufficient “connexity” between Canron’s business activities in Florida and the cause of action. See, Kravitz v. Gebrueder Pletscher Druckgusswaremfabrik, 442 So.2d 985 (Fla. 3rd DCA 1983); Shoei Safety Helment Corp. v. Conlee, 409 So.2d 39 (Fla. 4th DCA 1981), dismissed, 421 So.2d 518 (Fla.1982); Lacy v. Force V Corp., 403 So.2d 1050 (Fla. 1st DCA 1981).

The order appealed from is AFFIRMED.

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


source: Caselaw Access Project

author: MILLS, Judge.

license: Public Domain

text:
    Cleveland MERRIWEATHER, Appellant, v. STATE of Florida, Appellee.
    No. AT-265.
    District Court of Appeal of Florida, First District.
    Jan. 24, 1984.

      Michael Allen, Public Defender, Paula S. Saunders, Asst. Public Defender, for appellant.
    Jim Smith, Atty. Gen., Barbara Ann Butler, Asst. Atty. Gen., for appellee.
   MILLS, Judge.

We have reviewed the record in this case which is before us pursuant to Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), and have found no reversible error.

AFFIRMED.

WENTWORTH, J., and McCORD, Guyte P., Jr., (Ret.), Associate Judge, concur.


text:
    Hazel W. MacDONALD, Appellant, v. William Allen MacDONALD, Appellee.
    No. AV-6.
    District Court of Appeal of Florida, First District.
    Jan. 24, 1984.
    Joseph M. Ripley, Jr., P.A., Jacksonville, for appellant.
    Michael Basford of Basford & Basford, P.A., Jacksonville, for appellee.
   McCORD, GUYTE P., Jr. (Retired), Associate Judge.

By this appeal the wife in this dissolution of marriage action contends that the trial court improperly granted her spouse’s motion for change of venue. We agree and reverse.

The facts to this appeal are undisputed. This dissolution action was commenced on July 6, 1983, when the wife filed a petition for dissolution of marriage in the Duval County Circuit Court. Some five days later, the husband filed his answer and subsequently moved the case be set for trial. Subsequently, on July 25, the wife moved the lower court to grant her leave to amend her petition for dissolution. This motion was granted, and she then filed an amended petition which differs from the original petition in only one respect, the relief requested: the initial petition asks that the parties’ real property be equitably distributed,- while the amended petition requests that the marital home be awarded as lump sum alimony.

Several days after the trial court orally granted the motion to amend (a written order was subsequently entered), the husband for the first time moved to dismiss or transfer the cause due to improper venue. He alleged that the parties were both residents of St. Johns County, that the cause of action accrued in St. Johns County because that is where the marriage became irretrievably broken, and that the parties own a home in St. Johns County that is part of the litigation in this cause. He also filed a counter-petition seeking partition of the parties’ real property. The trial court granted his motion, and this appeal ensued.

It has long been held that the failure to raise improper venue prior to or contemporaneously with the answer results in a waiver of that privilege. Fla.R.Civ.P. 1.140(h); Aquaco, Inc. v. Hopkin, 323 So.2d 678 (Fla. 3d DCA 1975). Here, however, the husband contends that the wife’s amended petition, in particular her request for an award of the marital home as lump sum alimony, so substantially changes the cause of action as to revive his privilege to object to venue. We cannot agree.

A motion directed to an amended pleading cannot raise objections to retained portions of an original pleading when such objections were available and not urged or unsuccessfully urged on motion to the original pleading.

Beach Development Corporation v. Stimson, 159 So.2d 113, 115 (Fla. 2d DCA 1963), cited approvingly in County of Volusia v. Atlantic International Investment Corporation, 394 So.2d 477, 478 (Fla. 1st DCA 1981). Here, the objections advanced by the husband were available to him at the time his original answer was filed, and nothing in the amended petition fundamentally alters his position, in particular his defenses, vis-a-vis his spouse. Therefore, since the cause of action remains essentially the same, i.e., an action for dissolution of marriage, we reverse the trial court’s interlocutory order and remand this cause for further proceedings consistent with this opinion.

MILLS and WENTWORTH, JJ., concur.


text:
    Murry P. McCUTCHEON, Appellant, v. STATE of Florida, Appellee.
    No. AW-58.
    District Court of Appeal of Florida, First District.
    Jan. 24, 1984.

      Murry P. McCutcheon, pro se.
    No Appearance for appellee.
   MILLS, Judge.

This is an appeal from the trial court’s summary denial of a motion for postconviction relief made pursuant to Rule 3.850, Florida Rules of Criminal Procedure. We affirm.

In 1974, McCutcheon pled guilty to the rape of his eleven-year-old daughter in return for the State’s recommended sentence of life imprisonment. The trial court accepted the plea and sentenced him in accordance with the State’s recommendation.

By way of a Rule 3.850 motion, he subsequently attacked the plea and sentence, contending that he was under the influence of psychotropic drugs when he tendered the plea, that he was denied effective assistance of counsel, that the trial court erred in sentencing him to life imprisonment, and that the trial court found that he was competent to stand trial and that he was competent at the time of the offense based upon the recommendation of only one psychiatrist. The trial court denied the motion without a hearing.

The record conclusively shows that the first three of these contentions are without merit. At the plea taking and sentencing hearing, McCutcheon stated that he was in full possession of his faculties even though he was under the influence of tranquilizers. He also stated that he was satisfied with his attorney. Finally, he stated that he was aware that the State had recommended a sentence of life imprisonment and that such a recommendation was acceptable to him.

Concerning whether the trial court erred in failing to appoint two experts to determine his mental competency, McCut-eheon seems to be complaining of a violation of Rules 3.210 and 3.216, Florida Rules of Criminal Procedure. These are rights which McCutcheon waived by pleading guilty.

AFFIRMED.

WENTWORTH, J., and McCORD, GUYTE P., Jr., (Ret.), Associate Judge, concur.


author: PER CURIAM.

text:
    Kerry FRANCOIS, Appellant, v. The STATE of Florida, Appellee.
    No. 79-2068.
    District Court of Appeal of Florida, Third District.
    Jan. 24, 1984.
    Bennett H. Brummer, Public Defender, and Robin H. Greene, Asst. Public Defender, for appellant.

      Jim Smith, Atty. Gen., and Penny H. Brill, Asst. Atty. Gen., for appellee.
    Before BARKDULL, NESBITT and FERGUSON, JJ.
   PER CURIAM.

Affirmed. Schneble v. Florida, 405 U.S. 427, 92 S.Ct. 1056, 31 L.Ed.2d 340 (1972).


text:
    Julio A. VALDES, Appellant, v. The STATE of Florida, Appellee.
    No. 82-1241.
    District Court of Appeal of Florida, Third District.
    Jan. 24, 1984.
    Bennett H. Brummer, Public Defender and Rory S. Stein, Asst. Public Defender, for appellant.
    Jim Smith, Atty. Gen. and Calianne P. Lantz, Asst. Atty. Gen., for appellee.
    Before HUBBART, NESBITT and DANIEL S. PEARSON, JJ.
   PER CURIAM.

Affirmed. State v. Williams, 444 So.2d 13 (Fla.1984).


text:
    Jose Luis AMAYA-CARRIS, Appellant, v. The STATE of Florida, Appellee.
    No. 82-2293.
    District Court of Appeal of Florida, Third District.
    Jan. 24, 1984.
    Bennett H. Brummer, Public Defender and Howard K. Blumberg, Asst. Public Defender, for appellant.
    Jim Smith, Atty. Gen. and Penny H. Brill, Asst. Atty. Gen., for appellee.
    Before BARKDULL, NESBITT and FERGUSON, JJ.
   PER CURIAM.

Affirmed. United States v. Stewart, 579 F.2d 356 (5th Cir.), cert. denied, 439 U.S. 936, 99 S.Ct. 332, 58 L.Ed.2d 332 (1978); Hightower v. State, 431 So.2d 289 (Fla. 1st DCA 1983).


author: NESBITT, Judge.

text:
    Orlando VALLE, Appellant, v. The STATE of Florida, Appellee.
    No. 82-2613.
    District Court of Appeal of Florida, Third District.
    Jan. 24, 1984.

      Bennett H. Brummer, Public Defender, and Bruce A. Rosenthal, Asst. Public Defender, for appellant.
    Jim Smith, Atty. Gen., and Michael J. Neiman, Asst. Atty. Gen., for appellee.
    Before BARKDULL, NESBITT and FERGUSON, JJ.
   NESBITT, Judge.

Valle appeals his conviction of attempted robbery, asserting that the trial court erred in denying his motion for discharge pursuant to the speedy trial rule. We affirm.

Valle was arrested on April 18, 1982. Under the speedy trial rule, Fla.R.Crim.P. 3.191, he was entitled to be tried by October 15,1982 — 180 days from the date of his arrest. There is no issue before this court concerning the numerous continuances granted prior to the October 15th deadline.

The victim of the attempted robbery lives in Chicago. In September, 1982, after one of the continuances mentioned above, the witness coordinator at the state attorney’s office called the victim to inform him of the changed trial date. At that time, the victim told the witness coordinator of his plans to go on vacation on October 7, 1982. The witness coordinator relayed this information to the prosecutor.

The victim was brought to Miami on October 4, 1982. The next day the defense took the victim’s deposition. The state then requested an immediate trial because of the victim’s plans to go to Europe on October 7th.

The trial was set for October 6, 1982, which was within the speedy trial period. The state advised the victim to report to the state attorney’s office at 10:00 a.m. on October 6th. When the case was called for trial at 3:50 p.m., October 6, 1982, the state informed the court that the victim had left Miami, without permission. The state then requested an extension of the speedy trial period based on the unavailability of an essential witness. The trial court granted the extension, over the defendant’s objection. Valle’s motion for discharge pursuant to the speedy trial rule was denied. The trial was held after the expiration of the original 180-day period. Valle was convicted of attempted robbery and placed on probation for two years.

On appeal, Valle contends that the unavailability of the victim to testify was not unforeseen, unavoidable or unanticipated because the state knew of the victim’s vacation plans three weeks in advance of trial. Therefore, Valle asserts, there was no exceptional circumstance justifying an extension of the speedy trial time. In support of this contention, Valle cites Brunson v. State, 422 So.2d 956 (Fla. 1st DCA 1982). In Brunson, the court stated in dictum that an extension of the speedy trial period would not have been proper because the state knew three weeks in advance that the witness intended to disregard his subpoena and would not be available for trial.

Unlike the facts presented in Brunson, the prosecutor in the instant case was not forewarned that the victim would be unavailable to testify at the trial. Though the prosecutor knew that the victim intended to go on vacation on October 7th, there was no warning that he would actually leave on October 6th, before the trial commenced. Therefore, this case falls squarely within the circumstances delineated in Florida Rule of Criminal Procedure 3.191(f) for granting an extension of the speedy trial period. The victim was an essential witness and his absence was unforeseeable. See Fla.R.Crim.P. 3.191(f)(1), (3). The extension was properly granted because the trial was originally set within the speedy trial period, see Porter v. State, 439 So.2d 298 (Fla. 3d DCA 1983) and an exceptional circumstance justifying the extension was demonstrated. See State v. Rheinsmith, 362 So.2d 698 (Fla. 2d DCA 1978). Accordingly, the order denying Valle’s motion for discharge and the final judgment of conviction and sentence are affirmed.


text:
    Jack and Ruth YANKS, Appellants, v. Eric STARR, Appellee.
    No. 83-93.
    District Court of Appeal of Florida, Third District.
    Jan. 24, 1984.
    Jack and Ruth Yanks, and Jack Yanks, in pro. per.
    Fromberg, Fromberg, Roth, Gross, Cohen, Shore & Berke and Jeffrey Michael Cohen, Coral Gables, for appellee.
    Before BARKDULL, NESBITT and FERGUSON, JJ.
   PER CURIAM.

Affirmed. Chappell v. Scarborough, 224 So.2d 791 (Fla. 1st DCA 1969).


text:
    Hugo BAGNARDI, Appellant, v. PAN AMERICAN WORLD AIRWAYS, INC., Appellee.
    No. 83-753.
    District Court of Appeal of Florida, Third District.
    Jan. 24, 1984.
    Lanza, Sevier, Womack & O’Connor, Coral Gables, and Judith A. Bass, Miami, for appellant.
    Fowler, White, Burnett, Hurley, Banick & Strickroot and Kathleen M. Williams, Miami, for appellee.
    Before BARKDULL, NESBITT and FERGUSON, JJ.
   PER CURIAM.

The trial court held that the act of appel-lee’s agent, in negligently placing an incorrect claim stub on appellant’s baggage which resulted in improper routing and the loss of valuable equipment, was not willful misconduct, thus the carrier was entitled to avail itself of the provision of the Warsaw Convention Act which limits damages to $900.00. Those findings of facts and conclusions of law will not be disturbed on appeal because they are supported by competent and substantial record evidence. Laufer v. Norma Fashions, Inc., 418 So.2d 437 (Fla. 3d DCA 1982).

Affirmed.

      . Article 25 of the Warsaw Convention, October 12, 1929, 49 Stat. 3000, T.S. No. 876 (codified at 49 U.S.C. § 1502 note (1976)), provides:
      (1) The carrier shall not be entitled to avail himself of the provisions of this convention which exclude or limit his liability, if the damage is caused by his wilful misconduct or by such default on his part as, in accordance with the law of the court to which the case is submitted, is considered to be equivalent to wilful misconduct.
      (2) Similarly the carrier shall not be entitled to avail himself of the said provisions, if the damage is caused under the same circumstances by any agent of the carrier acting within the scope of his employment.


text:
    Yolanda VIZCARRA, Appellant, v. Salvador VIZCARRA, Appellee.
    No. 83-818.
    District Court of Appeal of Florida, Third District.
    Jan. 24, 1984.
    Alan M. Medof, Miami, for appellant.
    Ira Pozen, Miami, for appellee.
    Before BARKDULL, NESBITT and FERGUSON, JJ.
   PER CURIAM.

Affirmed. Shaw v. Shaw, 334 So.2d 13 (Fla.1976); Smith v. Smith, 399 So.2d 1116 (Fla. 4th DCA 1981); Krasner v. Krasner, 339 So.2d 674 (Fla. 3d DCA 1976); Scott v. Scott, 285 So.2d 423 (Fla. 4th DCA 1973) § 61.16 Florida Statutes (1971).


text:
    CARNIVAL CRUISE LINES, INC., Appellant, v. Pilar ALVAREZ, Appellee.
    No. 83-1077.
    District Court of Appeal of Florida, Third District.
    Jan. 24, 1984.
    Smathers & Thompson and Rodney Earl Walton, Miami, for appellant.
    Horton, Perse & Ginsberg and Arnold Ginsberg, Carroll, Halberg & Meyerson, Miami, for appellee.
    Before SCHWARTZ, C.J., and BARK-DULL and HUBBART, JJ.
   PER CURIAM.

Rejecting each of the defendant’s contentions on this appeal from an adverse judgment entered after a non-jury trial in a personal injury action, we hold that (a) the determination of liability is supported by the evidence, Majeske v. Palm Beach Ken nel Club, 117 So.2d 531 (Fla.2d DCA 1959), cert. denied, 122 So.2d 408 (Fla.1960); Millar v. Tropical Gables Corp., 99 So.2d 589 (Fla. 3d DCA 1958); 9 Fla.Jur.2d Carriers §§ 111, 126 (1979); (b) the damage award is not beyond the province of the trier of fact, Bould v. Touchette, 349 So.2d 1181 (Fla.1977); and (c) no harmful error has been demonstrated in the admission or striking of various items of evidence. Binger v. King Pest Control, 401 So.2d 1310 (Fla. 1981); Prince v. Aucilla Naval Stores Co., 103 Fla. 605, 137 So. 886 (1931); Landin v. Oerting, 61 Fla. 652, 55 So. 843 (1911); Leeb v. Read, 190 So.2d 830 (Fla. 3d DCA 1966); Sec. 59.041, Fla.Stat. (1981).

Affirmed.


author: FERGUSON, Judge.

text:
    Jose Luis GARCIA, a minor, By and Through his parents and next best friends, Jose Antonio GARCIA and Marisela Garcia, and Jose Antonio Garcia and Marisela Garcia, individually, Appellants, v. CEDARS OF LEBANON HOSPITAL CORP. a Florida corporation; Florida Patients Compensation Fund; Jose H. Leon, M.D.; Physicians Protective Trust Fund; Rory A. Marin, M.D., and Michael A. Nahmad, and Luis Felipe Mencia, M.D. and S. Villega, M.D., Appellees.
    Nos. 83-1127, 83-1324.
    District Court of Appeal of Florida, Third District.
    Jan. 24, 1984.
    Brumer, Cohen, Logan & Kandell and Allan G. Cohen and Karen A. Curran, Miami, for appellants.
    Adams, Hunter, Angones & Adams and R. Wade Adams and John McClure, Miami, for appellees.
    Before BARKDULL, NESBITT and FERGUSON, JJ.
   FERGUSON, Judge.

This case presents another challenge to the constitutionality of former Section 768.54(2)(b), Florida Statutes (1981). We adhere to our decision in Mercy Hospital, Inc. v. Menendez, 371 So.2d 1077 (Fla. 3d DCA 1979), cert. denied, 383 So.2d 1198 (Fla.1980), which concluded, although in dicta, that the provision which limits a judgment against qualified health providers to $100,000 was valid and enforceable. In Florida Medical Center, Inc. v. Von Stetina, 436 So.2d 1022 (Fla. 4th DCA 1983), the fourth district’s well-reasoned opinion declared Section 768.54(2)(b) an unconstitutional invasion of the courts’ province, noting that its decision conflicted with our decision in Mercy Hospital. The Florida Supreme Court has accepted certiorari in Von Stetina the disposition of which will control this case as well.

Affirmed.

      . We note that this section, which limited the liability of health care providers, was amended by Chapter 82-391, Section 2, Laws of Florida (codified at Section 768.54(2)(b), Florida Statutes (1982)). The amendment, which became effective June 22, 1982, does not apply to the case at bar.

      . The court in Mercy Hospital focused on the 1977 statute. The limitation of liability provision was subsequently amended several times. Although the Von Stetina court dealt with the 1981 version of the statute, the prior amendments had no effect on the provisions pertinent to either court’s holding.

      . Interdistrict conflict for jurisdictional purposes may be based on dicta. See Sweet v. Josephson, 173 So.2d 444, 446 (Fla.1965).


text:
    Donna Sue KIDDER, Appellant, v. The STATE of Florida, Appellee.
    No. 83-1183.
    District Court of Appeal of Florida, Third District.
    Jan. 24, 1984.
    Bennett H. Brummer, Public Defender, and John H. Lipinski, Sp. Asst. Public Defender, for appellant.
    Jim Smith, Atty. Gen., and Bruce Bark-ett, Asst. Atty. Gen., for appellee.
    Before HENDRY, BARKDULL and JORGENSON, JJ.
   PER CURIAM.

Affirmed. See In the Interest of D.A.H., 390 So.2d 379 (Fla. 5th DCA 1980); Division of Family Services v. State of Florida, 319 So.2d 72 (Fla. 1st DCA 1975).


text:
    Rodney WOOTEN, Appellant, v. The STATE of Florida, Appellee.
    No. 83-1211.
    District Court of Appeal of Florida, Third District.
    Jan. 24, 1984.
    Bennett H. Brummer, Public Defender and Claudia Greenberg, Sp. Asst. Public Defender, for appellant.
    Jim Smith, Atty. Gen., and William P. Thomas, Asst. Atty. Gen., for appellee.
    Before BARKDULL, NESBITT and FERGUSON, JJ.
   PER CURIAM.

Affirmed. Albernaz v. United States, 450 U.S. 333,101 S.Ct. 1137, 67 L.Ed.2d 275 (1981); White v. State, 377 So.2d 1149 (Fla.1979) cert. denied, 449 U.S. 845, 101 S.Ct. 129, 66 L.Ed.2d 54 (1980); Neil v. State, 433 So.2d 51 (Fla. 3d DCA 1983) (question pending); Tacoronte v. State, 419 So.2d 789 (Fla. 3d DCA 1982); Mack v. State, 346 So.2d 1229 (Fla. 3d DCA 1977); Hicks v. State, 138 So.2d 101 (Fla. 2d DCA 1962).


author: SCHWARTZ, Chief Judge.

text:
    OMNI INTERNATIONAL OF MIAMI, LTD., Appellant, v. DEPARTMENT OF BANKING AND FINANCE and Department of Revenue, Appellees.
    No. 83-1430.
    District Court of Appeal of Florida, Third District.
    Jan. 24, 1984.
    Valdes-Fauli, Richardson, Cobb & Petrey and William L. Richey and Steven Peretz, Miami, for appellant.
    Walter W. Wood, Tallahassee, for appel-lees.
    Before SCHWARTZ, C.J., and BARK-DULL and BASKIN, JJ.
   SCHWARTZ, Chief Judge.

After trial, the hearing officer found that the appellant shopping center had twice paid sales taxes on the consumption by its tenants of electricity received through a single master meter; first, when it itself paid those amounts after being billed by the power company, and again when it transmitted the same taxes after being reimbursed by the tenants. Accordingly, he recommended that Omni’s applications for refund of those taxes be granted. See Sec. 212.12(12), Fla.Stat. (1981); Sec. 212.081(3), Fla.Stat. (1981).

In the final order now before us, however, the Comptroller denied the refund requests solely on the basis that it was the tenants, and not Omni, who had been the victims of the double payments. The agency determined that the billings to each tenant had included a tax upon the initial tax — that, in other words, for each $1,000 of power consumption as billed by Florida Power & Light, Omni remitted $1,040 to the company, and then received $1,040 plus $40 in sales tax on that amount from the lessee, of which it transmitted only $40 to the state. In this scenario, the appellee asserts, citing State ex rel. Szabo Food Services, Inc. of North Carolina v. Dickinson, 286 So.2d 529 (Fla.1973), that Omni was not harmed by any double taxation on the same services and therefore lacks standing to receive a refund.

We cannot approve this determination because it is apparent that the directly contrary factual findings of the hearing officer that Omni did not collect a double tax from its tenants are fully supported by competent, substantial evidence in the record before him. For example, an Omni representative stated:

Q Did Omni remit the entire sales tax it collected to the State?
A Yes.
Q Did you also remit the part of the sales tax attributable to the utility charge to the State?
A Yes.
Q If a particular tenant used $1,000 worth of electricity, did you pay the utility company $1,040 for that electricity?
A Yes.
Q Was $40 of that $1,040 a sales tax which went to the State?
A Yes.
Q Did you in turn collect $1,000 from the tenant, plus $40 in sales tax?
A Yes.
Q Did you remit that $40 to the State along with the sales tax on rental receipts?
A Yes.
Q Did the State collect $80 on the same $1,000 of electrical usage?
A Yes. The State collected $40 from the utility company and an additional $40 from Omni.

On this record, therefore, the agency’s substitution of its own finding on and of the critical fact is plainly impermissible and must be rejected. Section 120.57(l)(b)(9), Fla.Stat. (1981); Kimball v. Hawkins, 364 So.2d 463 (Fla.1978); Dade County Police Benevolent Association v. City of Homestead, 444 So.2d 465 (Fla. 3d DCA 1984), and cases cited.

The appellee agrees that, on the facts found by the hearing officer, Omni is entitled to recover. Accordingly, the order under review is reversed and the appellee is directed to grant the refunds in question.

Reversed.

      . The recommended order includes the following findings of fact:
      7. Omni makes no profit on the sale of electricity and gas. Rather, it is simply being reimbursed by the tenants for their actual utility consumption.
      8. If the applications are denied, Petitioner will have paid a sales tax on the utility consumption twice — once when the monthly utility bills were paid, and a second time for "additional rent" for occupancy of the premises.

      . We use the word advisedly.

      . Indeed, we can find nothing whatever in the record, as opposed to mere speculation, to support the conclusion of the Comptroller.


text:
    MACH ROSENSTEIN & COMPANY, Appellant, v. Mark MANDEL, as Personal Representative of the Estate of Joseph Gordon, Appellee.
    No. 83-1567.
    District Court of Appeal of Florida, Third District.
    Jan. 24, 1984.
    Marlow, Shofi, Ortmayer, Smith, Connell & Valerius and Joseph H. Lowe, Miami, for appellant.
    Lapidus & Stettin and Jeffrey H. Fink, Miami, for appellee.
    Before HENDRY, BASKIN and FERGUSON, JJ.
   PER CURIAM.

Appellant seeks review of an order of the trial court denying its motion to dismiss for lack of jurisdiction over the person and for improper service of process.

We have carefully considered the record, briefs and argument of counsel and have concluded that the trial court was correct in denying the motion to dismiss. See: Godfrey v. Neumann, 373 So.2d 920 (Fla.1979); Electro Engineering Products Co., Inc. v. Lewis, 352 So.2d 862 (Fla.1977); Engineered Storage Systems, Inc. v. National Partitions & Interiors, Inc., 415 So.2d 114 (Fla. 3d DCA 1982); Lacy v. Force V Corp., 403 So.2d 1050 (Fla. 1st DCA 1981); Laventhol, Krekstein, Horwath & Horwath v. Investors Tax Shel tered Real Estate, Ltd., 838 So.2d 1092 (Fla. 3d DCA 1976); sections 48.061(1), and 48.193(l)(b, g), Florida Statutes (1981).

Affirmed.


text:
    The STATE of Florida, Appellant, v. Kenneth L. THOMPSON, Appellee.
    No. 83-1663.
    District Court of Appeal of Florida, Third District.
    Jan. 24, 1984.
    Jim Smith, Atty. Gen., and Michael J. Neimand, Asst. Atty. Gen., and Lawrence G.Price, Certified Legal Intern, for appellant.
    H.T. Smith, Miami, for appellee.
    Before SCHWARTZ, C.J., and BARK-DULL and HUBBART, JJ.
   PER CURIAM.

Affirmed. Major v. State, 389 So.2d 1203 (Fla. 3d DCA 1980), rev. denied, 408 So.2d 1096 (Fla.1981); State v. Carney, 423 So.2d 511 (Fla. 3d DCA 1982); Luxenburg v. State, 384 So.2d 742 (Fla. 1st DCA 1980); Moorehead v. State, 378 So.2d 123 (Fla. 2d DCA 1980); Rose v. State, 369 So.2d 447 (Fla. 1st DCA 1979).


author: NIMMONS, Judge.

text:
    Charles Elton SMITH, Appellant, v. STATE of Florida, Appellee.
    Nos. AO-388, AP-96.
    District Court of Appeal of Florida, First District.
    Jan. 25, 1984.

      Michael Allen, Public Defender, and Douglas Brinkmeyer, Asst. Public Defender, for appellant.
    Jim Smith, Atty. Gen., and Richard Patterson, Asst. Atty. Gen., for appellee.
   NIMMONS, Judge.

This case involves the trial court’s discharge, at the defendant’s request, of his court-appointed attorney resulting in the defendant’s representation of himself at trial on charges of attempted armed robbery (with firearm). We reverse on the grounds that the trial court did not make the requisite inquiry regarding self-representation by the defendant.

At arraignment on September 13, 1982, the defendant expressed displeasure with the representation by the public defender who had been appointed to represent him and asked that the court appoint another lawyer to represent him. The judge handling the arraignment advised the defendant to confer further with his public defender and that if he still wished to pursue his request that another attorney be appointed, he could take that up later with the judge to whom the case was assigned for trial. Inasmuch as a demand for speedy trial was filed, the case was set for trial for September 30.

The public defender representing the defendant filed a motion to withdraw due to disagreements which had developed over the handling of the defendant’s representation including the difficulty in preparing for trial imposed as a result of the defendant’s refusal to withdraw the demand for speedy trial which the defendant himself had filed a week before the information was filed.

The motion to withdraw was heard in pretrial proceedings before the trial court on September 24 and 28,1983. The defendant told the trial judge that he was dissatisfied with the public defender, that he did not want the public defender to represent him and that he wanted the court to appoint private counsel for him. The defendant also told the court that he did not want to represent himself, that he was not capable of doing so.

During these proceedings, the learned trial judge, with characteristic patience, gave the defendant every opportunity to articulate the alleged shortcomings of the public defender’s efforts in representing the defendant. The trial judge recognized that appointment of new counsel would be inappropriate unless there was sufficient cause to discharge or relieve his attorney. The judge concluded, and rightly so, that the public defender had properly gone about the task of representing the defendant in the limited time frame imposed by the demand for speedy trial and that there were no grounds entitling the defendant to the appointment of new counsel.

The judge explained to the defendant the constraints he was placing on his attorney by refusing to withdraw his demand for speedy trial because discovery had not been completed. The judge told the defendant that if he insisted on going to trial on September 30, he would have to represent himself and that if he wanted effective assistance of counsel, he should withdraw his demand for speedy trial and allow adequate time for preparation of his case. Although the judge stated that he could strike the demand for speedy trial on the basis that the defendant’s attorney had not filed the demand, nothing further was said or done about that. The defendant stated that he would not withdraw his demand and would go to trial on September 30 but did not wish to represent himself. The court announced that the case would be tried on the 30th, that the defendant would have to represent himself and that the court would not require the public defender to sit with the defendant while he conducted his own defense.

On September 30, prior to commencement of the trial, there was a further colloquy between the court and the defendant in which the court inquired as to whether the defendant still wished to proceed to trial representing himself. The defendant responded that he never said that he wanted to represent himself. The case proceeded to trial with the defendant representing himself. The jury returned a verdict of guilty of armed robbery as charged in the information.

The defendant was sentenced on October 4, 1983, to a 15-year term of incarceration. No renewal of the offer of counsel by the court was made for the sentencing stage of the proceedings.

When a defendant moves the court to discharge his court-appointed attorney and to replace him with another appointed attorney, the trial court should first determine whether adequate grounds exist for replacement of the defendant’s attorney with new counsel. Nelson v. State, 274 So.2d 256 (Fla. 4th DCA 1973). The trial judge in the instant case inquired at length into the defendant’s complaints regarding his attorney’s representation of him. The judge properly found that the defendant had no legitimate complaint. The judge was then required to advise the defendant that the result of granting the defendant’s request to discharge his attorney would leave the defendant unrepresented. The appellant was clearly and repeatedly so advised by the trial judge.

After being so advised, where a defendant continues to persist in demanding that his appointed attorney be discharged, as did the appellant, the situation is tantamount to that which exists when a defendant seeks to represent himself. Tucker v. State, 440 So.2d 60 (Fla. 1st DCA 1983); Keene v. State, 420 So.2d 908 (Fla. 1st DCA 1982), rev. denied 430 So.2d 452 (Fla.1983); Williams v. State, 427 So.2d 768 (Fla. 2nd DCA 1983); cf. Mitchell v. State, 407 So.2d 1005 (Fla. 5th DCA 1981).

Fla.R.Cr.P. 3.111(d) sets forth procedures governing waiver of counsel by a defendant. The rule provides, in pertinent part:

(2) A defendant shall not be deemed to have waived the assistance of counsel until the entire process of offering counsel has been completed and a thorough inquiry into accused’s comprehension of that offer and his capacity to make that choice intelligently and understandingly has been made.
(3) No waiver shall be accepted where it appears that the defendant is unable to make an intelligent and understanding choice because of his mental condition, age, education, experience, the nature or complexity of the case, or other factors.

Also, in Faretta v. California, 422 U.S. 806, 95 S.Ct. 2525, 45 L.Ed.2d 562 (1975), the Court stated:

[I]n order to represent himself, the accused must “knowingly and intelligently” forego those relinquished benefits. Johnson v. Zerbst, 304 U.S. [458], at 464-465, 58 S.Ct. [1019], at 1023 [82 L.Ed. 1461]. Cf. Von Moltke v. Gillies, 332 U.S. 708, 723-724, 68 S.Ct. 316, 323, 92 L.Ed. 309 (plurality opinion of Black, J.). Although a defendant need not himself have the skill and experience of a lawyer in order competently and intelligently to choose self-representation, he should be made aware of the dangers and disadvantages of self-representation, so that the record will establish that “he knows what he is doing and his choice is made with eyes open.” Adams v. United States ex rel. McCann, 317 U.S. [269], at 279, 63 S.Ct. [236], at 242 [87 L.Ed. 268].

[95 S.Ct. at 2541]

It was, therefore, incumbent upon the trial court, when the defendant persisted in his demand that his attorney be discharged, to make adequate inquiry to determine whether the defendant was knowingly and intelligently waiving his constitutional right.

In construing the requirements of the above rule and Faretta, we have held that, before a defendant will be permitted to represent himself, the trial court will be required

to make the defendant aware of the benefits he must relinquish, and the dangers and disadvantages of self-representation. Thereafter the trial court must determine whether defendant has made his choice voluntarily and intelligently. We have further held that the trial court should determine whether unusual circumstances exist which would cause the accused to be deprived of a fair trial if permitted to conduct his own defense, and that the purpose of such inquiries, such as the accused’s age, mental derangement, lack of knowledge, education or inexperience in criminal proceedings, is to make certain that defendant is aware of the disadvantage under which he is placing himself by waiving counsel.

Keene v. State, supra at 910; see also Tucker v. State, supra, Costello v. Carlisle, 413 So.2d 834 (Fla. 1st DCA 1982); Robinson v. State, 368 So.2d 674 (Fla. 1st DCA 1979); Ausby v. State, 358 So.2d 562 (Fla. 1st DCA 1978); Kimble v. State, 429 So.2d 1369 (Fla. 3rd DCA 1983).

In the instant case, the trial court, although inquiring at length concerning whether grounds existed for replacing the defendant’s appointed counsel and impressing upon the defendant that neither he nor any attorney could be prepared for trial within the abbreviated period imposed by the defendant’s demand for speedy trial, did not make inquiry into the defendant’s ability to knowingly and intelligently make the choice of self-representation. More specifically, the court did not inquire into the defendant’s age, mental status, lack of knowledge, education or experience in criminal proceedings. We have closely examined the record of the trial court proceedings and have found little, if any, of the kind of inquiry required by the above authorities. The closest the trial court came to touching upon the factors to be covered in such inquiry occurred toward the conclusion of the hearing on September 28:

I’m satisfied that you’re an articulate enough young man. I don’t know how experienced you are in criminal proceedings. I don’t know how experienced you are in the substantive law, procedural law, how a trial is conducted, Maybe you know — maybe you have more experience in that than I know anything about. * * * * * *
But, I can tell you this is not in your best interest. So, I’m not going to require Ms. Cocheu or any other lawyer to sit here with you while you conduct your own defense.

This was not adequate to meet the requirements of the above authorities.

Although we can speculate that this obviously difficult defendant would have continued to insist upon the discharge of his appointed counsel even after the additional inquiry contemplated above, we may not indulge in such speculation and are not free to excuse this deficiency. Absent the requisite inquiry and an appropriate finding based upon such inquiry that the defendant should be permitted to represent himself, the public defender should not have been discharged even though counsel’s task might have been unpleasant. See Mitchell v. State, supra.

The state asserts that an exception should be made because of the untenable situation in which the state says the court was placed by reason of the defendant’s demand for speedy trial coupled with his desire to fire his lawyer and have the court appoint a new one. The trial judge, on several occasions, stated that he had no intention of requiring his attorney, or any other attorney, to represent the defendant at trial as long as the defendant refused to withdraw his demand for speedy trial because there was no way for an attorney to be ready for trial in a serious case such as this within the limited time frame dictated by the demand. But the fact is that neither the court nor the state was “under the gun” by reason of the defendant’s demand for speedy trial. For various reasons, the court was at liberty to disregard the defendant’s demand.

In the first place, the defendant’s pro se demand was filed a week before the information was filed. A demand for speedy trial filed prior to the filing of an information is a nullity. State v. Gravlee, 276 So.2d 480 (Fla.1973); State ex rel Hanks v. Goodman, 253 So.2d 129 (Fla. 1971); State v. Humphrey, 363 So.2d 392 (Fla. 1st DCA 1978); State v. Branam, 434 So.2d 950 (Fla. 2nd DCA 1983).

Even if the demand for speedy trial had been filed subsequent to the filing of the information, it is abundantly clear from the public defender’s motion to withdraw and the above referred proceedings before the trial judge that the defendant was not, in fact, prepared for trial. A demand for speedy trial is not to be filed unless the defendant has a bona fide desire for a speedy trial, and the demand is a representation by the defendant that he is available for trial, has diligently investigated his case, and that he is prepared or will be prepared for trial within five days. Fla. R.Cr.P. 3.191(c). Unfortunately, there are those defendants who, although having no interest in a trial on the merits, speedy or otherwise, would use the demand for speedy trial as a gimmick with the hope of creating confusion which might result in discharge or other favorable disposition short of trial. We must be vigilant to assure that this- procedural right is not abused in that fashion. A defendant will not be permitted to control the court’s docket by filing spurious demands for speedy trial for which he is not, in fact, prepared. State ex rel Hanks v. Goodman, supra. If he has not diligently investigated his case and is not prepared for trial, the demand should be stricken as a nullity. State v. Kaufman, 421 So.2d 776 (Fla. 5th DCA 1982); see also Fla.R.Cr.P. 3.191(d) “Availability for Trial.”

The court could have disregarded the demand for speedy trial on still another basis, one in which the trial judge alluded to as previously noted in this opinion. Before the public defender was finally discharged on the day of trial, the defendant was represented by counsel. The defendant had no right to act as co-counsel with his attorney, Goode v. State, 365 So.2d 381 (Fla.1978), cert. denied, 441 U.S. 967, 99 S.Ct. 2419, 60 L.Ed.2d 1074 (1979), including the right to file separate motions and pleadings, Sheppard v. State, 391 So.2d 346 (Fla. 5th DCA 1980). There is no reason why our system must tolerate dual pleadings filed by both the defendant’s attorney and the defendant himself. Unless counsel moves to “adopt” his client’s pleadings or motions, e.g. Perry v. State, 436 So.2d 426 (Fla. 1st DCA 1983), such filings should be treated as nullities.

The appellant also asserts that the trial court erred in failing to renew the offer of assistance of counsel at the sentencing stage. We agree. Fla.R.Cr.P. 3.111(d)(5) provides:

(5) If a waiver is accepted at any stage of the proceedings, the offer of assistance of counsel shall be renewed by the court at each subsequent stage of the proceedings at which the defendant appears without counsel.

See also Tucker v. State, supra; Baranko v. State, 406 So.2d 1271 (Fla. 1st DCA 1981); and Billions v. State, 399 So.2d 1086 (Fla. 1st DCA 1981).

The judgment and sentence are vacated and this case is remanded for a new trial.

Reversed and Remanded.

SMITH and WIGGINTON, JJ., concur.


author: JO ANOS, Judge. WENTWORTH, Judge,

text:
    The Interest of K.H. and M.C. a/k/a M.H., Dependent Children.
    No. AQ-355.
    District Court of Appeal of Florida, First District.
    Jan. 25, 1984.

      Mary K. Williams and Christina A. Za-wisza, Jacksonville Legal Aid, Inc., Jacksonville, for appellant.
    Jim Smith, Atty. Gen. and James A. Peters, Asst. Atty. Gen., for appellee.
   JO ANOS, Judge.

Appellant, the natural mother of K.H. and M.C. a/k/a M.H., appeals a final order reaffirming the dependency of her two minor children and among other things, relieving the Department of Health and Rehabilitative Services (HRS) of supervision over the children. We affirm the holding that dependency status should continue, but reverse the termination of supervision.

The mother is a twenty-seven year old woman whose hearing and speech are impaired. In 1976, the two children she had at that time were adjudicated dependent due to her excessive dependency upon alcohol and custody was placed away from the mother. K.H., a son, is now twelve and is currently in the custody of his godmother. M.C., a daughter, is ten and in the custody of a paternal aunt. In addition, the mother now has a three year old daughter who has been in her custody since birth.

On March 4, 1981, the mother filed her first motion for change of placement seeking to have K.H. and M.C. returned to her. Investigation and a home study were ordered on March 10, 1981. Psychological and social evaluations indicated that the two children should remain with their present custodians. It was recommended they be reunited with the mother, their sibling and each other through frequent and regularly scheduled visits in the mother’s home. Subsequent review hearings in May and July, 1982, resulted in orders maintaining custody with the current custodians. The last review hearing was held in October, 1982. Evidence showed the children’s strong attachments to their respective custodians and the failure of plans for visitation between the mother and the children. The trial court reaffirmed the dependency of the children, continued their current custodial care, granted the mother reasonable visitation, and relieved HRS of supervision.

The legislature has been clear in expressing the attitude that is to be taken in regard to dependent children such as K.H. and M.C. In Section 39.001(2)(b) and (c), Florida Statutes (1981), two of the primary purposes of the Florida Juvenile Justice Act (Chapter 39) are described as:

(b) To assure to all children brought to the attention of the courts, either as a result of their misconduct or because of neglect or mistreatment by those responsible for their care, the care, guidance, and control, preferably in each child’s own home, which will best serve the moral, emotional, mental, and physical welfare of the child and the best interests of the state.
(c) To preserve and strengthen the child’s family ties whenever possible, removing him from the custody of his parents only when his welfare or the safety and protection of the public cannot be adequately safeguarded without such removal; and, when the child is removed from his own family, to secure for him custody, care, and discipline as nearly as possible equivalent to that which should have been given by his parents; and to assure, in all cases in which a child must be permanently removed from the custody of his parents, that the child be placed in an approved family home and be made a member of the family by adoption, (emphasis supplied)

This means that the welfare of the dependent child .is the supreme consideration. Consistent with that overlying philosophy is the requirement that every reasonable effort to reunite the child with the family should be taken. See also Section 409.145, Florida Statutes (1981). However, when those efforts have been exhausted and it is determined that the child should be permanently removed from parental custody, then adoption of the child by a suitable family becomes the goal. See Section 39.-41(l)(f), Florida Statutes (1981). In other words, so long as a child occupies the status of a dependent child under Chapter 39 there should be a definite plan or effort to reunite the child with its parent(s). If that is not reasonably possible then the termination of parental rights and adoption should be sought. A permanent status of dependency is not an option available under Chapter 39.

The trial court did not act contrary to the purpose of Chapter 39 when, under the circumstances of this case, the Circuit Judge denied a change of custody. To warrant a change of placement, the burden is on the movant, here the mother, to demonstrate that there has been sufficient change in the conditions and circumstances in her life to persuade the court that the best interests of the children would be served by returning custody of the children to her. In Interest of W.H., 356 So.2d 34 (Fla. 1st DCA 1978). There is substantial, competent evidence to support the trial court’s decision that the mother has failed to meet this burden.

The trial judge has broad discretionary power in this case to determine what is in the best interest of K.H. and M.C. In Re R.J.C., 300 So.2d 54, 55 (Fla. 1st DCA 1974).

Although the trial judge stated that the mother was not an unfit mother and no longer had an alcohol problem, he did not believe that she was ready to assume custody of all three children. In addition, the trial judge found that the mother had not been involved in the lives of her children during the six years they were separated. She did not know where her children went to school and she turned down several opportunities to visit with them, when she was not able to have them on her exact terms. As the trial judge correctly observed “[t]his is not a sign of great emotional attachment.” We likewise approve the trial judge’s continued efforts to promote visitation between the mother and the children. The judge has not given up on the idea that the children may in the future be returned to their mother. Therefore, further efforts at restoration of the relationship between mother and children is required.

This court in In the Interest of V.M.C., 369 So.2d 660 (Fla. 1st DCA 1979) recognized:

the legal principle that in proceedings of this character [dependency cases] the primary consideration of the juvenile court must be the best interest of the child. However, the natural parent has a right to family integrity which must not be treated lightly and such parent should not be deprived of reasonable right of visitation with the hope of restoring future custody and control of the child to the natural parent when future circumstances and the welfare of the child justify the same.

Id. at 662.

Because there is still a reasonable possibility of reuniting the children with their mother, termination of parental rights and adoption at this point is still not an acceptable option.

We have determined, however, that it was error to terminate the HRS supervision of the children in this case. K.H. and M.C. are entitled to HRS supervision because they are still dependent. Section 409.145(2)(a), Florida Statutes (1981), provides that the following children are entitled to HRS assistance:

[a]ny child who has been temporarily or permanently taken from the custody of his parents, custodians or guardians in accordance with those provisions in Chapter 39 that relate to dependent children.

The statute speaks in broad terms and when Section 409.145, Florida Statutes (1981), is read as a whole, it is clear that the legislature did not intend to differentiate between classifications of dependent children.

Fla.Admin.Code Rule 10M-5.01 provides:

[t]he purpose of casework in protective services is to ensure the continued protection of the child while providing counseling and related support services designed to maintain the family unit while assisting parents in developing the skills required to meet the minimum needs of their child.

Based upon the above, we hold that HRS supervision was incorrectly terminated in this case. To hold otherwise would prevent equal treatment between classifications of dependent children, without any logical reasons related to the goals and objectives of sections 39.001, 409.145, Florida Statutes (1981). Further, HRS supervision should be continued and utilized in developing and enforcing definite plans and efforts aimed at the future restoration of the custody of the children with their natural mother. See In the Interest of A.B., 444 So.2d 981 (Fla. 1st DCA, 1983).

Accordingly, the trial court’s final order is AFFIRMED, inasmuch as it orders continued dependency, continued custody with the present custodians, and reasonable visitation. The discontinuation of HRS supervision is REVERSED and this cause is REMANDED for further proceedings consistent with this opinion.

LARRY G. SMITH, J„ concurs.

WENTWORTH, J., concurring specially with opinion.

WENTWORTH, Judge,

concurring specially.

I agree with the majority’s disposition of the case and statement of the points affirmed and reversed, but am uncertain that the trial judge intended to find the "continued dependency” which we affirm and which I believe is required to support the continued custodial placements. The order states:

I do not find that the mother is an unfit mother. She is taking care of a younger child and has completed the requirements of the HRS Developmental Services. Therefore, I cannot conclude that she is unable to take care of children. I do not think that the mother has an alcoholic problem or she would have not been able to raise the younger child. It is doubtful if she could have provided the required care to [S] if she had custody of [K] and [M].

Although other evidence noted by the order will support a conclusion that continued supervision in custody separate from the mother is necessary to protect the children from neglect, that standard is not articulated. Since we remand for further proceedings, it seems to me appropriate to note that statutory standard as the principle by which the court’s broad discretion is to be guided, and by which the mother’s burden of proof is to be measured.

      . Instead the order on appeal simply recognizes that "the disposition order ... can be changed from time to time as determined by the best interests of the children,” and concludes "the children are better off outside of [the mother’s] home at this particular time.” The court’s refusal to find that appellant was, in general, an "unfit mother” does not, of course, dictate a determination of fitness for the specific purposes in question. Cf., Pape v. Pape, 444 So.2d 1058 (Fla. 1st DCA, 1984); In the Interest of A.B., 444 So.2d 981 (Fla. 1st DCA, 1983).


text:
    Marcia Ireland BROOKBANK, Appellant, v. John Warren BROOKBANK, Appellee.
    No. AT-473.
    District Court of Appeal of Florida, First District.
    Jan. 25, 1984.
    Barbara A. Burkett and Judith A. Quandt, Gainesville, for appellant.
    Kenneth E. Brooten, Gainesville, for ap-pellee.
   PER CURIAM.

AFFIRMED.

Canakaris v. Canakaris, 382 So.2d 1197 (Fla.1980); Shaw v. Shaw, 334 So.2d 13, 14 (Fla.1976); Kuvin v. Kuvin, 442 So.2d 203 (Fla.1983); Conner v. Conner, 439 So.2d 887 (Fla.1983).

ERVIN, C.J., and BOOTH and ZEH-MER, JJ., concur.


text:
    HANOVER INSURANCE CO., Appellant, v. Evelyn SHEVELIN, Appellee.
    No. 82-2390.
    District Court of Appeal of Florida, Fourth District.
    Jan. 25, 1984.
    William J. Berger of Tew, Spittler, Berger & Bluestein, Coral Gables, for appellant.
    Terry Ellen Fixel, Hollywood, for appel-lee.
   PER CURIAM.

The provision of the final judgment which taxes arbitration expenses of $750.00 (one-half of the three arbitrators’ fees) as a court cost is reversed on the authority of Lumbermens Mutual Casualty Co. v. Meade, 404 So.2d 1141 (Fla. 5th DCA 1981), aff'd., 423 So.2d 908 (Fla.1982); Rutkin v. State Farm Mutual Automobile Insurance Co., 195 So.2d 221 (Fla. 3d DCA), aff'd., 199 So.2d 705 (Fla.1967); see also section 682.11, Florida Statutes (1981); Carter v. State Farm Mutual Automobile Insurance Co., 224 So.2d 802 (Fla. 1st DCA 1969). The final judgment is affirmed in all other respects.

AFFIRMED IN PART; REVERSED IN PART.

BERANEK, GLICKSTEIN and HURLEY, JJ., concur.


text:
    Allen ANDERSON, Appellant, v. STATE of Florida, Appellee.
    No. 82-2653.
    District Court of Appeal of Florida, Fourth District.
    Jan. 25, 1984.
    Richard L. Jorandby, Public Defender, and Stephen W. Benedict, Asst. Public Defender, West Palm Beach, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Bruce M. Lee, Asst. Atty. Gen., West Palm Beach, for appellee.
   PER CURIAM.

Affirmed on the authority of Justus v. State, 438 So.2d 358 (Fla.1983).

DOWNEY, LETTS and HERSEY, JJ., concur.


text:
    Harold NICHOLS, Appellant, v. FIRST NATIONAL BANK OF HOLLYWOOD, f/k/a First National Bank of Hallandale, a national banking association, and Bank Leumi Trust Company of New York, Appellees.
    No. 83-499.
    District Court of Appeal of Florida, Fourth District.
    Jan. 25, 1984.
    James M. Miller of Stroock, Stroock & Lavin, Miami, for appellant.
    Joseph J. Huss and Jack F. Weins of Abrams, Anton, Robbins, Resnick, Schneider & Mager, Hollywood, for appellees.
    Sheldon Rosenberg of Ress, Gomez, Rosenberg & Howland, North Miami, for Bank Leumi Trust.
   PER CURIAM.

We reverse the summary judgment entered in favor of First National Bank of Hollywood, f/k/a First National Bank of Hallandale, a national banking association, and against Harold Nichols, because there was an unresolved genuine issue of material fact as to whether or not the payee of the check, Sal Cataldo, who did not endorse the check, received the check proceeds.

Reversed and remanded.

ANSTEAD, C.J., and BERANEK and WALDEN, JJ., concur.


text:
    Herbert Lee GAINES, Appellant, v. STATE of Florida, Appellee.
    No. 83-629.
    District Court of Appeal of Florida, Fourth District.
    Jan. 25, 1984.
    Rehearing Denied Feb. 22, 1984.
    Richard L. Jorandby, Public Defender, and Anthony Calvello, Asst. Public Defender, West Palm Beach, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Sharon Lee Stedman, Asst. Atty. Gen., West Palm Beach, for appellee.
   PER CURIAM.

Defendant’s conviction under Section 817.563, Florida Statutes (1981), is reversed on the authority of State v. Bussey, 444 So.2d 63 (Fla. 4th DCA 1984), where the identical issue was recently decided. Also see Jollie v. State, 405 So.2d 418 (Fla.1981).

REVERSED AND REMANDED WITH DIRECTIONS TO DISCHARGE DEFENDANT.

DOWNEY, BERANEK and HERSEY, JJ., concur.


text:
    Charles JENKINS, Appellant, v. STATE of Florida, Appellee.
    No. 83-682.
    District Court of Appeal of Florida, Fourth District.
    Jan. 25, 1984.
    Richard L. Jorandby, Public Defender, and Louis G. Carres, Asst. Public Defender, West Palm Beach, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Marlyn J. Altman, Asst. Atty. Gen., West Palm Beach, for appellee.
   PER CURIAM.

We affirm upon authority of In Interest of P.L.R., 435 So.2d 850 (Fla. 4th DCA 1983). We likewise certify that our decision is in conflict with Thompson v. State, 405 So.2d 501 (Fla. 2d DCA 1981); Carr v. State, 353 So.2d 958 (Fla. 2d DCA 1978); and Harris v. State, 352 So.2d 1269 (Fla. 2d DCA 1977).

AFFIRMED.

ANSTEAD, C.J., and GLICKSTEIN and WALDEN, JJ., concur.


text:
    Leroy B. PERRY, Edith Sturm, James Perry, Mary Eichinger, Doris R. Grillo, and Donald A. Perry, Appellants, v. Lloyd Edward YOUNG, as Personal Representative of Estate of Evelyn M. Wise, deceased, Lloyd Edward Young, and Catherine M. Young, Appellees.
    No. 83-1106.
    District Court of Appeal of Florida, Fourth District.
    Jan. 25, 1984.

      Rusley C. Meeker of Hallman, Meeker, Keeley & Furr, Boca Raton, for appellants.
    Robert A. Urban and Bennett Oppenheimer, Fort Lauderdale, for appellees.
   PER CURIAM.

Upon review of the record we conclude that the trial court’s judgment is supported by competent, substantial evidence and that any error made by the court in stating the grounds for its decision was harmless. See generally, Servidone Construction Corp. v. Southeast Materials Corp., 421 So.2d 695 (Fla. 2d DCA 1982) and In re Estate of Hammermann, 387 So.2d 409 (Fla. 4th DCA 1980). Accordingly, the judgment is hereby affirmed.

ANSTEAD, C.J., and BERANEK and WALDEN, JJ., concur.


text:
    Richard A. STROH, Appellant, v. Marika TOLZ, Sol B. Corp. and Statewide Realty Corporation, Appellees.
    No. 83-1157.
    District Court of Appeal of Florida, Fourth District.
    Jan. 25, 1984.
    Rehearing Denied Feb. 20, 1984.
    Richard P. Gumson and Arthur Braver-man of Richard P. Gumson, P.A., Hollywood, for appellant.
    Donald G. Criscuolo of Genet & Milner, North Miami Beach, for appellee-Sol B. Corp.
   PER CURIAM.

Appellant challenges the propriety of twb adverse summary judgments: one entered on the original claim and one entered on the counterclaim. Our review of the record filed in this cause leads us to conclude that the appellee, as the movant on both motions, failed to negate the existence of genuine issues of material fact. Consequently, both summary judgments are reversed and the cause is remanded for further proceedings. See Landers v. Milton, 370 So.2d 368 (Fla.1979); McCabe v. Walt Disney World Co., 350 So.2d 814 (Fla. 4th DCA 1977).

REVERSED & REMANDED FOR FURTHER PROCEEDINGS.

GLICKSTEIN, HURLEY and DELL, JJ., concur.


author: GLICKSTEIN, Judge.

text:
    W AND F LIMITED, Appellant, v. John B. DUNKLE, Clerk of Circuit Court, Palm Beach County, Florida, Palm Beach County, a political subdivision of the State of Florida and The Palm Beach County Public Building Corporation, a Florida corporation, Appellees.
    No. 83-1520.
    District Court of Appeal of Florida, Fourth District.
    Jan. 25, 1984.

      Robert M. Gross of Moyle, Jones & Flani-gan, P.A., West Palm Beach, for appellant.
    Maureen A. Hackett of Johnston, Sasser, Randolph & Weaver, West Palm Beach, for appellee Dunkle.
   GLICKSTEIN, Judge.

This is an appeal by the intervening successor developer from a final judgment rendered in favor of the clerk of the circuit court, who brought an action against Palm Beach County and the Palm Beach County Public Building Corporation. We affirm. The following facts are recited in the thorough final judgment sculpted by the acting circuit judge who presided at the trial:

This suit concerns the $20,000,000 county administrative complex which is presently being constructed adjacent to the existing county courthouse. On January 5, 1981 the Clark Haney Development Team entered into an agreement to construct the administrative complex. As a part of the agreement with the County it was agreed that the financing vehicle for the administrative complex would be a corporation.
Pursuant to that agreement, on April 2, 1981 the Palm Beach County Public Building Corporation, Incorporated, a non-profit corporation was officially chartered. The directors all serve at the discretion of the Board of County Commissioners of Palm Beach County. The Corporation has no members, no stock, no dividends and distributes no income. All assets of the Corporation are to be transferred as a gift to Palm Beach County upon repayment of the Corporation’s $20,000,000 bond issue.
On June 1, 1981 Palm Beach County leased the land that they own adjacent to the present courthouse to the Corporation for a term of thirty years. On the same day the Corporation leased back to the County, for thirty years, the administrative complex. On the same day the Corporation issued $20,000,000 in revenue bonds to finance the construction of the administrative complex. The County ultimately bears the responsibility for repaying these bonds. The rent that the County pays to the Corporation is not a fixed amount, but is in an amount sufficient to cover all repayment on the bonds. Some outside income is earned from interest on the revenues raised and from a Lease to W & F of 70,000 of the approximately 290,000 square feet of the administrative complex. The amount of W & F space decreases over a period of time as the County’s need for space increases. Profits W & F earns in re-leasing this space to private businesses are split equally with the County.
The funds from the bond issue have been deposited under an indenture of trust with the First Marine Bank and Trust Company of Palm Beach which acts as the trustee. Payments for construction costs are made directly by the trustee.
The corporation, as the work progresses, submits a request for payment to the County Commissioners or County Administrator, not to the Clerk, for approval prior to payment. (Described in Plaintiffs Exhibit One, document 1.03, Article VI.) The Clerk has no preaudit, audit, custodial, recording or bookkeeping function under the Corporation’s method of preauditing and disbursing funds.
W & F has an interest that would be affected by the declaration of the Court because delays in construction, disputes over disbursement of money, problems with subcontractors, and litigation, all involving W & F could arise as a result of the Court’s declaration.

The trial judge then said:

Presently the funds of the Defendant, Palm Beach County Public Building Corporation, Inc., are being disbursed without the Clerk exercising any power, privilege or right over these funds.
The Court has also been requested to determine the validity or invalidity of the bond issue which resulted in the Defendant Corporation acquiring $20,000,000. The proceeds of this bond issue are presently being expended in the construction of the administrative complex. If these funds were improperly or unlawfully acquired, the Clerk may not be able to disburse them. The Clerk is in doubt as to whether a bond validation referendum was required by law.
The pivotal point in this controversy is whether or not the funds of the Palm Beach County Public Building Corporation are funds of Palm Beach County. The Clerk is the auditor, recorder, custodian and general watchdog of all Palm Beach County funds. Alachua County v. Powers, 351 So.2nd 32 (Fla.1977). [Emphasis added by this court.]
The Defendants claim that the purpose of the corporation is to allow a separate, legally recognized entity to exist. They claim that these bonds are clearly issued by a separate legal entity, the Corporation, that the only body directly obligated to repay the bonds is the Corporation and that the County is solely a lessee of the Corporation.
A corporation is a legal entity by fiction of law with certain specific purposes:
To limit the liability of the equity owners in the corporation, in this corporation there are no equity owners.
To separate the assets of the corporation from the assets of the stockholders of the corporation, in this corporation there are no stockholders.
To separate the assets of the corporation from the assets of the incorporators, in this corporation the County is the in-corporator, it is the County assets that back the bond issue and all the corporate assets immediately become the County’s upon payment of the bond issue.
To preserve the corporate assets for corporate creditors, the only asset of the Corporation is temporary legal title, but not equitable title, to the administrative complex, the real security for the creditors is the nonadvalorem tax revenues of the County.
To acquire or dispose of property separately from its members, in this instance the corporation can not do this without first obtaining the approval of the County.
The $20,000,000 bond issue revenues come from investors who purchased bonds of the Corporation. The bondholders will be directly repaid by the Corporation. The source of funds to repay the revenue bonds comes from the County. Incidental amounts come from a lease agreement with W & F and from interest earned on unspent money being held by the trustee.
Palm Beach County in the past has issued bonds directly as an obligation of Palm Beach County. In this venture, the County used an unconventional method of issuance; the formation of the public building corporation.

These bonds appeal to investors due to:

a) their tax free status since the Internal Revenue Service regards these bonds as being issued by a political subdivision of the state.
b) their marketability since the bonds are backed by a lease of the administrative complex from the Corporation to the County wherein the County guarantees that it will pay sufficient revenues to the Corporation to enable the Corporation to repay the bond holders. Without the backing of the County’s nonadvalorem tax revenues the bonds would be unmarketable.
The Corporation was created to finance the development of the County administrative offices, the Corporation was formed by County officials. The officers and directors of the Corporation serve at the pleasure of the County Commissioners, the Bylaws and Articles of Incorporation may not be changed without the approval of the County Commissioners. The County Commission and the County Administrator exercise the right to approve or disapprove expenditures of the Corporation, County approval was needed before the Corporation could issue bonds, the Corporate office is the County Attorney’s office, the Resident Agent is the County Attorney, the financial advis- or is the County’s financial advisor, the complex is on County owned land and the assets of the Corporation pass to the County when the bonds are paid off.
In short, when looking at the formation, the purpose, the personnel, the financial backing, the ultimate goals and the ultimate beneficiary of the Corporation’s activities the Court finds that the Corporation is a subordinate, dependent, division of Palm Beach County. The Court finds that the real party backing these bonds is the County. The concept of a corporate entity in an equity action such as this action is used as a formula for working out the rights and the equities of the real parties in interest. 8 Fla.Jur.2d, Business Relationships, section 19.

The appeal has been limited in scope to a single determinative issue; namely, whether there is substantial competent evidence in the record, supported by applicable law, to justify affirmance of the trial court’s determination that the appellee clerk has the authority to pre-audit the contemplated expenses of this project and to audit those which have been expended. We conclude that the final judgment meets the evidentiary and precedential tests.

As for the former, the trial judge delineated his conclusion that the public corporation was the alter ego of the county for the purpose of an inquiry. See Vantage View, Inc. v. Bali East Development Corp., 421 So.2d 728 (Fla. 4th DCA 1982). We have quoted herein all of the factors he considered in this regard and would add the record evidence of one expert opinion that the funds were county public funds and of another that the public corporation would be categorized as the county for financial reporting services.

As for the law, by way of preliminary statements, neither the county nor the public corporation appealed the trial court’s decision; therefore, there is no input to this court from either of those bodies upon the law which should govern the disposition of this case. However, the Alachua County case, which the trial judge cited, spelled out the pre-audit and audit functions, pursuant to then existing statutes. It is these, and only these, functions to which the appellee clerk is limiting his claim for relief and which we interpret as the four corners of the final judgment upon which review is being sought by appellant. The court said in Alachua County:

We first consider the clerk’s auditing responsibility. Section 129.09, Florida Statutes (1975), forbids the clerk “acting as county auditor,” from signing illegal warrants and provides both personal and criminal liability for violation of this provision. The clerk, as auditor, is required by law to refuse to sign and deliver a county warrant for an unlawful expenditure, even though approved by the board of county commissioners. Mayes Printing Company v. Flowers, 154 So.2d 859 (Fla. 1st DCA 1963). Although an appropriation of county funds may serve a county purpose, there must be some type of pre-audit review of the disbursement in order to be sure that the funds will not be used for an unlawful purpose.
Section 136.08, Florida Statutes (1975), provides that the accounts of the board of county commissioners and the account of any bank acting as a depository shall be subject to the inspection and examination of the “county auditor, the auditor general and the department of banking and finance of persons designated by it.” Section 11.45(3)(a), Florida Statutes (Supp.1976), provides for post-audits by the auditor general of accounts and records of “county agencies,” which includes the board of county commissioners and the clerk of the circuit court. See Section 11.45(l)(e), Id, defining county agencies. All agencies have the power to have a performance audit or post-audit of their accounts and records by an independent certified public accountant retained by them and paid from their public funds. Section 11.45(3)(a), Id.

351 So.2d at 36. The legislature has wisely not done anything since that decision to devitalize the caretaking of public funds; and we conclude it appropriate that the statutory authority apply to the facts of this ease.

Since the entry of final judgment and the denial of any stay by the trial judge as well as this court’s earlier refusal to lift the stay, the clerk has obviously been engaged in both functions. The only testimony in the record to reflect material concern with the clerk’s involvement was the fear of collapsing the project because of delays in legitimate payments. There was no evidence whatsoever that the clerk’s involvement would occasion needless, devastating delays in legitimate payments. The only testimony, in fact, was that the clerk’s participation would not occasion such delay in legitimate payments.

The public has every right to be concerned with the legitimacy of each and every payment involved in this project. The taxpayers look to the clerk’s audits to shield them from the kinds of misuse of public funds that have recently surfaced in other Florida communities and in other jurisdictions. They fervently hope his ministrations will be an effective antidote to several political maladies found in other communities: the soap syndrome — one hand washes the other; complacency — be concerned only when someone gets caught, and lockjaw — don’t rock the boat. If there is potential for public harm in what the clerk seeks to achieve in this case, the trial court did not perceive it nor do we. Appropriately, the trial court has retained jurisdiction to monitor carefully the impact and the implementation of its final judgment. It is prepared to respond quickly, as is this court if there is need to review subsequent orders.

ANSTEAD, C.J., and WALDEN, J., concur.


author: PER CURIAM. ANSTEAD, Chief Judge,

text:
    Normand ADAMS, Appellant, v. STATE of Florida, Appellee.
    No. 82-2379.
    District Court of Appeal of Florida, Fourth District.
    Jan. 25, 1984.
    Rehearing Denied Feb. 9, 1984.
    Don S. Cohn, Miami, for appellant.

      Jim Smith, Atty. Gen., Tallahassee, and Russell S. Bohn, Asst. Atty. Gen., West Palm Beach, for appellee.
   PER CURIAM.

AFFIRMED.

GLICKSTEIN and WALDEN, JJ., concur.

' ANSTEAD, C.J., concurs specially with opinion.

ANSTEAD, Chief Judge,

concurring specially:

I agree that the appellant has failed to establish reversible error and write separately only to comment upon the appellant’s claim that the trial court should have declared a mistrial upon discovering that "'appellant’s lawyer had been suspended from practicing law for the non-payment of dues. In my view this case is distinguishable from Huckelbury v. State, 387 So.2d 400 (Fla. 2d DCA 1976) where the purported attorney involved had never been admitted to the bar. Because no actual prejudice has been demonstrated I would follow the lead of those cases which hold that the failure to pay dues, while a technical defect in the lawyer’s qualifications to practice, does not deprive a defendant of his rights to competent counsel. See Beto v. Barfield, 391 F.2d 275 (5th Cir.) cert. denied 393 U.S. 888, 89 S.Ct. 205, 21 L.Ed.2d 166 (1968). This is especially true here where the problem did not arise until late in the trial.


text:
    In re FORFEITURE OF ONE PIPER CHEROKEE SIX AIRCRAFT, N3797W, SERIAL NO. 32-726; One Piper Aztec Aircraft N5172Y, Serial No. 27-22103, and One 1979 Lincoln Continental Automobile, Texas Tag No. WND 890, VIN 9Y81S751359.
    No. 83-987.
    District Court of Appeal of Florida, Fourth District.
    Jan. 25, 1984.
    R.H. Hitchcock and Steven R. Burk of Hitchcock & Cunningham, P.A., Fort Laud-erdale, for appellants-Charles David Ivey and Cha-Haz Woodcrafts, Inc.
    Ronald Ray Austin, Tallahassee, for ap-pellee-Robert R. Dempsey, as Com’r of the Fla. Dept, of Law Enforcement.
   PER CURIAM.

AFFIRMED.

GLICKSTEIN and WALDEN, JJ., concur.

ANSTEAD, C.J., concurs specially with opinion.

ANSTEAD, Chief Judge,

specially concurring:

I concur in the affirmance of the trial court’s entry of a final judgment of forfeiture due to the appellants’ failure to properly respond to the order to show cause previously issued by the trial court. The order to show cause expressly noticed the appellants that they must respond to the order in writing within twenty days or suffer a default. This court has approved that procedure in In re: Forfeiture of Approximately $.'48,900.00 U.S. Currency, 432 So.2d 1382 (Fla. 4th DCA 1983). Despite that notice the appellants failed to timely respond or to show good cause for failing to properly respond, and I agree that the trial court thereafter acted within its authority in directing forfeiture.


text:
    Johnnie TAYLOR, Appellant, v. STATE of Florida, Appellee.
    No. AS-228.
    District Court of Appeal of Florida, First District.
    Jan. 26, 1984.
    Michael Allen, Public Defender, Charlene V. Edwards, Asst. Public Defender, for appellant.
    Jim Smith, Atty. Gen., Greg Smith, Asst. Atty. Gen., for appellee.
   MILLS, Judge.

This case is before us on Taylor’s brief filed pursuant to Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967). We find no reversible error.

AFFIRMED.

WENTWORTH, J., and McCORD, Guyte P., Jr., (Ret.), Associate Judge, concur.


text:
    Steve SECREST, Appellant, v. STATE of Florida, Appellee.
    No. AT-393.
    District Court of Appeal of Florida, First District.
    Jan. 26, 1984.
    Michael Allen, Public Defender, Glenna Joyce Reeves, Asst. Public Defender, for appellant.
    Jim Smith, Atty. Gen., Wallace Allbrit-ton, Asst. Atty. Gen., for appellee.
   MILLS, Judge.

This case is before us on Secrest’s brief filed pursuant to Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967). We find no reversible error.

AFFIRMED.

WENTWORTH, J., and McCORD, Guyte P., Jr., (Ret.), Associate Judge, concur.


text:
    Troy M. OATSVALL, Appellant, v. STATE of Florida, Appellee.
    No. AW-7.
    District Court of Appeal of Florida, First District.
    Jan. 26, 1984.

      Troy M. Oatsvall, pro se.
    No appearance for appellee.
   MILLS, Judge.

Contending his guilty plea to a charge of escape was not knowingly and intelligently made, Oatsvall appeals the trial court’s order denying his Florida Rule of Criminal Procedure 3.850 motion for postconviction relief. The waiver and consent form attached to the order shows Oatsvall was informed of his rights, knew the maximum penalty, knowingly waived a jury trial, and pled freely and voluntarily. The form was signed by Oatsvall and his attorney and approved by the trial court when the plea was accepted.

AFFIRMED.

WENTWORTH, J., and McCORD, Guyte P., Jr., (Ret.), Associate Judge, concur.


author: SANDERLIN, JAMES B., Associate Judge.

text:
    Herschel N. POLLARD, Jr., Appellant, v. STATE of Florida, Appellee.
    No. 82-2610.
    District Court of Appeal of Florida, Second District.
    Jan. 27, 1984.

      Peter D. Ringsmuth of Smith, Carta, Ringsmuth & Kluttz, Fort Myers, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Michael J. Kotler, Asst. Atty. Gen., Tampa, for appellee.
   SANDERLIN, JAMES B., Associate Judge.

Appellant was charged with lewd and lascivious assault upon a child. The victim testified that she went to appellant’s house at his wife’s request to babysit. Appellant was at the house. The victim testified that she massaged appellant’s back, then defendant massaged her back, vaginal area, and breasts. Appellant’s chief defense was that the victim fantasized the incident as an attention-grasping event. The trial court refused to allow cross-examination along these lines. The jury returned a verdict of guilty and appellant brings this appeal.

Appellant raises seven points on appeal. We will only consider four.

The first point raised is that the trial court denied appellant a fair trial by improperly limiting his jury voir dire. Appellant was not allowed to ask prospective jurors if they would be offended if he cross-examined the state’s witness as to bias or possible fantasy. Appellant was also prevented from asking whether they would consider, in applying the reasonable doubt standard, the ability of a witness to recall events. In addition, appellant was not allowed to inquire into jurors’ attitudes toward the life of a modern family. However, the prosecutor was allowed to question jurors regarding attitudes toward the credibility of children who do not immediately tell their parents about á particular incident in their life. The trial court continually interrupted appellant’s voir dire Without state objection, but never did so during the state’s voir dire. The appellant contends that the trial court thwarted his ability to conduct the varied examination that was essential to select a fair and impartial jury. These cited instances and others throughout the record disclose that the trial judge interjected himself too far into the case with a result “... so prejudicial to the defendant as to deprive him of a fair and impartial jury consideration of his guilt or innocence.” Rockett v. State, 262 So.2d 242, 243 (Fla. 2d DCA 1972).

The second issue raised is that the trial judge improperly limited appellant’s cross-examination of the victim. Appellant’s defense rested on the theory that the victim fabricated the story because she was neglected at home, received no attention, and had no cohesive family life. The trial court prohibited appellant’s counsel from probing into the witness’s background on the grounds that it was beyond the scope of direct examination. However, matters tending to show bias or prejudice in a criminal prosecution may be inquired about even when they are not mentioned in direct examination. McDuffie v. State, 341 So.2d 840 (Fla. 2d DCA 1977). This is particularly of consequence when the victim’s testimony supplies all the essential elements of the offense.

Appellant next contends that the trial court erred by instructing a witness during her testimony that she might be committing perjury. The state had called appellant’s wife, Stephanie Pollard, who, on cross-examination by appellant’s counsel, testified that she had seen appellant at a skating rink at the time the victim alleged the assault occurred. On redirect examination, the prosecutor began to impeach Mrs. Pollard by use of a transcript of a tape recorded statement previously made to the prosecutor. In the transcript, she had stated she would have difficulty surviving if she did not get support from her husband, the appellant. However, at trial she stated she would not have difficulty if she did not get support. As the prosecutor attempted to impeach her by use of the prior statement, the court on its own motion, ordered the jury out of the courtroom. The court then told the witness:

Mrs. Pollard, perjury is a criminal offense. The reason I took the jury out is I want to advise you now that the State Attorney has, at least he has advised the court, that he has a statement by you under oath — you are under oath today. It doesn’t matter to me one way or the other what you testify to, but I think now it’s incumbent upon me to tell you that, if, in fact, you have made two different statements under oath, and made them knowingly, you could be guilty of penury. And I guess I should tell you you have the right to remain silent if you want to. I think it’s time for me to tell you that that’s what he is setting up, so keep that in mind.

After the jury returned to the courtroom, the witness changed her testimony, saying that she would have difficulty supporting herself.

In Reese v. State, 382 So.2d 141 (Fla. 4th DCA 1980), the court reversed the conviction of the defendant when the trial court, out of the presence of the jury, instructed a witness regarding perjury and as a result that witness immediately changed her testimony. The fourth district stated:

Unfortunately, as with any witness whose memory is suddenly refreshed when confronted with the prospect of jail, one cannot be certain which version of the facts is indeed the “truth.”
The proper procedure to follow when a witness deviates from prior sworn testimony, to the surprise of the party calling such witness, is to declare such witness hostile and allow the party to cross-examine and impeach the witness. The trier of fact can then decide which version of the “truth” presented by the witness is to be believed, and the issue of perjury is left for a separate proceeding.

Id. at 144.

The other issues raised by appellant concern matters not objected to at trial. These issues, being the improper use by the prosecutor of a prior recorded statement, improper argument by the prosecutor, and the trial court’s remarks during appellant’s closing argument, though waived, do have a cumulative effect and the combined weight of these errors should be considered with others to determine whether substantial rights of the appellant have been affected. In Gibbs v. State, 193 So.2d 460 (Fla. 2d DCA 1967), the court said:

Objections were not made in the lower court, and the making of these comments was not such fundamental error of law as to constitute the sole cause of reversal. However, this error may be considered with other assignments of error in determining whether the substantial rights of the defendant have been injuriously affected.

Id. at 463. See also Rockett.

The judgment appealed from is REVERSED and the case REMANDED for a new trial.

RYDER, A.C.J., and CAMPBELL, J., concur.


author: WIGGINTON, Judge.

text:
    Marvin JOHNSON, Appellant, v. STATE of Florida, Appellee.
    No. AR-481.
    District Court of Appeal of Florida, First District.
    Jan. 30, 1984.

      Michael Allen, Public Defender; and Charlene V. Edwards, Asst. Public Defender, for appellant.
    Jim Smith, Atty. Gen., and John W. Tied-emann, Asst. Atty. Gen., for appellee.
   WIGGINTON, Judge.

Appellant appeals his conviction after jury trial of depositing a worthless check with intent to defraud in violation of section 832.05(3), Florida Statutes, which provides:

(a) It is unlawful for any person, by act or common scheme, to cash or deposit any item, as defined in section 674.-104(l)(g), in any bank or depository with intent to defraud.

We affirm.

Evidence was presented at trial to show that on March 11, 1982, appellant deposited a $2,500 counter check signed by a “Robert Watts” and drawn on the Citizens State Bank of Marianna into the account of' Gwendolyn Fagg at Citizens Bank and Trust in Quincy. The teller at the Quincy bank testified that when appellant made the deposit she told him to tell Mrs. Fagg that since the check was for a large amount of money, she would have to place it under a ten day hold. Ignoring that instruction, appellant immediately informed Mrs. Fagg of the deposit without mentioning the hold placed on it, and asked her to write a check on her account for $2,500 and to take that check to First State National Bank in Bainbridge to satisfy appellant’s obligation for $2,500 to another person. Within a few days, the banks had determined that the “Robert Watts” account on which the original $2,500 check was drawn was nonexistent.

Appellant argues that his motion for judgment of acquittal at the close of the state’s case should have been granted because the state failed to prove that appellant knew the check was worthless and that he had the intent to defraud Mrs. Fagg or the Quincy Bank. Statutory presumptions override appellant’s position. Section 832.07(l)(a) provides, in part:

In any prosecution or action under this chapter, the making ... or delivery of a check ... payment of which is refused by the drawee because of lack of funds or credit, shall be prima facie evidence of intent to defraud ....

Contrary to appellant’s contention, we hold that the phrase “to cash or deposit” as used in section 832.05(3)(a) is encompassed within the meaning of the term “delivery” in section 832.07. Therefore, appellant’s undisputed act of depositing the worthless check in Mrs. Fagg’s account amounted to a delivery of that check and thus constituted prima facie evidence of his intent to defraud. That presumption remained unrefuted and was corroborated by the evidence of appellant’s action of disregarding the bank teller’s instructions as to the hold placed on the original check. Therefore, the trial court did not err in denying the motion for judgment of acquittal.

AFFIRMED.

LARRY G. SMITH and NIMMONS, JJ., concur.


text:
    Albert E. McCROAN, Appellant, v. SOUTHERN CULVERT, self-insured; Bayly, Martin & Fay, Inc., Appellees.
    No. AS-378.
    District Court of Appeal of Florida, First District.
    Jan. 30, 1984.
    Stephen L. Rosen of Morris & Rosen, P.A., Tampa, for appellant.
    Charles A. Zinn of Shackleford, Farrior, Stallings & Evans, P.A., Tampa, for appel-lees.
   PER CURIAM.

AFFIRMED. See Swanigan v. Dobbs House, 442 So.2d 1026 (Fla.1983).

MILLS, WENTWORTH, JJ., and GUYTE P. McCORD, Jr. (Retired), Associate Judge, concur.


text:
    Wayne E. CUMMINGS, Appellant, v. Steve DAWSON, Deborah Gianoulis, John Hogan, and WTLV—Channel 12, Appellees.
    No. AT-141.
    District Court of Appeal of Florida, First District.
    Jan. 30, 1984.

      Wayne E. Cummings, in pro. per.
    Harold B. Wahl and George D. Gabel, Jr., of Wahl & Gabel, Jacksonville, for ap-pellees.
   WIGGINTON, Judge.

Appellant appeals the trial court’s order of dismissal with prejudice of his cause of action against appellees. We affirm.

Appellant’s second amended complaint alleged (1) libel and slander and (2) “actionable harassment.” At the hearing on the motion to dismiss, the trial judge gave the following statement of his basis for granting the motion:

Well I think for lack of prosecution as far as count I is concerned, and count II doesn’t state a cause of action. And I’m not sure that count I states a cause of action because of the notice statutes.

In his written order of dismissal, the trial judge did not state his reasons for granting the motion.

The record amply supports the order of dismissal on the several grounds listed by the trial judge at the motion hearing. The file before us shows no record activity occurred for a period exceeding one year as relates to these appellees. Thus, dismissal as to both counts was proper for failure to prosecute, pursuant to Florida Rule of Civil Procedure 1.420(e). Dismissal of the libel and slander count was proper also on the ground that appellant did not show adequately that he complied with the section 770.01, Florida Statutes requirement that a plaintiff must “serve notice in writing on the defendant specifying the article or broadcast and the statements therein which he alleges to be false and defamatory” before instituting his action for libel or slander. Dismissal of count II was proper on the additional ground that “actionable harassment” is a nonexistent cause of action.

We recognize that dismissal with prejudice would have been improper if lack of prosecution had been the only basis for dismissal. See Harrison v. Griffin, 443 So.2d 499 (Fla. 1st DCA, 1984). However, since the alternative grounds stated above support dismissal with prejudice, the order of dismissal is affirmed.

LARRY G. SMITH and NIMMONS, JJ., concur.


text:
    RYDER SYSTEM, INC. and Southern Fire Adjusters, Appellants, v. Gary Lee COLLINS and Division of Workers’ Compensation, Appellees.
    No. AT-325.
    District Court of Appeal of Florida, First District.
    Jan. 30, 1984.

      H. George Kagan of Miller, Hodges & Kagan, Deerfield Beach, for appellants.
    Guy A. Gladson, Jr., Miami, for appel-lees.
   MILLS, Judge.

In this workers’ compensation action, the employer/carrier appeal from an order awarding claimant permanent impairment benefits of $47,500. We reverse.

Claimant sustained a 24 percent impairment of the body as a whole when he lost all vision in his left eye as a result of an industrial accident on 9 October 1979. The employer/carrier voluntarily paid the claimant permanent impairment benefits of $1,200 calculated correctly pursuant to Section 440.15(3)(a)l, Florida Statutes (1979).

Claimant, however, contended the 1982 increase in permanent impairment benefits (Chapter 82-237, Laws of Florida), was retroactive to 1 August 1979. The parties submitted the question to the deputy commissioner who found the 1982 increase retroactive.

We recently held in Recon Paving, Inc. v. Cook, 439 So.2d 1019 (Fla. 1st DCA 1983), that the 1982 increase in permanent impairment benefits is not retroactive. We also note that an award of permanent impairment benefits of $47,500 for the loss of one eye is excessive even under the law as most recently amended.

REVERSED.

WENTWORTH, J„ .and McCORD, Guyte P., Jr., (Ret.), Associate Judge, concur.


text:
    Allen Carl ANDERSON, Appellant, v. STATE of Florida, Appellee.
    No. AT-340.
    District Court of Appeal of Florida, First District.
    Jan. 30, 1984.
    Michael Allen, Public Defender, and P. Douglas Brinkmeyer, Asst. Public Defender, for appellant.
    Jim Smith, Atty. Gen., and Richard A. Patterson, Asst. Atty. Gen., for appellee.
   PER CURIAM.

AFFIRMED. See Valdes v. State, 443 So.2d 221 (Fla. 1st DCA 1983) and Reid v. State, 405 So.2d 500 (Fla. 2d DCA 1981).

LARRY G. SMITH, WIGGINTON and NIMMONS, JJ., concur.


text:
    Antonio Veitia BARBERIA, Appellant, v. The STATE of Florida, Appellee.
    No. 83-553.
    District Court of Appeal of Florida, Third District.
    Jan. 31, 1984.
    Bennett H. Brummer, Public Defender and Richard G. Bartmon, Sp. Asst. Public Defender, for appellant.
    Jim Smith, Atty. Gen. and Bart Bill-brough and Richard E. Doran, Asst. Attys. Gen., for appellee.
    Before BARKDULL, NESBITT and FERGUSON, JJ.
   PER CURIAM.

Affirmed. Woods v. State, 426 So.2d 69 (Fla. 1st DCA 1983); Stewart v. State, 221 So.2d 155 (Fla. 3d DCA 1969).


text:
    Jack L. LEVY and Imagineering, Inc., Appellant, v. STEPHEN L. GELLER, INC., Appellee.
    No. 83-1056.
    District Court of Appeal of Florida, Third District.
    Jan. 31, 1984.
    Giller & Kasdin, Miami, for appellant.
    Paul M. Cummings, Norman Malinski, Miami, for appellee.
    Before BARKDULL, NESBITT and FERGUSON, JJ.
   PER CURIAM.

An account stated may come into being between a creditor and a debtor where there are periodical billings for certain amounts in a regular course of dealing, and no objection is made within a reasonable time as to the amount of the bill. Daytona Bridge Company v. Bond, 47 Fla. 136, 36 So. 445 (1904); Dudas v. Dade County, 385 So.2d 1144 (Fla. 3d DCA 1980). Further, a guarantor’s refusal to execute a new personal guaranty does not constitute a revocation of one already in existence where the debt secured by the original guaranty has never been liquidated. But cf. Burt v. Community National Bank of Bal Harbour, 142 So.2d 118 (Fla. 3d DCA 1962) (guarantor’s refusal to strengthen guaranty discharged guarantor from liability where debt secured by original guaranty was liquidated, and subsequent loan was not within coverage of original guaranty).

The remaining issues question the trial court’s findings of fact or exercise of discretion, both of which find support in the record and thus cannot be disturbed on appeal. Shaw v. Shaw, 334 So.2d 13,16-17 (Fla.1976); Oceanic International Corporation v. Lantana Boatyard, 402 So.2d 507, 511-12 (Fla. 4th DCA 1981).

Affirmed.


text:
    Todd SHAW, Appellant, v. The STATE of Florida, Appellee.
    No. 83-1123.
    District Court of Appeal of Florida, Third District.
    Jan. 31, 1984.
    Bennett H. Brummer, Public Defender and Kathleen Phillips, Sp. Asst. Public Defender, for appellant.
    Jim Smith, Atty. Gen. and Marti Rothen-berg and Julie Thornton, Asst. Attys. Gen., for appellee.
    Before SCHWARTZ, C.J., and BARK-DULL and HUBBART, JJ.
   PER CURIAM.

Affirmed. Jackson v. State, 413 So.2d 112, 114 (Fla. 2d DCA 1982); § 812.-012(9)(a)l, Fla.Stat. (1981).


text:
    Tyrone WASHINGTON, Appellant, v. The STATE of Florida, Appellee.
    No. 83-1251.
    District Court of Appeal of Florida, Third District.
    Jan. 31, 1984.
    Bennett H. Brummer, Public Defender and Regina F. Zelonker, Sp. Asst. Public Defender, for appellant.
    Jim Smith, Atty. Gen. and Calvin L. Fox, Asst. Atty. Gen., for appellee.
    Before SCHWARTZ, C.J., and BARK-DULL and HUBBART, JJ.
   PER CURIAM.

Affirmed. See State v. Cumbie, 380 So.2d 1031 (Fla.1980); Smith v. State, 365 So.2d 405 (Fla. 3d DCA 1978).


text:
    The STATE of Florida, Appellant, v. James PHILLIPS, Appellee.
    No. 83-1453.
    District Court of Appeal of Florida, Third District.
    Jan. 31, 1984.

      Jim Smith, Atty. Gen. and Diane Leeds, Asst. Atty. Gen., Janet Reno, State Atty. and Anthony C. Musto, Asst. State Atty., for appellant.
    Norman Malinski, Miami, for appellee.
    Before SCHWARTZ, C.J., and BARK-DULL and HUBBART, JJ.
   PER CURIAM.

Affirmed. Carter v. State, 384 So.2d 1255 (Fla.1980); State v. Snipes, 433 So.2d 653 (Fla. 1st DCA 1983); see Diamond v. State, 270 So.2d 459 (Fla. 4th DCA 1972).


text:
    METROPOLITAN DADE COUNTY and Christopher Howard, Appellants, v. CITY OF OPA LOCKA and Morrison Assurance Company, Inc., Appellees.
    Nos. 83-1471, 83-1685.
    District Court of Appeal of Florida, Third District.
    Jan. 31, 1984.
    Robert A. Ginsburg, County Atty. and Addison- J. Meyers, Asst. County Atty., Samuel Sheradsky, Miami, for appellants.
    Steven R. Berger and Sara Lawrence; Pomeroy, Betts & Miller, Miami, for appel-lees.
    Before SCHWARTZ, C.J., and BARK-DULL and HUBBART, JJ.
   PER CURIAM.

Affirmed. F & R Builders v. Lowell Dunn Company, 364 So.2d 826 (Fla. 3d DCA 1978); Inman v. Club on Sailboat Key, Inc., 342 So.2d 1069 (Fla. 3d DCA 1977); Schonfield v. City of Coral Gables, 174 So.2d 453 (Fla. 3d DCA 1965).