author: RYDER, Judge.

text:
    John E. KIEFER and Kathleen N. Kiefer, his wife, Appellants, v. FORTUNE FEDERAL SAVINGS AND LOAN ASSOCIATION and John F. Lee and Theresa C. Lee, his wife, Appellees.
    No. 83-1740.
    District Court of Appeal of Florida, Second District.
    June 27, 1984.
    Rehearing Denied Aug. 3, 1984.

      Bruce M. Harlan, P.A., Clearwater, for appellants.
    Stephen C. Chumbris of Greene, Mann, Rowe, Stanton, Mastry & Burton, St. Pe-tersburg, and R. Timothy Peters of Goza, Hall & Peters, Clearwater, for appellee Fortune Federal Sav. and Loan Assn.
    Ronald P. Teevan of Strohauer & Tee-van, P.A., Clearwater, for appellees Lee.
   RYDER, Judge.

Cases involving mortgages containing due-on-sale clauses have been before this and other Florida courts with increasing frequency. See Weiman v. McHaffie, 448 So.2d 1127 (Fla. 1st DCA 1984); First Federal Savings and Loan Association of Winter Haven v. Quigley, 445 So.2d 1052 (Fla. 2d DCA 1984); First Home Federal Savings and Loan Association v. Nance, 436 So.2d 163 (Fla. 2d DCA 1983); Orange Federal Savings and Loan Association v. Dykes, 433 So.2d 642 (Fla. 5th DCA 1983); First Federal Savings and Loan Association of Englewood v. Lockwood, 385 So.2d 156 (Fla. 2d DCA 1980). Recently enacted federal regulations and recent case law have created confusion in the area of mortgage due-on-sale clauses. Today, we address another aspect in this area: the retroactive application of a federal regulation and a federal statute to the attempted transfer of mortgaged property.

In January 1973, John and Theresa Lee executed a mortgage on property in favor of Fortune Federal Savings and Loan Association. In September 1981, the Lees sold the mortgaged property to John and Kathleen Kiefer. Fortune Federal did not consent to the transfer of the property and, in November 1982, filed a complaint against the Lees and the Kiefers seeking foreclosure of the mortgage based on a due-on-sale clause contained in the mortgage.

Mr. and Mrs. Lee filed a three-count crossclaim against the Kiefers seeking: foreclosure of a second mortgage which had been executed by the Kiefers in favor of the Lees; damages based on the promissory note which was secured by the Kiefer/Lee mortgage; and indemnification from the Kiefers based on a provision of the Kiefer/Lee mortgage.

The Kiefers and Lees filed answers and affirmative defenses. A principal allegation made by both the Kiefers and the Lees concerns the failure of Fortune Federal to allege impairment of security in its complaint for foreclosure of the Lee/Fortune Federal mortgage. Fortune Federal replied to the impairment of security allegations, alleging that impairment need not be shown because of a Federal Home Loan Bank Board regulation pre-empting state law, and because of the enactment of the Garn-St. Germain Depository Institutions Act, Pub.L. 97-320, Oct. 15, 1982, 96 Stat. 1469, codified in 12 U.S.C. § 1701j-3 (hereinafter referred to as “Garn Act”).

A hearing on the several parties’ motions for summary judgment was held in May 1983. The trial court granted Fortune Federal’s motion, foreclosing the Lee/Fortune Federal mortgage. The Lees’ motion was granted as it pertained to the Kiefers and denied as it pertained to Fortune Federal; the court ordered foreclosure of the Lees’ second mortgage to the Kiefers. The Kief-ers’ motion for summary judgment was denied. The trial court relied on the Garn Act and the case of First Home Federal Savings and Loan Association v. Nance, supra, in ordering foreclosure of the Lee/Fortune Federal mortgage. A summary final judgment of foreclosure was subsequently entered, setting out the distribution of proceeds to be made after confirmation of the sale of the property. The Kiefers have timely appealed the orders of summary judgment and foreclosure.

The .mortgage between the Lees and Fortune Federal, containing the due-on-sale clause which is at the heart of this controversy, was executed in January 1973. Florida law requires (as it did in January 1973) a showing of impairment of security before a due-on-sale clause could be brought to bear on the mortgage. Clark v. Lachenmeier, 237 So.2d 583 (Fla. 2d DCA 1970). See also Delgado v. Strong, 360 So.2d 73 (Fla.1978), and First Federal Savings and Loan Association of Englewood v. Lockwood, supra. It should be noted that while Clark is a decision of this court, it is a decision

[Wjith statewide application since there were no conflicting Supreme Court or District Court of Appeal decisions on this point. See Chapman v. Pinellas County, 423 So.2d 578, 580 (Fla. 2d DCA 1982); Dillon v. Chapman, 404 So.2d 354 (Fla. 5th DCA 1981); Stanfill v. State, 384 So.2d 141 (Fla.1980); and State v. Hayes, 333 So.2d 51 (Fla. 4th DCA 1976).

Weiman v. McHaffie, supra. Thus, under Clark, before Fortune Federal could enforce its due-on-sale clause it had to show an impairment of security.

An issue raised in this appeal, however, concerns the effect on Florida law of Fidelity Federal Savings and Loan Association v. de la Cuesta, 458 U.S. 141, 102 S.Ct. 3014, 73 L.Ed.2d 664 (1982). In de la Cuesta, the Supreme Court held that a regulation of the Federal Home Loan Bank Board, 12 CFR § 545.8-3(f) (1982), preempts conflicting state laws to which federal savings and loan associations (such as appellant Fortune Federal) were subject. It was noted in de la Cuesta that the pertinent California law “permitted the unrestricted exercise of due-on-sale clauses upon outright transfer of security property” at the time that the subject deeds of trust were executed. 102 S.Ct. at 3031, n. 24. After June 8, 1976, the effective date of section 548.8 — 3(f), see Quigley, the California Supreme Court conditioned the exercise of due-on-sale clauses on a showing that enforcement of such clauses is reasonably necessary to protect against impairment of security or the risk of default. Wellenkamp v. Bank of America, 21 Cal.3d 943, 148 Cal.Rptr. 379, 582 P.2d 970 (1978), cited in de la Cuesta, 102 S.Ct. at 3020. De la Cuesta held that the Wellen-kamp doctrine was “pre-empted by a previously promulgated federal regulation” precluding application of the doctrine to federal savings and loan institutions. Enforcement of the due-on-sale clause deprived the appellees in de la Cuesta of no vested rights under California law. 102 S.Ct. at 3031, n. 24.

De la Cuesta does not control our disposition of the present case. As noted, at the time of the execution of the Lee/Fortune Federal mortgage, prior to the 1976 effective date of Federal regulation § 545.8-3(f), the applicable Florida law required a showing of impairment of security before enforcement of a due-on-sale clause could take place. Clark. De la Cuesta did not decide the issue involved in the case sub judice. See 102 S.Ct. at 3031, n. 24; Weiman; Orange Federal Savings and Loan Association v. Dykes, 433 So.2d 642 (Fla. 5th DCA 1983), on motion for leave to file motion for rehearing and/or clarification, 444 So.2d 1152 (Fla. 5th DCA 1984). Cf. First Federal Savings and Loan Association of Winter Haven v. Quigley; First Home Federal Savings and Loan Association v. Nance (in Quigley and Nance, the mortgages were executed after the 1976 effective date of section 545.8 — 3(f); de la Cuesta obviated the need for a showing of impairment of security for enforcement of the due-on-sale clauses involved in those cases).

We agree with our sister court’s decision in Weiman v. McHaffie that de la Cuesta “merely requires the enforcement of due-on-sale clauses (without a showing of impairment of the lender’s security) if a federal mortgage is involved and the mortgage was executed after the effective date of the federal regulation” (emphasis in original). In the present case, as the mortgage was executed prior to the effective date of the Federal regulation, and de la Cuesta does not require retroactive application of the regulation, de la Cuesta and Nance do not support the trial court’s decision. Furthermore, the fact that the Kief-ers sought to assume the Lee/Fortune Federal mortgage after the effective date of the regulation does not change our decision; the date of the execution of the mortgage is the controlling factor in relation to section 545.8-3(f).

The next issue to be considered is whether the Garn Act supports the trial court’s decision. We hold that it does not.

The transfer from the Lees to the Kiefers occurred in September 1981; this was prior to the enactment of the Garn Act. It cannot be said that Congress intended for the Garn Act to apply to transfers which occurred prior to the Act’s enactment, and we decline to so hold. Generally, a statute operates prospectively unless the legislative intent was clear that the Act be construed retrospectively. See Thayer v. State, 335 So.2d 815 (Fla.1976); 30 Fla.Jur. Statutes §§ 150-151 (1974). In fact, Congressional intent seems to favor a prospective application of the Garn Act. See subsection (c)(2)(b) of the Act, and Note, Garn-St. Germain: Congress Preempts Due on Sale — Fills Void Left by De La Cuesta, 12 Stetson L.Rev. (1983). Our position that the Act is not retroactive has support in the case of Home Savings Bank of Upstate New York v. Baer Properties, Ltd., 92 A.D.2d 98, 460 N.Y.S.2d 833 (1983), wherein that court wrote:

It is well settled that a statute has only prospective effect unless Congress clearly manifests an intent for the statute to have retroactive effect (see, e.g., United States v. Security Ind. Bank, 459 U.S. 70, 103 S.Ct. 407, 413, 74 L.Ed.2d 235).

Id. 460 N.Y.S.2d at 835. We perceive no clear manifestation of an intent that the Garn Act is retroactive. See also Viereck v. Peoples Savings and Loan Association, 343 N.W.2d 30 (Minn.1984) and Scappaticci v. Southwest Savings and Loan Association, 135 Ariz. 456, 662 P.2d 131 (1983).

Under the facts of the case before us, the transfer of the property from the Lees to the Kiefers occurred over one year prior to the effective date of the Garn Act. To read the Garn Act as obviating the need of the lender to show an impairment of security prior to foreclosure of its mortgage, where the transfer of the encumbered property took place prior to the enactment of the Garn Act, would be a strained construction of the Act and the Congressional intent behind the Act. The presumption of the prospective operation of the Act has not been overcome by any clear and unequivocally expressed intent by Congress that the Act should operate retrospectively.

We therefore hold that the trial court erroneously forclosed the Lee/Fortune Federal mortgage and the Lee/Kiefer second mortgage. The summary judgments entered in favor of Fortune Federal and in favor of the Lees are erroneous and are hereby reversed. On remand, the trial court must determine whether Fortune Federal has shown impairment of its security interest in the property because of the transfer from the Lees to the Kiefers. Only if such impairment is shown may Fortune Federal enforce the due-on-sale clause in its mortgage. Similarly, foreclosure of the Lee/Kiefer mortgage may not be upheld at this point in the proceedings.

Pursuant to Florida Rule of Appellate Procedure 9.030(a)(2)(A)(v), we certify to the Florida Supreme Court the following question as one of great public importance:

IS THE GARN-ST. GERMAIN ACT RETROACTIVE IN APPLICATION AS IT PERTAINS TO TRANSFERS MADE PRIOR TO THE EFFECTIVE DATE OF THE ACT?

HOBSON, A.C.J., and LEHAN, J., concur.

      . We reached that conclusion in Freedom Savings and Loan Association, Inc. v. LaMonte, 448 So.2d 51 (Fla. 2d DCA 1984).

      . Of course, our opinion does not apply to pre-1976 mortgages that are transferred after Octo-her 15, 1982.


source: Caselaw Access Project

author: SCHOONOVER, Judge.

license: Public Domain

text:
    Simon E. PARKS, Appellant, v. Carol ZITNIK, Appellee.
    No. 83-1312.
    District Court of Appeal of Florida, Second District.
    June 29, 1984.
    Rehearing Denied July 27, 1984.

      Charles R. Scully, St. Petersburg, for appellant.
    Paul Castagliola of Riden, Watson & Goldstein, P.A., St. Petersburg, for appel-lee.
   SCHOONOVER, Judge.

The appellant, Simon E. Parks, has appealed from a final judgment in favor of the appellee, Carol Zitnik. We reverse.

This action arose out of a personal relationship between the parties. During the course of this relationship, a duplex and a house were acquired. Although legal title to the real estate was placed in appellee’s name, it appears the appellant contributed both money and labor towards the acquisition and repair of the duplex. The appellant also contributed over $10,000 towards the purchase of the house.

After the relationship ended, the appellee filed a six-count complaint against the appellant, and the appellant filed a five-count counterclaim.

A nonjury trial was held on the portion of appellee’s complaint that alleged an action to quiet title, and causes of action for battery, intentional infliction of emotional distress, negligent infliction of emotional distress, and recovery of real property. The case was also tried on the portion of appellant’s counterclaim that alleged an action to quiet title and impose a resulting trust, and causes of action for constructive trust, partition and constructive trust, partition and resulting trust, and recovery of real property.

During the course of the trial, appellee’s attorney asked the appellant whether he had ever been convicted of a crime. When he responded affirmatively, he was then asked how many times. After appellant stated he thought “two or three, four; I don’t know exactly,” he was then asked whether he was currently on probation for extortion, the name of his victim, and what he had been accused of extorting. Later in the trial he was asked whether he had been charged with battery and the number of times he had been charged. He was also asked whether, in addition to the extortion, he had ever been charged with grand theft. The appellant’s objections were overruled, and his motion fora jnistrial was denied.

After a nonjury trial, a final judgment was entered in favor of the appellee awarding her $15,000 in compensatory damages, $15,000 in punitive damages, and sole legal and equitable title to both the house and the duplex. The trial court ruled that the appellant had not proven any counts of his counterclaim. This timely appeal followed.

We find that the trial court erred in allowing the appellant to be questioned concerning the number of times he had been convicted of a crime, the nature of those crimes, the victims of the crimes, and the punishment he received, as well as in allowing questions concerning misdemeanors, e.g., battery, with which the appellant had been charged.

Section 90.610(1), Florida Statutes (1981), provides in part:

(1) A party may attack the credibility of any witness, including an accused, by evidence that the witness has been convicted of a crime if the crime was punishable by death or imprisonment in excess of 1 year under the law under which he was convicted, or if the crime involved dishonesty or a false statement regardless of the punishment....

This statute applies to civil as well as criminal proceedings. McArthur v. Cook, 99 So.2d 565 (Fla.1957); Watson v. Campbell, 55 So.2d 540 (Fla.1951).

The appellee’s initial question concerning convictions of “crimes” was improper. A person attempting to impeach the character of a witness, or a party, may no longer ask the witness whether he has ever been convicted of a crime. The question would have been proper prior to July 1, 1979; however, section 90.610(1) prohibits this question because it restricts the crimes that may be considered when attempting to impeach a witness. Cummings v. State, 412 So.2d 436 (Fla. 4th DCA 1982). Under the current statute, a witness may be asked whether he has ever been convicted of either a felony, or of a crime involving dishonesty or a false statement regardless of the punishment. Cummings. By requiring the appellant to answer questions concerning crimes in general, the appellant was forced to reveal that he had been convicted of one or more misdemeanors, e.g., battery. This examination regarding irrelevant criminal incidents was clearly improper. King v. State, 431 So.2d 272 (Fla. 5th DCA 1983).

Assuming arguendo, appellee’s initial question had been properly phrased, appellee should have asked no further questions once the appellant admitted he had been convicted of two, three, or four crimes, unless the answer was untruthful. Sneed v. State, 397 So.2d 931 (Fla. 5th DCA 1981). If untruthful, the appellant could have been impeached by the introduction of proper records revealing such convictions. Rommell v. Firestone Tire & Rubber Co., 394 So.2d 572 (Fla. 5th DCA 1981).

Appellee next asked the appellant about the nature of his convictions. This also was improper. The statute does not permit that question because any additional evidence regarding the witness’ credibility gained from the answer would not compensate for its possible prejudicial effect on the mind of the trier of fact. Reeser v. Boats Unlimited, Inc., 432 So.2d 1346 (Fla. 4th DCA 1983).

The appellee’s questions regarding the nature of the crimes for which appellant was previously convicted and the punishment for those crimes were not relevant to any issue in this case. See Sneed.

Finally, we are unaware of any authority that permits a witness or a party to be questioned concerning crimes with which they may have been charged but of which they were not convicted.

Appellee’s entire line of questioning also is inadmissible under section 90.-404(2)(a), Florida Statutes (1981). Appellee failed to lay any predicate showing his questions would produce similar fact evidence of other crimes, wrongs, or acts relevant to proving a material fact in issue. Evidence of other crimes, wrongs, or acts is inadmissible if it is used solely to prove bad character or propensity. § 90.404(2).

The appellee contends that any error committed by the trial court was harmless because the case was tried by the court rather than by a jury. Since the parties did not request a jury trial, the trial judge had to determine the credibility of the parties. Jalbert v. State, 95 So.2d 589 (Fla.1957). Due to the nature of this case, the credibility of the parties was crucial and therefore we cannot hold the error was harmless. Had the trial judge stated that he based his findings only upon certain evidence and that he disregarded the challenged evidence, the error, if any, in the admission of such evidence could have been determined harmless. Capitoli v. State, 175 So.2d 210 (Fla. 2d DCA 1965).

Where the proof of guilt is so convincing that a person would clearly have been found guilty even without collateral evidence introduced in violation of the evidence code, the violation of the code may be considered harmless. In the case sub judice, however, because of the importance of the credibility of the witnesses under the particular facts of this case, we cannot say the evidence in favor of the appellee was so clear and convincing that introduction of the challenged evidence was harmless. A trial judge is presumed to rest his judgment on admissible evidence and to disregard inadmissible evidence, United States v. Masri, 547 F.2d 932 (5th Cir.), cert. denied, 434 U.S. 907, 98 S.Ct. 309, 54 L.Ed.2d 195 (1977), but in view of the specific findings of admissibility in this case, we cannot hold the trial court disregarded inadmissible evidence.

We accordingly reverse and remand for new trial.

BOARDMAN, A.C.J., and DANAHY, J., concur.


author: DANAHY, Judge.

text:
    Jack W. BRIDENTHAL, Appellant, v. STATE of Florida, Appellee.
    No. 83-577.
    District Court of Appeal of Florida, Second District.
    July 6, 1984.
    Rehearing Denied July 25, 1984.

      Jerry Hill, Public Defender, and William H. Pasch, Asst. Public Defender, Bartow, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Davis G. Anderson, Jr., Asst. Atty. Gen., Tampa, for appellee.
   DANAHY, Judge.

The defendant appeals his convictions on seven counts of grand larceny, eleven counts of grand theft, and three counts of common law cheat. We find no merit in any of the issues raised by the defendant.

However, in the separate appeals of the defendant’s codefendants, this court has issued an opinion reversing the code-fendants’ convictions on the seven larceny counts on the ground that the larceny counts are barred by the statute of limitations. Maguire v. State, 453 So.2d 438 (Fla. 2d DCA 1984). The statute of limitations is a jurisdictional issue and this court is not foreclosed from considering that issue notwithstanding that the issue was not raised at the trial or appellate level. Mead v. State, 101 So.2d 373 (Fla.1958).

Accordingly, we reverse the defendant’s convictions on counts 2 through 5 and 18 through 20 in case no. 81-499 as being barred by the statute of limitations. We affirm the defendant’s convictions in all other respects.

REVERSED IN PART and AFFIRMED IN PART.

BOARDMAN, A.C.J., and LEHAN, J., concur.


text:
    Jack Melvin MAGUIRE, Kathleen Ann Maguire, and American Ambulance, Inc., Appellants, v. STATE of Florida, Appellee.
    Nos. 83-563, 83-565 and 83-566.
    District Court of Appeal of Florida, Second District.
    June 29, 1984.

      H. Dohn Williams, Jr., of Varón, Bogen-schutz, Williams & Gulkin, P.A., Hollywood, for appellants.
    Jim Smith, Atty. Gen., Tallahassee, and William E. Taylor, Asst. Atty. Gen., Tampa, for appellee.
   DANAHY, Judge.

The defendants appeal their convictions on multiple counts of larceny, theft and common law cheat. All of the alleged offenses involved a contract for ambulance service between Collier County and American Ambulance, Inc. The defendants in these consolidated appeals are American Ambulance, Inc., Jack Maguire (owner and chief officer of American Ambulance, Inc.), and Kathleen Ann Maguire (bookkeeper of American Ambulance, Inc.). The state charged that over a period from 1976 to 1980, the defendants wrongfully obtained money from Collier County by submitting false monthly financial statements to the county on the basis of which the county made subsidy payments to American Ambulance, Inc. The defendants were variously convicted on twelve counts of grand theft, seven counts of larceny by fraud, and three counts of common law cheat. They have presented nine issues for our consideration, one of which we find to have merit. We agree that the seven charges of larceny are barred by the time limitations set forth in section 775.15, Florida Statutes (1983).

Section 775.15(2)(b) applies to the larceny charges and requires that prosecution be commenced within three years after the offense is committed. The charging document shows on its face that the larceny charges in this case were not filed against these defendants until after the expiration of three years from the dates alleged in the various larceny counts. Therefore, the state must rely on subsection (3) of section 775.15, which provides as follows:

(3) If the period prescribed in subsection (2) has expired, a prosecution may nevertheless be commenced for:
(a) Any offense a material element of which is either fraud or a breach of fiduciary obligation, within one year after discovery of the offense by an aggrieved party or by a person who has a legal duty to represent an aggrieved party and who is himself not a party to the offense, but in no case shall this provision extend the period of limitation otherwise applicable by more than three years.

The defendants vigorously argue that Collier County officials knew, long before the year preceding the date the charges were brought, that the defendants were engaging in the activities which the state later claimed to constitute larceny. But it is not the defendants’ burden to establish that the state could not rely on the three-year extension set forth in 775.-15(3)(a); rather, the burden is on the state to establish the date of the discovery of the offense by the aggrieved party, in this case Collier County. In its brief, the state advises us that the question of who was the aggrieved party, or when with specificity that party knew, never was resolved or even addressed to the trial court. We take that to be an admission by the state that it failed to establish the crucial date required for the extended limitations period of section 775.15(3)(a). When the issue is raised, the burden is on the state to establish that an offense is not barred by the statute of limitations. Sturdivan v. State, 419 So.2d 300 (Fla.1982); State v. King, 282 So.2d 162 (Fla.1973).

The state argues that the defendants did not raise the statute of limitations issue at the trial level or, if they did, they waived it later. We find no merit in that argument. A criminal defendant need not raise the bar of the statute of limitations and his failure to do so does not preclude appellate consideration of the issue. Mead v. State, 101 So.2d 373 (Fla.1958). The defendants in this case filed motions to dismiss based on the statute of limitations, and prevailed as to several counts in the charging documents. Later they entered into a stipulation with the state in which they agreed “to waive any and all defects in the indictments in the above-styled cases.” We decline to interpret that waiver as a waiver of the statute of limitations issue.

We conclude that counts 2 through 5 and 18 through 20 in Case No. 81-499 are barred by the statute of limitations and reverse as to those counts. We affirm as to all other parts.

REVERSED IN PART AND AFFIRMED IN PART.

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


author: PER CURIAM.

text:
    Huey L. WRIGHT, Appellant, v. STATE of Florida, Appellee.
    No. 82-2055.
    District Court of Appeal of Florida, Fourth District.
    July 10, 1984.
    Rehearing Denied Aug. 15, 1984.

      George T. Pallas of Law Offices of William A. Meadows, Jr., South Miami, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Max Rudmann, Asst. Atty. Gen., West Palm Beach, for appellee.
   PER CURIAM.

This is an appeal from multiple convictions for securities fraud. We affirm in part and reverse in part.

Although we reject appellant’s claim that the trial court erred in failing to direct a verdict of acquittal, we reverse appellant’s conviction of organized fraud as alleged in Count I of the information because we find that the trial court erroneously permitted the state, over the objection of the appellant, to introduce evidence concerning alleged victims and transactions not alleged in the information. Some of these transactions involved persons not alleged as victims in the information and occurred at times before the organized fraud statute even existed. In addition to being irrelevant to the charges actually filed, the admission of this evidence appears also to have been a violation of the constitutional prohibitions against double jeopardy and ex post facto laws. Cf. Raulerson v. State, 358 So.2d 826 (Fla.1978), cert. denied, 439 U.S. 959, 99 S.Ct. 364, 58 L.Ed.2d 352 (1978) and United States v. Hall, 632 F.2d 500 (5th Cir.1980). We reject the state’s late claim, expressly not relied on in the trial court, that this evidence was admissible under the provisions of section 90.404, Florida Statutes (1981), providing for the admission of evidence of other crimes having a similar factual pattern. Because of the erroneous admission of this evidence appellant is entitled to a new trial as to Count I.

We affirm appellant’s other convictions and reject his claims as to the insufficiency of the evidence to prove a security fraud as to the alleged victims involved and also his claim of error as to the trial court’s rulings related to the prosecutor’s closing argument.

Accordingly, we affirm in part and reverse in part and remand this cause for further proceedings in accord herewith.

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


author: FERGUSON, Judge.

text:
    WEBSTER & MOOREFIELD, P.A., Garth A. Webster and Harry A. Ahlman, Appellants, v. CITY NATIONAL BANK OF MIAMI, as Successor Guardian of the Property of Mary C.W. Hand; Alice Francis Wolf, next of kin to Mary C.W. Hand, Appellees.
    Nos. 83-1197, 83-1224.
    District Court of Appeal of Florida, Third District.
    July 10, 1984.

      Webster & Moorefield, Cristol, Mishan & Sloto and Julie Feigeles and Garth Webster, Miami, for appellants.
    Paul, Landy, Beiley & Harper and Robert M. Sondak, Miami, for appellees.
    Before BARKDULL, BASKIN and FERGUSON, JJ.
   FERGUSON, Judge.

Appellant, Harry A. Ahlman, seeks review of an order which requires that he (1) return a “gift” received from his former ward, (2) reimburse the ward’s estate for certain expenses, and (3) pay his own attorney’s fees in connection with the defense of a petition for his removal as voluntary guardian of the ward. His attorneys have joined in this appeal on the third point. Alice Francis Wolf, niece of the deceased ward, cross-appeals from those parts of the order awarding a guardian fee to Mr. Ahl-man, and refusing to compel Mr. Ahlman to reimburse the estate for attorney’s fees already paid without prior court approval.

Mr. Ahlman, a forty-one-year-old unmarried interior decorator, befriended the ninety-five-year-old Mary C.W. Hand, a widow living on Miami Beach. On September 22, 1980, the trial court granted Mrs. Hand’s petition to appoint Mr. Ahlman as voluntary guardian of her property. The order of appointment was entered on October 2, 1980. On October 17, 1980, letters of guardianship issued.

On November 4, 1980, Mrs. Hand suffered a severe stroke. Her niece, Mrs. Wolf, petitioned the court on November 9, 1980, to remove Mr. Ahlman as voluntary guardian pursuant to Section 744.474, Florida Statutes (1983), alleging fraud, abuse of powers, and waste, embezzlement, or mismanagement of the ward’s property. The niece subsequently filed both a petition for determination of Mrs. Hand’s competency and a petition for the appointment of a guardian of the person and property of Mrs. Hand under Sections 744.331 and 744.-334. On April 28, 1981, the trial court adjudicated Mrs. Hand incompetent and terminated Mr. Ahlman’s appointment as voluntary guardian as of April 21,1981, the date of the hearing. Mr. Ahlman appealed his termination. This court affirmed. Ahl-man v. Wolf, 413 So.2d 787 (Fla. 3d DCA 1982). After mandate issued, Mr. Ahlman and Mrs. Wolf filed various motions in the trial court. This appeal is brought from the rulings on those motions.

First, Mr. Ahlman contends that the trial court erred in ordering him to return a $25,000 “gift” received from the ward on October 16, 1980. The trial court found that Mr. Ahlman accepted the gift “at a time when he was guardian and legally incapable of receiving a gift from the ward.” Mr. Ahlman argues that he was entitled to accept the gift at that time because letters of guardianship had not yet issued. We disagree. A guardianship becomes effective when the order of appointment is entered, see Section 744.344, and the failure to issue letters of guardianship does not affect the validity of that order. § 744.313. Because Mr. Ahlman was the guardian of Mrs. Hand’s property at the time he received the $25,000, he was, as the trial court found, legally incapable of accepting the gift. See § 744.441(17) (involuntary guardian may make gifts of ward’s property to members of ward’s family only upon court approval); see also § 744.341(2) (voluntary guardian has same duties and responsibilities as involuntary guardian of property).

Further, the ward was without the capacity to convey her property to the guardian as a gift. We reject the guardian’s contention that pursuant to Section 744.341(1), a ward may be competent to give her property to the guardian as a gift, without court approval, even though senility has rendered her incapable of managing her estate. The statutory requirement that the petitioner for a voluntary guardianship understand the nature of the relationship and the delegation of power over her estate does not mean that the petitioner-ward has the capacity to resist improper influence and otherwise act intelligently in caring for her property.

The guardian’s argument on this point defies the entire statutory scheme. The guardian’s general duties are defined in Section 744.377, and other statutes detail specifically what the guardian may do with respect to the ward’s property with court approval, Section 744.441, and without court approval, Section 744.444. Certainly if a nonrelated guardian is forbidden to borrow or purchase from the ward, Section 744.454, it goes without saying that a nonrelated guardian cannot take or accept the ward’s property and claim it as a gift. The trial court correctly ordered Mr. Ahl-man to return the $25,000 to Mrs. Hand’s estate.

Next, Mr. Ahlman challenges that portion of the lower court’s order which directs him to reimburse the estate for damages incurred in connection with an attempted sale of the ward’s personal property. The court found that he wrongfully contracted to sell furniture from Mrs. Hand’s New Jersey home to a New York auction house, in violation of the explicit terms of the guardianship order and without court approval. Mr. Ahlman argues that the arrangements for the sale began at Mrs. Hand’s insistence, prior to the voluntary guardianship. The undisputed facts, however, are that Mr. Ahlman gave the “go-ahead” to the auction house on November 30, 1980, after the guardianship had commenced. Yet, Mr. Ahlman did not petition the court for approval until December 8, 1980, and again on January 16, 1981. The court denied both petitions. Under Section 744.441(12), a guardian may sell the personal property of the ward only with the approval of the court. The damages, which consisted mainly of transportation and storage charges and also included costs and attorney’s fees incurred in resolving the dispute that followed, were properly taxed against Mr. Ahlman.

Third, Mr. Ahlman and his attorneys appeal the trial court’s denial of attorney’s fees incurred in defending against Mrs. Wolf’s petition to remove Mr. Ahlman as voluntary guardian. Mr. Ahlman had petitioned the court for approximately $18,000 in attorney’s fees after the disposition of his first appeal. Prior to the appeal, Mr. Ahlman wrote checks from the guardianship estate totalling $34,586 for attorney’s fees and $1,197 for costs. Mrs. Wolf, on her cross-appeal, contends that the trial court should have ordered Mr. Ahlman to reimburse the estate for the fees and costs paid earlier, claiming that a guardian may not recover fees for defending against a removal petition. The trial court found that the amount paid to the attorneys for services rendered prior to the earlier appeal represented the fair value of services which benefitted the guardianship estate, and that the additional unpaid sums requested by Mr. Ahlman were for services which did not benefit the estate.

A guardian who, in good faith, defends against a removal petition, may be awarded expenses to include costs and attorney’s fees. Dearborn v. Batten, 64 N.H. 568, 15 A. 149 (1888); In re Nelson’s Estate, 17 Wash.2d 33, 134 P.2d 935 (1943). See also Stabinski v. Meyer, Weiss, Rose, Arkin, Shampanier, Ziegler & Barash, P.A., 439 So.2d 330 (Fla. 3d DCA 1983) (guardian is entitled to attorney’s fees from trust consisting of former guardianship assets for defending against petition alleging mismanagement of ward’s assets where petition was substantially without merit; contrary holding would require guardian to defend claims relating to his fiduciary capacity at his own expense). In this case, the trial court found that attorney’s fees and costs already paid from the estate by Mr. Ahlman were for a good faith defense of the removal petition. In refusing to award the additional fees requested by Mr. Ahlman, however, the trial court implicitly found a lack of good faith in defending the removal petition after the ward had become incompetent. A trial court has broad discretion in determining the amount of attorney’s fees to be awarded. Tietig v. Kusik, 279 So.2d 890, 891 (Fla. 3d DCA 1973). Here, neither party has carried their burden of showing that this discretion has been abused.

Finally, Mrs. Wolf cross-appeals the award of $10,000 to Mr. Ahlman for services performed as guardian. We find no clear showing of abuse of discretion and affirm the award. We remand, however, for the limited purpose of clarifying the order to reflect whether this sum is to be offset by (1) any part of the fees paid by Mr. Ahlman to himself for his duties as social secretary during the seven months that he also acted as guardian, and (2) the amount Mr. Ahlman owes the estate for damages incurred in the attempted sale, without court approval, of Mrs. Hand’s personal property.

Affirmed and remanded for clarification.

      . Section 744.341(1), Florida Statutes (1983) states:
      (1) Without adjudication of incompetency, the court shall appoint a guardian of the estate of a resident or nonresident person who, though mentally competent, is incapable of the care, custody, and management of his estate by reason of age or physical infirmity and who has voluntarily petitioned for the appointment. The petition shall be accompanied by a certificate of a licensed physician that he has examined the petitioner and that the petitioner is competent to understand the nature of the guardianship and his delegation of authority. Notice of hearing on any petition for appointment and for authority to act shall not be required, except that notice shall be given to the ward and to any person to whom the ward requests that notice be given. Such request may be made in the petition for appointment of guardian or in a subsequent written request for notice signed by the ward.


text:
    Ysidro Y. DeLaPAZ, Appellant, v. STATE of Florida, Appellee.
    No. 82-1690.
    District Court of Appeal of Florida, Fourth District.
    July 11, 1984.
    Rehearing Denied Aug. 15, 1984.
    Kenneth E. Padgett, Jr., Yero Beach, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Lydia M. Valenti and Richard G. Bartmon, Asst. Attys. Gen., West Palm Beach, for appellee.
   PER CURIAM.

DeLaPaz was convicted of possession of cannabis in an amount exceeding 20 grams, sentenced to five years imprisonment and fined $5,000 under section 775.0835, Florida Statutes (1983). On appeal he argues, inter alia, that the trial court erred in denying his motion to suppress because the affidavit supporting the search warrant was facially insufficient to establish probable cause. We disagree.

DeLaPaz was arrested together with co-defendants Charles Zaffarese and Guy Brown after police executed a search warrant at the Brown residence and seized over 100 pounds of marijuana from neighboring land. The affidavit supporting the warrant was signed by a police officer who stated that the source of his information was a confidential informer who has provided reliable information to him on eight previous occasions. The informer said Guy Brown told him he is currently in possession of 300 pounds of marijuana, and offered to sell marijuana to him. There is no indication that the informer’s allegations were corroborated in any way by the affi-ant.

As a preliminary matter, we reject the state’s contention that DeLaPaz has no standing to challenge the validity of the warrant authorizing the search of Guy Brown’s home. DeLaPaz’s unrebutted testimony was that he had been residing at the Brown home for two to three months prior to the arrest in a room provided for his exclusive use where he stored personal belongings. Such evidence sufficiently demonstrated his privacy interest in the Brown home for purposes of establishing standing to challenge the warrant. See Walker v. State, 433 So.2d 644 (Fla. 2d DCA 1983); State v. Leavitt, 427 So.2d 211 (Fla. 3d DCA 1983). We do not think a different result is required by the fact that DeLaPaz stayed at the Brown home only one to three days a week and lived with siblings on other days during the time period in question. See Walker, supra; Shade v. State, 400 So.2d 850 (Fla. 1st DCA 1981); cf. State v. Mallory, 409 So.2d 1222 (Fla. 2d DCA), petition for rev. denied, 418 So.2d 1280 (Fla.1982). Thus, we conclude that DeLaPaz has standing to challenge the validity of the warrant authorizing the search of the Brown home.

On the merits, we find that the facts stated in the supporting affidavit sufficiently established probable cause. Traditionally, the sufficiency of a supporting affidavit was tested by inquiring into whether the affidavit detailed facts showing (1) the informer’s reliability, and (2) the basis for the informer’s conclusions. See Spinelli v. United States, 393 U.S. 410, 89 S.Ct. 584, 21 L.Ed.2d 637 (1969); Aguilar v. Texas, 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723 (1964). Recently, however, the United States Supreme Court abandoned the two prong Aguilar-Spinelli test and adopted a “totality of circumstances” approach to probable cause. Illinois v. Gates, 462 U.S. 213, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983). Under Gates, the two factors of the Aguilar test remain relevant considerations, but it is no longer necessary to make an independent showing on both prongs of the test; rather:

The task of the issuing magistrate is simply to make a practical, commonsense decision whether, given all the circumstances set forth in the affidavit before him, including the ‘veracity’ and ‘basis of knowledge’ of persons supplying hearsay information there is a fair probability that contraband or evidence of a crime will be found in a particular place. And the duty of reviewing courts is simply to ensure that the magistrate had a ‘substantial basis for ... concluding]’ that probable cause existed.

Gates, 103 S.Ct. at 2332.

In applying the more liberal Gates test to the case at bar, we conclude that the affidavit was sufficient to support the search warrant. The facts set forth in the affidavit are clearly sufficient to demonstrate the reliability of the informant, as it is alleged that the informer provided reliable information to the affiant police officer in eight previous occasions, resulting in six arrests and prosecutions. Although the affidavit does not show that the allegations of the informer were verified by the affiant, we think the affidavit satisfies the Gates “totality of the circumstances” test for probable cause. In reaching that conclusion, we observe that the informer alleged that Brown not only offered to sell him marijuana, but also allegedly stated that the contraband was presently stored at his residence. We find that such allegations provided the issuing magistrate with a “substantial basis” for concluding that there existed a fair probability that marijuana would be found at Brown’s home. Cf. State v. VanWinkle, 444 So.2d 1005 (Fla. 5th 1984) [9 FLW 167]. But see Milete v. State, 439 So.2d 337 (Fla. 3d DCA 1983); Wallace v. State, 442 So.2d 1066 (Fla. 1st DCA 1983). Accordingly, we affirm the trial court’s denial of DeLaPaz’s motion to suppress.

We have reviewed the other alleged errors argued in this appeal and find them meritless. The conviction and sentence are therefore affirmed.

However, we strike the $5,000 fine imposed against DeLaPaz under section 775.-0835, Florida Statutes (1983), because that statute authorizes a fine only where a person is convicted of a crime resulting in death or injury to another person. See Moore v. State, 422 So.2d 1069 (Fla. 2d DCA 1982). We are nonetheless cognizant that a $5,000 fine would have been authorized under section 775.083(l)(c), and therefore remand this case to the trial court for resentencing in order to provide it with an opportunity to impose a fine against DeLa-Paz under the appropriate statutory authority.

AFFIRMED IN PART; REVERSED IN PART.

HURLEY and WALDEN, JJ„ and NORRIS, WILLIAM A., JR., Associate Judge, concur.

      . Subsequent to the preparation of this opinion, the United States Supreme Court announced its decision in United States v. Leon, — U.S.—, 104 S.Ct. 3405, 82 L.Ed.2d 677 (1984), which provides additional support for an affirmance.


author: PER CURIAM. HURLEY, Judge,

text:
    Buddy ROLLISON, Appellant, v. STATE of Florida, Appellee.
    No. 83-545.
    District Court of Appeal of Florida, Fourth District.
    July 11, 1984.
    Rehearing Denied Aug. 8, 1984.
    Richard L. Jorandby, Public Defender, and Richard B. Green, Asst. Public Defender, West Palm Beach, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Joan Fowler Rossin, Asst. Atty. Gen., West Palm Beach, for appellee.
   PER CURIAM.

We affirm but without prejudice to appellant’s right to apply for relief under the terms of Rule 3.850, Florida Rules of Criminal Procedure, as concerns his sentence.

AFFIRMED.

LETTS and WALDEN, JJ., concur.

HURLEY, J., dissents with opinion.

HURLEY, Judge,

dissenting.

The trial court ruled that the defendant lacked standing to contest the search of a trailer in which he had resided, on a periodic basis, for over two months. This ruling, in my view, was clearly erroneous. See DeLaPaz v. State, 453 So.2d 445 (Fla. 4th DCA 1984); Walker v. State, 433 So.2d 644 (Fla. 2d DCA 1983); Shade v. State, 400 So.2d 850 (Fla. 1st DCA 1981); Brady v. State, 394 So.2d 1073 (Fla. 4th DCA 1981). The search uncovered a rifle, bank bags and money; all of which were introduced at trial. Given the relationship between the crime (armed robbery) and the goods recovered, I am not able to say that the error was harmless beyond a reasonable doubt. See Chapman v. California, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967). Thus, I respectfully dissent.


author: GLICKSTEIN, Judge. ANSTEAD, Chief Judge,

text:
    Margarita HERNANDEZ, as Personal Representative of the Estate of Rafael Hernandez, Jr., deceased; Margarita Hernandez, individually; Stanley Hernandez; Ahiza Hernandez; Gates Learjet Corp., a foreign corporation; and Linda Moyer, as Personal Representative of the Estate of Glenn Charles Moyer, deceased, Appellants, v. BASS AVIATION, INC., a foreign corporation; Titanic Aircraft Sales and Service, Ltd., a foreign corporation; and The Insurance Company of the State of Pennsylvania, a foreign corporation, Appellees.
    No. 83-366.
    District Court of Appeal of Florida, Fourth District.
    July 11, 1984.
    Rehearing Denied Aug. 21, 1984.

      Ann Thomas and Carolyn Pickard of Thornton, David & Murray, P.A., Miami, for appellant, Gates Learjet Corporation.
    Michael K. McLemore of Kimbrell, Ham-ann, Jennings, Womack, Carlson & Knis-kern, P.A., Miami, for appellant, Linda Moyer.
    Thomas R. Trompeter of Casuso & Trom-peter, South Miami, for appellants, Margarita, Stanley and Ahiza Hernandez.
    Donna S. Catoe of Peters, Pickle, Flynn, Niemoeller & Downs, Miami, for appellees.
   GLICKSTEIN, Judge.

This is an appeal from an order which dismissed Bass Aviation from the action because of lack of in personam jurisdiction and insufficient minimum contacts by that defendant with the State of Florida. We reverse and remand.

We held in Cosmopolitan Health Spa, Inc. v. Health Industries, Inc., 362 So.2d 367, 368 (Fla. 4th DCA 1978):

In order to allow the assertion of in personam jurisdiction over a defendant outside the territorial reach of the courts of this state, a burden is imposed on the plaintiff to plead sufficient material facts to establish a basis for the exercise of such jurisdiction. If such jurisdiction over the person of the defendant is properly challenged by affidavit, the plaintiff must sustain its assertions by affidavit or other proof and may not rely on a mere reiteration of the allegations contained in the complaint. Georgia Savings and Loan Service Corp. v. Delwood Estates, Inc., 315 So.2d 237 (Fla. 1st DCA 1975). See also Dublin Company v. Peninsular Supply Co., 309 So.2d 207 (Fla. 4th DCA 1975). (Emphasis in original.)

Applying the foregoing requirements to the present case, we conclude that the allegations of the plaintiffs’ complaint and their subsequent proof were sufficient to meet the following test expressed by the United States Supreme Court and followed by the courts of Florida in Lacy v. Force V Corp., 403 So.2d 1050, 1054 (Fla. 1st DCA 1981):

Unquestionably the single most important factor to be considered is whether “the defendant’s conduct and connection with the forum ... are such that he should reasonably anticipate being haled into court there _” World-Wide Volkswagen Corp. v. Woodson, 444 U.S. [286] at 297, 100 S.Ct. [559] at 567, 62 L.Ed.2d at 501. It is essential that this circumstance be considered from the perspective of the defendant — not from that of the plaintiff. See Shaffer v. Heitner, 433 U.S. 186, 204, 97 S.Ct. 2569, 2580, 43 L.Ed.2d 683 (1977). The reasonable foreseeability factor is frequently applied to force a nonresident defendant to answer a suit within the forum if it “purposefully avails itself of the privilege of conducting activities within the forum .... ” Hanson v. Denckla, 357 U.S. 235, 253, 78 S.Ct. 1228, 1240, 2 L.Ed.2d 1283 (1958).

Paragraph 13 of the complaint alleged:

(13) Upon information and belief, Bass leased Learjet N211MB to persons and organizations residing and operating in the state of Florida, and leased and operated other aircraft in the state of Florida. Prior to March 3, 1980, Bass delivered Learjet N211MB into the custody of Glenn Charles Moyer with the knowledge that he would fly N211MB to various places within and without the United States of America including the state of Florida.

Bass Aviation moved to dismiss the complaint for lack of jurisdiction over its person and attached the affidavit of its president, attesting to the facts that Bass was a Mississippi corporation whose principal place of business is in Fairhope, Alabama; that it neither has nor had officers, agents, employees, jobbers, wholesalers or distributors in Florida; that it did not nor had not placed advertising in any publications in Florida nor sent direct mail nor broadcast advertising therein; that it does or did not use Florida banks as lenders; that it did not lease the aircraft in question to anyone in Florida, directly or indirectly; that it did not operate or maintain the subject aircraft here; that it had none of its products used or consumed here; that the lease for the aircraft was executed in Fairhope; that the aircraft left Fairhope for Denver; and that the pilot only mentioned Denver, Chicago and the northeast United States.

The affidavit did not address most of the allegations of paragraph 13 of the complaint but conflicted with the allegation therein that Bass knew the aircraft was going to be flown to Florida and without the U.S. The complaint had also alleged the alleged unairworthy aircraft flew from Miami to Haiti where it crashed in the mountains on March 3, 1980 killing the occupants.

The deposition of Bass’ president revealed two discrepancies with his affidavit; namely, that the pilot had told him he would be flying from the northeast to Florida and that Bass had advertised in 1979 and 1980 in Florida pursuant to a written agreement with A/C Flyer, whose office was then, according to the printed agreement, in Miami. The deposition further reflected facts relevant to the jurisdictional inquiry. The subject aircraft was leased for seven days on February 29, 1980, by Bass to Titanic Aircraft Sales and Service, Ltd., a Bahamian corporation operating in Fort Lauderdale. Bass had previously entered into similar leases with the same party; and Mr. Bass testified as to another lease for other aircraft with another party operating in Fort Lauderdale. A long-term lease with this other party — for ten years commencing in late 1979 — reflects delivery to be in Fort Lauderdale; and the record reflects correspondence and invoices directed to Fort Lauderdale.

The statement of facts in the main brief of appellants, Hernandez, alleges that the certificate held by Bass which was required by Part 135 of the Federal Aviation Regulations was used by other entities who were renting or leasing aircraft from Bass, including a party in Fort Lauderdale. Ap-pellees’ brief did not dispute this fact.

In our opinion the trial court erred in not concluding that Bass, should have reasonably anticipated being haled into court.

LETTS, J., concurs.

ANSTEAD, C.J., dissents with opinion.

ANSTEAD, Chief Judge,

dissenting:

Bass Aviation, Inc., a Mississippi corporation with its main office in Alabama, the lessor of an aircraft, was sued in negligence as the result of the crash of the aircraft in Haiti. The aircraft was leased in Alabama to a Bahamian corporation that did business in a number of states, including Florida. Under these facts I do not believe we can say the trial court erred in ruling that Bass was not amenable to service of process under the provisions- of Section 48.193, Florida Statutes (1983), which provides:

48.193 Acts subjecting persons to jurisdiction of courts of state.—
(1)Any person, whether or not a citizen or resident of this state, who personally or through an agent does any of the acts enumerated in this subsection thereby submits that person and, if he is a natural person, his personal representative to the jurisdiction of the courts of this state for any cause of action arising from the doing of any of the following:
(a) Operates, conducts, engages in, or carries on a business or business venture in this state or has an office or agency in this state.
(b) Commits a tortious act within this state.
(c) Owns, uses, or possesses any real property within this state.
(d) Contracts to insure any person, property, or risk located within this state at the time of contracting.
(e) With respect to proceedings for alimony, child support, or division of property in connection with an action to dissolve a marriage or with respect to an independent action for support of dependents, maintains a matrimonial domicile in this state at the time of the commencement of this action or, if the defendant resided in this state preceding the commencement of the action, whether cohabiting during that time or not. This paragraph does not change the residency requirement for filing an action for dissolution of marriage.
(f) Causes injury to persons or property within this state arising out of an act or omission outside of this state by the defendant, provided that at the time of the injury either:
1. The defendant was engaged in solicitation or service activities within this state which resulted in such injury; or
2. Products, materials, or things processed, serviced, or manufactured by the defendant anywhere were used or consumed within this state in the ordinary course of commerce, trade, or use, and the use or consumption resulted in the injury.
(g)Breaches a contract in this state by failing to perform acts required by the contract to be performed in this state.
(2) Service of process upon any person who is subject to the jurisdiction of the courts of this state as provided in this section may be made by personally serving the process upon the defendant outside this state, as provided in s. 48.194. The service shall have the same effect as if it had been personally served within this state.
(3) Only causes of action arising from acts or omissions enumerated in this section may be asserted against a defendant in an action in which jurisdiction over him is based upon this section, unless the defendant in his pleadings demands affirmative relief on other causes of action, in which event the plaintiff may assert any cause of action against the defendant, regardless of its basis, by amended pleadings pursuant to the rules of civil procedure.
(4) Nothing contained in this section shall limit or affect the right to serve any process in any other manner now or hereinafter provided by law.

Subsections (l)(a) through (g) and (3) speak for themselves. Under the evidence, Bass’ activities do not fall into any of these categories. I do not believe we can overturn the trial court’s ruling on the basis of evidence of some prior advertising in Florida or the fact that some other aircraft leased by Bass were used in Florida.

      . Fairhope is on the east side of Mobile Bay, west of Pensacola, Florida.


author: GLICKSTEIN, Judge. LETTS, Judge,

text:
    Judith C. WOOD, individually and as mother and natural guardian of Jim-A-Lou Wood and Michael Wood, her minor children, Appellant, v. FORTUNE INSURANCE CO., Appellee.
    No. 84-13.
    District Court of Appeal of Florida, Fourth District.
    July 11, 1984.
    Rehearing Denied Aug. 17, 1984.
    Roy W. Jordan, Jr., West Palm Beach, for appellant.
    Roger J. Slaydon of Walton, Lantaff, Schroeder & Carson, West Palm Beach, for appellee.
   GLICKSTEIN, Judge.

This is an appeal by an insured from an order vacating a final summary judgment previously entered in her favor and against her insurer. We affirm.

There is a parallel between this case and Morgan v. Thomson, 427 So.2d 1134 (Fla. 5th DCA 1983), in that appellee here failed to respond to appellant’s request for admissions, also failed to move for leave to file responses belatedly pursuant to Florida Rules of Civil Procedure 1.370 and suffered the entry of an adverse summary judgment. In Morgan our companion court held the defaulting party could not belatedly file responses without a motion for leave to do so, the absence of which was fatal. As Judge Cowart pointedly ends the opinion: “No motion, no relief, no error.” Id. at 1135.

Here, appellee’s course was identical to appellant’s in Morgan. Responses were filed late, without any motion seeking permission to do so. Also filed simultaneously was an affidavit in opposition to the adversary’s motion for summary judgment which spelled out facts diametrically opposed to admissions.

At that point the parallel between the cases ends. Appellant in Morgan immediately sought appellate relief. Appellee in the present case filed a motion to vacate the summary final judgment and attached the affidavit of appellee’s counsel that he timely sent the requests to the insurer client and informed it of the necessity for timely response. Counsel had in place a tickler system that broke down. No tickler; no reminder; no response. Weeks later the lapse was discovered and responses were immediately filed. The trial court, on review of the motion and affidavit, granted the motion, with the result that the ultimate issue of fact in dispute will be resolved by the triers of fact.

Precedent strongly supports our not disturbing the trial judge’s decision to have the matter resolved on its merits. Policy-wise, that is why the system was created initially. In addition, our companion court has suggested that the recognized test for upsetting a trial judge’s decision in so-called excusable neglect cases is that the decision amounted to a gross abuse of discretion. See Church v. Strickland, 382 So.2d 419 (Fla. 5th DCA 1980). Whether this was or was not excusable neglect is really not so important as the fact that we believe there was truly a judgment call; and that is what generally describes discretion. Similar fact patterns have been labeled as excusable neglect. In Broward County v. Perdue, 432 So.2d 742 (Fla. 4th DCA 1983), this court found such when a responsive pleading was late because a secretary clipped the summons and complaint to the wrong file. Similarly, in Florida Aviation Academy v. Charter Air Center, Inc., 449 So.2d 350 (Fla. 1st DCA 1984), the First District Court of Appeal overturned the trial court’s refusal to set aside a default judgment, when the explanation for the neglect was that an inexperienced secretary had failed to calendar the time when an answer to the complaint had to be filed. We judges, lawyers, secretaries and others involved in the process are all here to serve the parties’ rights and see that their remedies, as plaintiff or defendant, see the light of day. The trial judge’s decision here is consistent with those goals. When the system breaks down and the merits are never reached, justice is seldom served, and the system simply inherits an aberration from its conceived purpose; namely, a new claim against the source of the breakdown.

It is true that for the system to work, timeliness is essential; nevertheless, the rules of civil procedure are flexible enough to expressly provide for late filing of responses. Tardy responses may be and have been excused. See Love v. Allis-Chalmers Corp., 362 So.2d 1037 (Fla. 4th DCA 1978) and Melody Tours, Inc. v. Granville Market Letter, Inc., 413 So.2d 450 (Fla. 5th DCA 1982).

This opinion is not to be construed as a license for indifference and inefficiency. We could have reversed and created a contest between the attorney and its client; but that does not seem appropriate here. Hopefully, the individual members of The Florida Bar will be constant in their efforts to run such a tight ship in their respective practices that these breakdowns can be reduced and ultimately eliminated.

WALDEN, J., concurs.

LETTS, J., concurs specially with opinion.

LETTS, Judge,

concurring specially.

Based on all the facts in this case, I concur that the trial judge did not abuse his discretion. However, I do not agree that whether or not excusable neglect is present, is not so important.


author: DOWNEY, Judge.

text:
    Otto Julius KARCH and Florida Power & Light Company, a Florida corporation, Petitioners, v. Darlene Marie MacKAY and Joseph B. MacKay, her husband, Respondents.
    No. 84-250.
    District Court of Appeal of Florida, Fourth District.
    July 11, 1984.
    Rehearing Denied Aug. 21, 1984.

      Moss, Henderson & Lloyd, P.A., Vero Beach, and Marjorie Gadarian Graham of Jones & Foster, P.A., West Palm Beach, for petitioners.
    Robert Sussman, and Edward A. Perse of Horton, Perse & Ginsberg, Miami, for respondents.
   DOWNEY, Judge.

By petition for writ of common law cer-tiorari, Karch and Florida & Light Company seek quashal of discovery orders requiring the production of statements which Karch gave to his employer, Florida Power & Light, regarding Karch’s involvement in an automobile accident. The respondent, Darlene Marie MacKay, is one of the persons injured in said accident and one of the plaintiffs in pending litigation arising therefrom.

The courts of this state have been consistent since Hickman v. Taylor, 329 U.S. 495, 67 S.Ct. 385, 91 L.Ed. 451 (1947), in holding that, absent very unusual circumstances, statements obtained by an employer regarding an accident in anticipation of litigation are work product and not subject to adversarial discovery. Surf Drugs, Inc. v. Vermette, 236 So.2d 108 (Fla.1970); Florida Power & Light Co. v. Limeburner, 390 So.2d 133 (Fla. 4th DCA 1980); Winn-Dixie Stores, Inc. v. Nakutis, 435 So.2d 307 (Fla. 5th DCA 1983). The reports sought in this case appear to fall neatly within the protected category and allowance of their discovery constitutes a departure from the essential requirements of law. Accordingly, the petition for writ of common law certiorari is granted and those parts of the orders under review that require petitioners to produce statements that Karch gave to Florida Power & Light Company regarding the accident are quashed.

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


author: PER CURIAM. DELL, Judge,

text:
    KIRSCH HOLDING COMPANY, Some Other Place, Inc., Stanley Kirsch and Ramblewood Associates, Inc., Petitioners, v. G.C.L. DEVELOPMENT CORP. and Thomas Erling, Respondents.
    No. 84-896.
    District Court of Appeal of Florida, Fourth District.
    July 11, 1984.
    Rehearing Denied Aug. 14, 1984.
    Joel D. Kenwood of Heeg, Kenwood & Stone, P.A., Boca Raton, for petitioners.
    Douglas E. Thompson of Farish, Farish & Romani, West Palm Beach, for respondents.
   PER CURIAM.

Certiorari denied. Lindsey v. Sherman, 402 So.2d 1349 (Fla. 4th DCA 1981).

DOWNEY and GLICKSTEIN, JJ., concur.

DELL, J. concurs with opinion.

DELL, Judge,

concurring:

I concur with the majority’s denial of certiorari because the petitioner has an adequate remedy by appeal. However, in my opinion, the trial judge’s order directing this matter to be tried by a special master constitutes a denial of petitioner’s right to trial by jury, and therefore is a departure from the essential requirements of law. See, Spring v. Ronel Refining, Inc., 421 So.2d 46 (Fla. 3d DCA 1982).


author: GRIMES, Acting Chief Judge. CAMPBELL, Judge,

text:
    David SCHWARTZ, Gary Horwitz and Lou Horwitz, Petitioners, v. Walter William DeLOACH, Mary E. DeLoach, and Donald I. Roehr, Respondents.
    No. 84-793.
    District Court of Appeal of Florida, Second District.
    July 13, 1984.
    Rehearing Denied July 31, 1984.
    Robert J. Gill of Harrell, Kokernak, Branning & Gill, P.A., Sarasota, for petitioner David Schwartz.
    Raymond T. Elligett, Jr. of Shackleford, Farrior, Stallings & Evans, P.A., Tampa, for petitioners Gary Horwitz and Lou Hor-witz.
    Steven G. Schember of Kirk, Pinkerton, Savary, Carr & Strode, P.A., Sarasota, for respondents.
   GRIMES, Acting Chief Judge.

This is a petition for certiorari to review an order denying a motion to stay pending the disposition of a prior action between the parties in federal court.

Respondents sued petitioners in the Sarasota County Circuit Court on September 16, 1983. The complaint alleged various violations of the federal securities laws, state securities laws, and common law fraud. Upon the motion of one of the petitioners, the case was removed to the Federal District Court for the Middle District of Florida on the ground that the complaint included a federal claim for which exclusive jurisdiction lay in federal court. The respondents did not seek a remand from the federal court. Rather, on December 28, 1983, respondents commenced a second action against petitioners in the Sarasota County Circuit Court. The causes of action in the second state court action were identical to two of the causes of action in the pending federal case. Petitioners filed motions to stay the second state action pending the disposition of the previously filed federal action. The court denied the motion to stay, and this petition is directed to that order.

The Florida Supreme Court has recognized that when a previously filed federal action is pending between the same parties on the same issues, a subsequently filed state court action ordinarily should be stayed until the determination of the federal action. Thus, in Wade v. Clower, 94 Fla. 817, 114 So. 548 (1927), the court said:

Where a state and federal court have concurrent jurisdiction over the same parties or privies and the same subject-matter, the tribunal where jurisdiction first attaches retains it exclusively and will be left to determine the controversy and to fully perform and exhaust its jurisdiction and to decide every issue or question properly arising in the case. This jurisdiction continues until the judgment rendered in the first action is satisfied, and extends to proceedings which are ancillary or incidental to the action first brought. Accordingly, where the jurisdiction of a state or a federal court has once attached, it cannot be taken away or arrested by proceedings subsequently instituted in the other court; but the usual practice is for the court in which the second action is brought not to dismiss such action, but to suspend proceedings therein until the first action is tried and determined.

94 Fla. at 826, 114 So. at 551. Accord Mattox Grocery Co. v. Hay, 87 Fla. 492, 100 So. 747 (1924).

More than once, Florida courts have granted certiorari to quash orders declining to stay cases in favor of prior actions pending in other jurisdictions. Bedingfield v. Bedingfield, 417 So.2d 1047 (Fla. 4th DCA 1982), petition for review dismissed, 427 So.2d 736 (Fla. 1983); Gillis v. Gillis, 391 So.2d 772 (Fla. 3d DCA 1980).

Respondents rely almost entirely upon ITT-Community Development Corp. v. Halifax Paving, Inc., 350 So.2d 116 (Fla. 1st DCA 1977), cert. denied, 359 So.2d 1215 (Fla.1978), in which our sister court held:

Nor did the trial court depart from the essential requirements of law by denying ITT’s motion for stay pending disposition of the federal action. Disposition of the federal action would unquestionably dispose of the issues in this case; and the federal action was, as asserted by ITT, previously pending. Florida litigation need not be abated because of a previously-filed action in a federal district court in Florida. State ex rel. Dos Amigos, Inc. v. Lehman, 100 Fla. 1313, 131 So. 533 (1930). Nevertheless, Wade v. Clower, 94 Fla. 817, 826, 114 So. 548, 551 (1927), suggests that a stay of the action last filed is and should be “the usual practice” in the interests of state-federal comity. See also State ex rel. Sherrill v. Milam, 116 Fla. 492, 156 So. 497 (1934); and Jorge v. Antonio Co., 151 So.2d 467 (Fla. 2d DCA 1963). The United States Court of Appeals for the Fifth Circuit, making no distinction between abatement and stay, has held unequivocally that a federal district court action would be neither stayed nor abated pending disposition of a previously-filed Florida state court action involving the same issues and parties. Ermentrout v. Commonwealth Oil Co., 220 F.2d 527 (5th Cir. 1955). We conceive that a Florida trial court has power to weigh the circumstances for and against a stay, including as here the unlikelihood of early disposition of the federal trial. The trial court did not err in denying the stay.

350 So.2d at 117-118. Cf. Lawyers Professional Liability Insurance Co. v. Shand, Morahan & Co., 394 So.2d 238 (Fla. 1st DCA 1981), in which another panel of the same court subsequently ordered the Department of Insurance to suspend its proceedings pending the outcome of a prior federal action involving the same parties and the same issues.

The fact that the federal court in Er-mentrout announced a position which may be inconsistent with principles of state-federal comity can hardly justify the prosecution of duplicate causes of action in a rush to judgment. There may well be circumstances under which the denial of a stay could be justified upon a showing of the prospects for undue delay in the disposition of a prior action. Here, however, without taking any testimony, counsel simply debated the progress of the federal case which had only been pending in the federal court for slightly more than four months. The court’s ruling has the effect of circumventing federal removal jurisdiction and requires the petitioners to defend against the same causes of action in two forums.

All of the issues in the case below will be resolved in the federal action. Since the action now pending in federal court was filed first, the court abused its discretion in refusing to stay the subsequent suit.

We grant certiorari, quash the order denying stay, and remand with directions to stay this suit pending disposition of the federal action. Our ruling is without prejudice to respondents later seeking to remove the stay upon a showing of interminable delay in the federal case.

SCHOONOVER, J., concurs.

CAMPBELL, J., dissents with opinion.

CAMPBELL, Judge,

dissenting.

Finding myself in accord with the reasoning of ITT-Community Development Corp. v. Halifax Paving, Inc., 350 So.2d 116 (Fla. 1st DCA 1977), cert. denied, 359 So.2d 1215 (Fla.1978), I would deny the petition for certiorari. The majority puts some emphasis on the lack of testimony before the trial judge and the fact that the issues were presented to the trial judge in the form of legal argument by counsel. I see no fault in that as long as the parties chose that method to present the matter to the trial court. I cannot determine that the trial judge departed from the essential requirements of law in denying the stay.


author: WALDEN, Judge. BERANEK, Judge,

text:
    Merrill JACKSON, Appellant, v. STATE of Florida, Appellee.
    No. 82-1843.
    District Court of Appeal of Florida, Fourth District.
    July 13, 1984.
    Rehearing Denied Aug. 15, 1984.

      Richard L. Jorandby, Public Defender, and Tatjana Ostapoff, Asst. Public Defender, West Palm Beach, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Russell S. Bohn, Asst. Atty. Gen., West Palm Beach, for appellee.
   WALDEN, Judge.

Merrill Jackson was convicted of second degree murder based on the fatal stabbing of Jake Robinson and sentenced to life imprisonment. He appeals. We reverse and remand for a new trial.

There was one alleged eye-witness, Jesse Bac. Despite diligent efforts, Bac could not be located at trial time and so was not available as a witness. Initially, Bac implicated Jackson. When his discovery deposition was taken, Bac apparently changed his story so as to exonerate Jackson.

Jackson’s offer of Bac’s deposition into evidence was rejected. We affirm this decision upon authority of Terrell v. State, 407 So.2d 1039 (Fla. 1st DCA 1981).

Moreover, Bac’s deposition was taken for discovery purposes by Jackson under Rule 3.220(d), Florida Rules of Criminal Procedure, and not under the auspices of Rule 3.190(j), Florida Rules of Criminal Procedure, which latter rule is for the purpose of perpetuating testimony.

We disagree with Jackson’s argument that Bac’s deposition was admissible under Section 90.804(2)(a), Florida Statutes (1982):

(2) Hearsay exceptions. — The following are not excluded under s. 90.802, provided that the declarant is unavailable as a witness: (a) Former testimony. — Testimony given as a witness at another hearing of the same or a different proceeding, or in a deposition taken in compliance with law in the course of the same or another proceeding, if the party against whom the testimony is now offered, or, in a civil action or proceeding, a predecessor in interest, had an opportunity and similar motive to develop the testimony by direct, cross, or re-direct examination. [Emphasis added.]

Here the State did not attend the taking of Bac’s discovery deposition although noticed. Inasmuch as Bac had previously implicated Jackson and thus had been listed as a State’s witness, we feel that the State did not have a similar motive to develop Bae’s testimony by direct, cross, or re-direct examination. It had no reason to expect that Bac would not be present for trial at which time, in the event Bac should recant and become hostile, the State could cross-examine and impeach Bac. Again, Bac’s deposition was not taken so as to perpetuate his testimony. Had it been so taken, the result would be different.

We now come to the matter that causes this Court to reverse and remand for a new trial, that being the prosecutor’s comment during voir dire on Jackson’s right to remain silent during trial.

During voir dire, the prosecutor stated to the jury panel:

MR. WALSH: NOW, ON PERRY MASON EITHER THE PERSON CONFESSED OR SOMEONE IS GOING TO STAND UP IN THE BACK OF THE ROOM IN TWO OR THREE DAYS, AND SAY, “I DID IT.”
OKAY, NOW OBVIOUSLY MOST CASES AREN’T LIKE THAT. AND THERE IS NOT A CONFESSION IN THIS CASE. WOULD ANYONE BELIEVE THAT THIS INDIVIDUAL COULD NOT HAVE COMMITTED THE CRIME, SIMPLY BECAUSE HE DID NOT CONFESS TO THAT CRIME?

The defense promptly objected. Objection sustained. However, the defense’s failure to contemporaneously move for mistrial thus failed to preserve the issue for appeal. Later, during voir dire, the prosecutor exchanged the following with a potential jur- or:

MR. WALSH: OKAY, YOU UNDERSTAND THAT IN PERRY MASON SOMEBODY IS GOING TO STAND UP AT SOME TIME AND SAY THAT THEY DID IT, OR THERE’S A CONFESSION OR SOMETHING LIKE THAT.
MR. BRIGANDI: YEAH.
MR. WALSH: JUST BECAUSE THAT DOESN’T HAPPEN HERE DOESN’T MEAN THAT THAT MAN’S NOT GUILTY, DOES IT?
MR. BRIGANDI: NO.

This time the defense’s objection was accompanied with a motion for mistrial.

We hold that the final objection and motion for mistrial sufficiently preserved this matter for appeal. Simpson v. State, 418 So.2d 984 (Fla.1982). We further hold that the remarks constituted prejudicial error and that a mistrial should have been granted upon authority of Simpson, supra; Ramos v. State, 413 So.2d 1302 (Fla. 3d DCA 1982); Cunningham v. State, 404 So.2d 759 (Fla. 3d DCA 1981).

In Donovan v. State, 417 So.2d 674 (Fla. 1982), Shannon v. State, 335 So.2d 5 (Fla. 1976), and Bennett v. State, 316 So.2d 41 (Fla.1975), it was held that a reversal per se was required when the State commented on the right of the accused to remain silent before the jury, regardless of the harmless error rule. These cases have not been expressly overruled or withdrawn.

In State v. Murray, 443 So.2d 955 (Fla. 1984), the Supreme Court of Florida applied the harmless error rule as concerns prose-cutorial misconduct in closing argument which attacked the mental state of the defendant in giving his testimony. That is not what happened here wherein the prosecutor commented on the defendant’s exercise of his right to remain silent. However, Murray discussed the standard of appellate review in applying the harmless error rule.

Then in Rowell v. State, 450 So.2d 1226 (Fla. 5th DCA 1984), and DiGuilio v. State, 451 So.2d 487 (Fla. 5th DCA 1984) the Fifth District Court of Appeal wondered if the holding in Murray, supra, signaled an abandonment of the per se reversal rule in cases where there was a comment on a defendant’s right to remain silent. Questions as to existence of the per se reversal rule and harmless error rule were certified in these cases to the Florida Supreme Court.

Critically, we have reviewed the evidence in this case using the pertinent criteria and find that we cannot say beyond any reasonable doubt that the jury would have returned a verdict of guilty absent the prosecutor’s comment. Had the evidence been otherwise, the error would have been harmless. United States v. Hasting, 461 U.S. 499, 103 S.Ct. 1974, 76 L.Ed.2d 96 (1983); Rowell, supra. Thus, we are not concerned with the existence or not of the per se reversal rule regardless of harmless error.

To illustrate, the evidence was in disarray and in such a state of conflict as to the killer’s identity, that guilt beyond a reasonable doubt does not point to the defendant. A discrepancy exists as to whether or not there was, indeed, an eye-witness to the precise moment of execution. There was some testimony that the defendant and his friend Parker had an argument in the vicinity of Walt’s grocery store. Allegedly both men had been drinking. Unfortunately, so had the witnesses. Some claimed Parker had a gun and Jackson had the knife. Parker denied any participation in an argument as well as any suggestion that he was armed. We do know that the defendant left Walt’s grocery store with Parker trailing behind a few moments later. Parker testified that when he caught up with the defendant in the back of Boat-wright’s, the defendant and Robinson were in a fight. In trying to stop the altercation, Parker claims he was knocked down; Robinson ran towards the front of the store. By the time Parker got up and moved around to the front of the store, the ambulance was there. Robinson had been stabbed and lay in front of the store. Other witnesses saw Robinson appear from behind Boatwright’s and fall in front of the telephone booth. Another account claimed that the defendant came running back to Walt’s grocery store, followed shortly thereafter by Parker who positioned himself in a chair on the porch. One man, named Bubba, testified that when the defendant returned to Boatwright’s, he allegedly put a knife and his shirt in Parker’s pocketbook that had been left on the porch. However, Bubba’s testimony conflicted with his deposition. The defendant was carrying the pocketbook when the police apprehended him. However, no fingerprints were found on the knife. No blood was found on the defendant or his clothing, although one witness proclaimed that the defendant had wiped the knife off with his shirt before stuffing it into the pocketbook. However, fresh blood was found on Parker’s sleeve.

In conclusion, we hold that the prosecutor’s comments constituted harmful error that necessitates a new trial.

Reversed and remanded for a new trial.

DELL, J., concurs.

BERANEK, J., concurs specially with opinion.

BERANEK, Judge,

concurring specially.

I agree with the result reached by the majority as to the necessity for a new trial. I would also hold that the deposition of Bac is admissible on retrial.


text:
    RAUCH, WEAVER, MILLSAPS, BIGELOW & COMPANY, as Agents for the Beneficiaries of the Estate of Henry Van Baay, Appellant, v. CENTRAL BANK AND TRUST COMPANY OF MIAMI, Trustee; Whatever, Inc., a Florida corporation, Roman Moreth, et al., Appellees.
    No. 83-2130.
    District Court of Appeal of Florida, Fourth District.
    July 13, 1984.
    Rehearing Denied Aug. 21, 1984.

      Robert Paul Keeley of Zeiher & Schroeder, Fort Lauderdale, for appellant.
    Robert H. Anderson, II, Fort Lauderdale, for appellee-Central Bank and Trust Company.
   PER CURIAM.

This is a non-final appeal, taken pursuant to Rule 9.130(a)(3)(C)(i), Fla.R.App.P., which questions the propriety of a trial court order determining jurisdiction over several parties-plaintiff. We reverse.

To facilitate collection of monies due on a promissory note, several beneficiaries of the estate of Henry Van Baay named the appellant, Rauch, Weaver, Millsaps, Bige-low & Company (Rauch), as their agent. The beneficiaries gave Rauch title to the promissory note on which Whatever, Inc., was the promisor and Roman Moreth was the guarantor. The note was secured by a mortgage on property owned by appellee, Central Bank and Trust Company of Miami. The beneficiaries also empowered Rauch to institute legal action, if necessary, to collect upon the note and collateral. Accordingly, Rauch, in its representative capacity, filed suit to collect upon the promissory note and foreclose the mortgage. As discovery progressed, the trial court granted Central Bank’s motion to compel discovery and therein stated that each of the beneficiaries was a party-plaintiff. Rauch appeals this aspect of the ruling.

As a preliminary matter, we must determine whether Rauch has standing to appeal. In National Lake Developments, Inc. v. Lake Tippecanoe Owners Association, 417 So.2d 655, 657 (Fla.1982), the court stated that “[t]he right to challenge jurisdiction has always been reserved to the person over whom the court is asserting jurisdiction.” A literal application of this principle would suggest that only the beneficiaries, in their individual capacities, have standing to contest the trial court’s ruling. However, by naming Rauch as their agent with the power to litigate, the beneficiaries created an identity of interest with Rauch. Rauch, therefore, is not an uninvolved bystander. To the contrary, Rauch has a real stake in the outcome of this appeal so as to assure concrete adverseness which is necessary to sharpen the presentation of issues. See Flast v. Cohen, 392 U.S. 83, 88 S.Ct. 1942, 20 L.Ed.2d 947 (1968). Accordingly, we conclude that Rauch has standing to pursue this appeal.

Turning to the merits, it is clear that Rauch instituted this suit in its representative capacity as the beneficiaries’ agent. Moreover, it cannot be questioned that Rauch was entitled to commence this action in its representative capacity. See Durrant v. Dayton, 396 So.2d 1225 (Fla. 4th DCA 1981); Schurkman v. Stolar, 347 So.2d 653 (Fla. 3d DCA 1977); see also Kramer v. Smith, 99 Fla. 147, 128 So. 477 (1930); 3 Am.Jur.2d Agency § 92 (1962). Since neither Florida law nor the rules of civil procedure provide for the creation of an “ ‘involuntary plaintiff[J ” see Paul v. Blake, 376 So.2d 256, 260 (Fla. 3d DCA 1979), the trial court’s action was erroneous. Thus, we hold that the trial court committed reversible error by declaring each of the beneficiaries a party-plaintiff and, accordingly, we reverse.

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

      . Fla.R.Civ.P. 1.250 enables a trial judge to add parties "on its own initiative ... on such terms as are just.” However, neither party suggests the court’s order was entered pursuant to this rule; nor is it clear that the rule applies in this instance.


author: HURLEY, Judge.

text:
    STATE of Florida, Appellant, v. Charles Raymond ALBURY, Appellee.
    No. 83-2273.
    District Court of Appeal of Florida, Fourth District.
    July 13, 1984.
    Rehearing Denied Aug. 15, 1984.
    Jim Smith, Atty. Gen., Tallahassee, and James P. McLane, Asst. Atty. Gen., West Palm Beach, for appellant.
    Barry G. Roderman, Fort Lauderdale, for appellee.
   HURLEY, Judge.

The State appeals from an order granting the defendant’s motion to suppress physical evidence. We reverse the order and remand for trial.

Charles Albury was charged with trafficking in cannabis and conspiring to traffic in cannabis following an undercover operation staged by the Plantation police department. He filed a motion to suppress 291 pounds of cannabis, contending that the cannabis used by the Plantation police in their undercover operation was transferred to them by the Fort Lauderdale police department in violation of section 893.12(l)(a), Florida Statutes (1983). More specifically, he alleged that the cannabis was used as evidence in another criminal prosecution, but never disposed of as required by section 893.12(l)(a). That statute provides:

(1) All substances controlled by this chapter which may be handled, delivered, possessed, or distributed contrary to any provisions of this chapter and all such controlled substances the lawful possession of which is not established or the title to which cannot be ascertained are declared to be contraband, shall be subject to seizure and confiscation by any person whose duty it is to enforce the provisions, of the chapter, and shall be disposed of as follows:
(a) Except as in this section otherwise provided, the court having jurisdiction shall order such controlled substances forfeited and destroyed. A record of the place where said controlled substances were seized, of the kinds and quantities of controlled substances destroyed, and of the time, place and manner of destruction shall be kept, and a return under oath reporting said destruction shall be made to the court or magistrate and to the United States Drug Enforcement Administration by the officer who destroys them.

We need not decide whether a section 893.12(1) violation exists to resolve this appeal because we find that suppression of evidence under the exclusionary rule is an inappropriate sanction for such an alleged statutory violation. The defendant in this case can show no prejudice from the alleged police misconduct nor has he established a violation of his constitutional rights. It is important to recall that the exclusionary rule was developed to deter police misconduct which results in constitutional violations. This was explained in United States v. Calandra, 414 U.S. 338, 347-48, 94 S.Ct. 613, 619, 38 L.Ed.2d 561 (1974), where the court said:

The purpose of the exclusionary rule is not to redress the injury to the privacy of the search victim.... Instead, the rule’s prime purpose is to deter future unlawful police conduct and thereby effectuate the guarantee of the Fourth Amendment against unreasonable searches and seizures ....

The same rationale was restated in United States v. Leon, — U.S. —, 104 S.Ct. 3405, 82 L.Ed.2d 677 (1984), where the court noted that the application of the exclusionary rule had been limited to those instances “where a Fourth Amendment violation has been substantial and deliberate.” (Emphasis supplied).

The defendant in this case asks that the exclusionary rule be extended to apply to evidence which may have been acquired in violation of a state regulatory statute. We reject this proposition. Whether the benefits which might inure from such an exclusionary rule justify the attendant social costs is a question for the Legislature.

Accordingly, we reverse the suppression order and remand this cause for trial.

REVERSED AND REMANDED.

DOWNEY and BERANEK, JJ„ concur.


author: SHIVERS, Judge.

text:
    SPECIAL DISABILITY TRUST FUND, Department of Labor and Employment Security, State of Florida, Appellants, v. TRAIL TIRE CENTER and Kemper Insurance Group, Appellees.
    Nos. AW-83, AU-218.
    District Court of Appeal of Florida, First District.
    July 13, 1984.

      Robert M. Mack, Special Disability Trust Fund, Tallahassee, for appellants.
    David A. Danielson, of Brennan, McAli-ley, Hayskar, McAliley & Jefferson, West Palm Beach, for appellees.
   SHIVERS, Judge.

The Special Disability Trust Fund (the Fund) in these consolidated workers’ compensation cases appeals the deputy’s orders finding that the Fund waived its right not to be joined as a party to the settlement/washout proceeding (Case No. AU-218) and finding that the settlement' was reasonable from the perspective of the Fund in the reimbursement proceeding (Case No. AW-83). We affirm on the basis that the settlement was reasonable from the perspective of all interested parties, including the Fund. However, we find that the deputy erred while in the process of reaching the correct result.

First, we find error in the deputy’s finding in Case No. AU-218 that the Fund waived its right not to be a party to the settlement/washout proceeding by including the following pertinent language in its (the Fund’s) letter offer of reimbursement:

The Fund considers itself an interested party in any washout in this matter and requests timely notification if a washout is contemplated. Failure to notify the Fund and obtain its consent to a washout may waive the employer/carrier’s right to reimbursement from the Fund.

We find that this language merely states the legal status of the Fund and the employer/carrier’s requirement as to notice as mandated by case and statutory law. See Special Disability Trust Fund v. Tropicana, Etc., 358 So.2d 1 (Fla.1978); section 440.49(2)(i), Florida Statutes (1979). Accordingly, we find and hold that the deputy improperly joined the Fund as a party to the settlement/washout proceeding. However, remand is unnecessary in this case since the Fund declined to present any evidence at the settlement hearing; the Fund waited to present its evidence at the reimbursement hearing.

Second, we find error in the deputy’s finding in Case No. AW-83 that the Fund lacks standing to raise the defense that a settlement is unreasonable from the standpoint of the Fund when a settlement is reasonable from the standpoints of the employer/carrier and the claimant. Our approval of this finding would nullify the provisions of Florida Statutes section 440.-49 and 440.20(12) and (13), which latter subsections should be read in pari materia with section 440.49. Accordingly, we find and hold that the Fund does have standing to contest the reasonableness of a settlement/washout entered into between an employer/carrier and a claimant from its perspective in a reimbursement proceeding. However, we agree with the deputy’s alternative finding in Case No. AW-83 that the settlement sub judice was reasonable even from the standpoint of the Fund and we affirm on that basis. We also affirm the deputy’s findings that a claimant’s life expectancy is the proper criterion to be used in determining a claimant’s probability of death pursuant to section 440.20(12)(b) and that the possibility of claimant regaining his earning capacity is to be disregarded in this calculation. See Cone Brothers Contracting v. Gordon, 453 So.2d 420 (Fla. 1st DCA 1984); Sanford v. Alachua County School Board, 425 So.2d 112 (Fla. 1st DCA 1982). Accordingly, Case No. AW-83 is affirmed.

AFFIRMED in part, REVERSED in part without remand.

MILLS and WIGGINTON, JJ„ concur.


author: ZEHMER, Judge.

text:
    Jimmy HATCHER, Appellant, v. B.K. ROBERTS, et al., and Select Insurance Co., et al., Appellees.
    No. AW-244.
    District Court of Appeal of Florida, First District.
    July 18, 1984.
    Jimmy Hatcher, Bristol, pro se, for appellant.
    Jerome M. Novey and Patricia Hart Alexander, of Novey & Mendelson, Tallahassee, for appellees.
   ZEHMER, Judge.

Jimmy Hatcher appeals from a final order of the trial court granting a motion to dismiss with prejudice as to all of the ap-pellee insurance companies. The court’s dismissal was based on section 627.7262(1), Florida Statutes (1982), which provides as follows:

It shall be a condition precedent to the accrual or maintenance of a cause of action against a liability insurer by a person not an insured under the terms of the liability insurance contract that such person shall first obtain a judgment against a person who is an insured under the terms of such policy for a cause of action which is covered by such policy.

This statute was held constitutional by the Florida Supreme Court in VanBibber v. Hartford Accident & Indemnity Insurance Co., 439 So.2d 880 (Fla.1983), but the Court specifically found that because it was a substantive statute it was inapplicable to causes of action “predicated on events which occurred prior to the effective date of the statute.” Id., at 881. The effective date of section 627.7262(1), Florida Statutes (1982), was October 1, 1982. Upon a complete reading of appellant’s complaint, it appears that the operative events alleged in all counts occurred prior to October 1, 1982. Accordingly, section 627.7262 is inapplicable in this case and does not operate to bar appellant’s suit against the insurance companies.

REVERSED and REMANDED.

L. SMITH and JOANOS, JJ., concur.


author: WALDEN, Judge.

text:
    Eleanor MACK and Robert Mack, Sr., her husband, Appellants, v. Manual G. GARCIA, M.D., et al., Appellees.
    No. 84-622.
    District Court of Appeal of Florida, Fourth District.
    July 18, 1984.
    Rehearing Denied Aug. 14, 1984.
    Kocha & Houston and Jane Kreusler-Walsh and Larry Klein, West Palm Beach, for appellants.
    Robert M. Klein and Debra Levy Nei-mark of Stephens, Lynn, Chernay, Klein & Zukerman, West Palm Beach, for appellees.
   WALDEN, Judge.

The Macks sued Dr. Garcia for medical malpractice and prevailed. However, the Macks were dissatisfied with the amount of the award and successfully appealed to this court so as to obtain a reversal and remand for a new trial. Mack v. Garcia, 433 So.2d 17 (Fla. 4th DCA 1983).

Upon new trial the Macks were again successful and obtained a money judgment against Dr. Garcia more to their liking. The Macks then moved to tax costs against Dr. Garcia for costs incurred in the first trial and in the second trial.

The trial court taxed costs for the second trial but refused to do so as concerns the first trial. The Macks appeal. We reverse and remand with instructions.

It is to be remembered and emphasized that the Macks have prevailed at every step in this litigation.

Section 57.041, Florida Statutes (1983) is the statutory basis for the prevailing party recovering costs from the losing party. Its application was discussed in Gordon International Adv. v. Charlotte County L. & T. Co., 170 So.2d 59, 61 (Fla. 3d DCA 1964), as follows:

Costs, as a compensatory monetary award to the winning party, is a judicial attempt to make the winning party as whole as he was prior to the litigation, (sic) The theory being that the prevailing party should not lose anything, at least financially, by virtue of having established the righteousness of his claim.

As we see it, under the circumstances here, the Macks are entitled to their lawful costs expended in the first trial and in the second trial in order to be made whole.

Upon remand we respectfully instruct that the trial court review the Macks’ claimed costs from both trials and award a cost judgment accordingly.

Reversed and remanded with instructions.

GLICKSTEIN and HURLEY, JJ., concur.


text:
    Luis RODRIGUEZ, Appellant, v. STATE of Florida, Appellee.
    Nos. 83-2266, 83-2267.
    District Court of Appeal of Florida, Second District.
    July 18, 1984.
   ON MOTION FOR REHEARING

PER CURIAM.

Appellant’s motion for rehearing is granted. The opinion rendered in this cause on May 18, 1984, is withdrawn and the following opinion substituted.

Upon review of the briefs and record on appeal in this cause, we hold appellant has failed to demonstrate reversible error.

After hearing, the trial court adjudged appellant insolvent and assessed in each case $250 in attorney fees and $50 in costs pursuant to section 27.56, Florida Statutes (1983). However, the record shows that appellant was not given adequate notice of nor afforded an opportunity to object to the assessments. Accordingly, we strike these costs without prejudice to the trial court to assess costs in accordance with the procedure outlined in section 27.56, Florida Statutes (1983). See Jenkins v. State, 444 So.2d 947 (Fla.1984).

We affirm the trial court’s judgments and' sentences in all other respects.

BOARDMAN, A.C.J., and DANAHY and CAMPBELL, JJ., concur.


text:
    Norris Lamar GRIMSLEY, Appellant, v. STATE of Florida, Appellee.
    No. 83-2217.
    District Court of Appeal of Florida, Second District.
    July 20, 1984.
    Jerry Hill, Public Defender, and Paul C. Helm, Asst. Public Defender, Bartow, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Peggy A. Quince, Asst. Atty. Gen., Tampa, for appellee.
   PER CURIAM.

Affirmed. As to Point I, see Tibbs v. State, 397 So.2d 1120, 1123 (Fla.1981), aff'd, 457 U.S. 31, 102 S.Ct. 2211, 72 L.Ed. 652 (1982); Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 2789, 61 L.Ed. 560 (1979). As to Point II, see Treverrow v. State, 194 So.2d 250, 252 (Fla.1967); Spataro v. State, 179 So.2d 873, 879 (Fla.2d DCA 1965). As to Point III, see Brown v. State, 229 So.2d 898, 899 (Fla.2d DCA 1969).

RYDER, C.J., and HOBSON and BOARDMAN, JJ., concur.


text:
    Cynthia Lee ELLIS, Appellant, v. STATE of Florida, Appellee.
    No. 83-2390.
    District Court of Appeal of Florida, Second District.
    July 20, 1984.
    Jerry Hill, Public Defender and Larry G. Bryant, Asst. Public Defender, Bartow, for appellant.
    Jim Smith, Atty. Gen., Tallahassee and Theda James Davis, Asst. Atty. Gen., Tampa, for appellee.
   PER CURIAM.

Affirmed. See Thomas v. State, 350 So.2d 568 (Fla. 3d DCA 1977); Martin v. State, 243 So.2d 189 (Fla. 4th DCA 1971).

RYDER, C.J., and HOBSON and BOARDMAN, JJ., concur.


text:
    Michael Timothy MORRISON, Appellant, v. STATE of Florida, Appellee.
    No. AV-304.
    District Court of Appeal of Florida, First District.
    July 24, 1984.
    Michael Timothy Morrison, in pro. per.
    No appearance by appellee.
   ON MOTION FOR REHEARING

PER CURIAM.

We grant the motion for rehearing filed by Michael Timothy Morrison. Our initial opinion is withdrawn.

Morrison appeals pro se the trial court’s summary denial of his Rule 3.850, Florida Rules of Criminal Procedure, motion for post-conviction relief. The trial court denied this motion on the basis that the same motion had been previously filed and denied. Our examination of the record shows that this previously filed motion was a motion for correction, reduction, and modification of sentence under Rule 3.800, Florida Rules of Criminal Procedure, and did not assert the same grounds as were asserted in the motion subsequently filed under Rule 3.850. Accordingly, we must remand to the trial court.

BOOTH, SMITH and SHIVERS, JJ, concur.