text:
    CONGER LIFE INSURANCE COMPANY, Appellant, v. Richard DEIMEL, Appellee.
    No. 83-40.
    District Court of Appeal of Florida, Third District.
    Nov. 8, 1983.
    Rehearing Denied Dee. 28, 1983.
    Blackwell, Walker, Gray, Powers, Flick & Hoehl and James C. Blecke and Diane H. Tutt, Miami, for appellant.

      Whitman, Wolfe, Gross & Salmon and John Salmon, Miami, for appellee.
    Before HUBBART, DANIEL S. PEARSON and FERGUSON, JJ.
   FERGUSON, Judge.

This appeal is brought from an order adjudging defendant Conger indebted to plaintiff Deimel for $26,481.55 in commissions and interest.

The parties entered into an oral agreement in March, 1973 by terms of which Conger would write a group policy procured by Deimel and would pay Deimel a 10% commission on a monthly basis, i.e., within sixty days of the date the premium was received by Conger. Deimel had continuing obligations, pursuant to the agreement, to pick up the premium checks from the insured group, deliver them to Conger, and act as an intermediary between the insured and Conger. The agreement contemplated the payment of an additional 5% in commissions in the event the experience with the insured group was good. The parties agree that the experience proved to be poor. Nonetheless, the parties’ contract was renewed annually on the original terms for several years. In December, 1977 Conger decided to increase the premium to the group by 25% and to reduce Deimel’s commissions to 5% — both to become effective with the March, 1978 renewal. In 1978, Deimel, with Conger’s approval, looked around for another insurance carrier to take over the policy. Of the twenty to thirty companies contacted, only one agreed to carry the policy; however, the insured group decided to remain with Conger. Although Deimel objected to the reduction in commission, in March, 1978 he renewed the policy with the insured group at a 25% increase in premium, and received a 5% commission, in accordance with Conger’s December, 1977 notice, until June, 1979 when the policy was cancelled by Conger for non-payment of premium. Conger refused Deimel’s continued demands for payment of an additional 5% in commissions, which led to the filing of this lawsuit on January 15, 1981. At the conclusion of a non-jury trial the court announced:

Mr. Deimel never assented to it. [Reduction of the commission]. He objected to it. It was not a mutual agreement and they continued to serve his group and that but for the problem with, the statute of frauds, and I’m not ruling on that at the moment, the Court finds that Mr. Deimel would be entitled to a ten percent commission for as long as they renewed that policy with the group obtained by him....

Conger argues that if the agreement constitutes a single indivisible contract, enforcement is barred by operation of the statute of frauds or for lack of mutuality of obligation. Alternatively Conger contends that if the agreement contemplated a series of divisible contracts, then Conger had the right to unilaterally withdraw its offer to pay a 10% commission upon notice and substitute a 5% commission on all future placements or renewals.

After considering memoranda of law submitted by the parties the trial court ruled that the statute of frauds, Section 725.01, Florida Statutes (1981), was no bar to enforcement of the agreement, obviously because the original agreement contemplated a series of annual contracts renewable at the option of the parties. We agree with that determination. See Rothman v. Gold Master Corp., 287 So.2d 735 (Fla. 3d DCA 1974); Grossman v. Levy’s, 81 So.2d 752 (Fla.1955) (the oral renewal for one year of a one-year oral contract of employment, performance of which was to, and did, commence on the day renewal was entered into, is not within the statute of frauds).

The only remaining question is whether Conger could, even with advance notice to Deimel, renew the 1978 contract on terms different from those of the prior years’ contracts. We believe so, since such a renewal on different terms is quite consistent with Conger’s right not to renew the policy and the commission agreement — a right which is conceded by Deimel. Conger cites the Restatement (Second) of Contracts (1981), for the applicable rule:

§ 47. Revocation of Divisible Offer.
An offer contemplating a series of independent contracts by separate acceptances may be effectively revoked so as to terminate the power to create future contracts, though one or more of the proposed contracts have already been formed by the offeree’s acceptance.

Conger’s December, 1977 communication to Deimel was an offer to renew the 1978 contract on different terms, which Deimel evidently understood to be just that, as he admittedly began an unsuccessful search for some other carrier which would provide more favorable terms and be acceptable to the insured group. Although voicing an objection to the reduced commission (apparently not to the increased premium), Deimel renewed the policy on the terms offered by Conger, and continued to perform according to those terms through the contract year, and into a second year, by collecting the 25% increased premiums and accepting the 5% commission. His full performance (speaking louder than his contradicting voice) constituted acceptance of Conger’s new offer, see Koppers Co. v. Kaiser Aluminum & Chemical Corp., 9 N.C.App. 118, 175 S.E.2d 761, 767 (Ct.App.1970) citing 17 C.J.S. Contracts § 41d (1963) and the agreement thus formed cannot now be set aside in reliance on prior contracts which were effectively revoked.

We are cognizant of the principle of law that when an offeree expressly states that he will not agree to the terms of the offer, no agreement can be inferred from his act of performance. Lamson Consolidated Store-Service Co. v. Weil, 15 Daly 498, 8 N.Y.S. 336 (Common Pleas 1890). But we view Deimel’s objections to the new offer as a mere expression of dissatisfaction while he continued to perform according to the new offer. Such objections did not make his acceptance conditional, nor did they constitute a counter-offer. See Foster v. West Publishing Co., 77 Okl. 114, 186 P. 1083 (1920). Conger’s new offer to Deimel was unequivocal, and after an unsuccessful attempt to find another carrier, Deimel acquiesced to the new terms.

We would reject the non-acceptance theory for another reason. A proposal must be accepted or rejected as a whole, and cannot be accepted as to part and rejected as to part without the consent of the offeror. See Lamonica v. Bosenberg, 73 N.M. 452, 389 P.2d 216 (1964). Here, the new offer consisted of both an increase in premium cost and a reduction in commission rate. Deimel produced no evidence tending to show that the offeror relented as to either part of the new offer.

Reversed and remanded with instructions to enter judgment for the appellant.

      . The insured group is not a party to the proceedings.

      . If, on the other hand, we were to disagree with the court’s finding and determine that the agreement constitutes a single indivisible contract not capable of performance within one year, the statute of frauds would apply. See Tobin & Tobin Insurance Agency, Inc. v. Zeskind, 315 So.2d 518 (Fla. 3d DCA 1975); see also Food Fair Stores, Inc. v. Vanguard Investments Co. Ltd., 298 So.2d 515 (Fla. 3d DCA 1974) (evidence that oral agreement provided that any future stores of particular chain built at any future time would be operated jointly by the parties on the same basis as the initial store demonstrated that the contract could not be performed within one year, and thus came within the statute of frauds). The consequence of such a finding would still be unfavorable to Deimel since enforcement of the agreement, not in writing, would be precluded by operation of the statute of frauds. See Davis v. Ferraro, 303 So.2d 407 (Fla. 3d DCA 1974) and cases cited therein.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    BARTEL & SHUFORD, Appellant, v. NORIEGA, CHOPP & SCHATZ, Appellee.
    No. 83-126.
    District Court of Appeal of Florida, Third District.
    Nov. 8, 1983.
    Rehearing Denied Dec. 21, 1983.

      Law Offices of Joe N. Unger, P.A., and Joe N. Unger, Stanley J. Bartel, P.A., Miami, for appellant.
    Sibley, Giblin, Levenson & Glaser and Irving B. Levenson, Miami Beach, for ap-pellee.
    Before HUBBART, NESBITT and JOR-GENSON, JJ.
   PER CURIAM.

Affirmed. See City of Tampa v. City of Port Tampa, 127 So.2d 119 (Fla. 2d DCA 1961).


text:
    SOUTH FLORIDA FREE BEACHES, INC., a Florida non-profit corporation, and Gary Bryant, Appellants, v. Janet RENO and Bobby Jones, Kenneth Harms, and City of Miami, Florida, a municipal corporation in the State of Florida, Appellees.
    No. 83-419.
    District Court of Appeal of Florida, Third District.
    Nov. 8, 1983.
    Rehearing Denied Dec. 15, 1983.
    Robert S. Korschun, Miami, for appellants.
    Jim Smith, Atty. Gen. and Bruce Barkett and Eric Taylor, Asst. Attys. Gen., Robert A. Ginsburg, Dade County Atty., and James A. Jurkowski, Asst. County Atty., Jose R. Garcia-Pedrosa, City of Miami Atty., and Gisela Cardonne and Richard Graddock, Asst. City Attys., for appellees.
    Before HENDRY, HUBBART and JOR-GENSON, JJ.
   PER CURIAM.

Affirmed. See O’Brien v. Brickell Townhouse, Inc., 439 So.2d 982 (Fla. 3d DCA 1983).


author: PER CURIAM.,

text:
    Eduardo BILBAO, Appellant, v. Manuel GONZALEZ and Government Employees Insurance Company, Appellees.
    No. 83-523.
    District Court of Appeal of Florida, Third District.
    Nov. 8, 1983.
    Rehearing Denied Dec. 21, 1983.
    Anthony Villaamil, Miami, for appellant.
    Kimbrell, Hamann, Jennings, Womack, Carlson & Kniskern, P.A., and Paul T. Reid and Roy Wasson, Miami, for appellees.
    Before HUBBART, NESBITT and JOR-GENSON, JJ.
   PER CURIAM.,

Affirmed. See Watson v. Peskoe, 407 So.2d 954 (Fla. 3d DCA 1981); Ferrante v. Waters, 383 So.2d 749 (Fla. 4th DCA 1980).


text:
    Ambrosio TABARES, Appellant, v. The STATE of Florida, Appellee.
    No. 83-784.
    District Court of Appeal of Florida, Third District.
    Nov. 8, 1983.
    Rehearing Denied Dec. 22, 1983.
    Bennett H. Brummer, Public Defender and John H. Lipinski, Sp. Asst. Public Defender, for appellant.
    Jim Smith, Atty. Gen. and Marti Rothen-berg, Asst. Atty. Gen., for appellee.
    Before HUBBART, NESBITT and BAS-KIN, JJ.
   PER CURIAM.

Affirmed. Breedlove v. State, 413 So.2d 1 (Fla.1982), cert. denied, - U.S. -, 103 S.Ct. 184, 74 L.Ed.2d 149 (1982); Zeigler v. State, 402 So.2d 365 (Fla.1981), cert. denied, 455 U.S. 1035, 102 S.Ct. 1739, 72 L.Ed.2d 153 (1982).


author: FERGUSON, Judge.

text:
    Jorge DeMOYA, Appellant, v. William R. WALSH, Appellee.
    Nos. 83-848, 83-1580.
    District Court of Appeal of Florida, Third District.
    Nov. 8, 1983.
    Rehearing Denied Dec. 21, 1983.
    Miguel A. Pirez-Fabar, Coral Gables, for appellant.
    Linda Gurfein Miklowitz and John H. Beck, Tallahassee, for appellee.
    Before SCHWARTZ, C.J., and FERGUSON and JORGENSON, JJ.
   FERGUSON, Judge.

Appellee’s characterization of his government co-worker as a “raving maniac” and “raving idiot”, during the course of a heated professional disagreement in the presence of a small group of other co-workers, may have been personally insulting, but did not constitute actionable slander. Compare Eastern Airlines, Inc. v. Gellert, 438 So.2d 923 (Fla. 3d DCA 1983) (a statement that although ostensibly in the form of an opinion “implies the allegation of undisclosed defamatory facts as the basis for the opinion” is actionable) with other cases cited therein, e.g., Wetzel v. Gulf Oil Corp., 455 F.2d 857 (9th Cir.1972) (calling plaintiff “nuts” and “crazy” in context of and in response to plaintiff’s demand that gas station pay for costs incurred when attendant at defendant’s gas station allegedly added wrong fluid to brake fluid considered to be non-actionable expression of pure opinion based on disclosed facts); Lampkin-Asam v. Miami Daily News, Inc., 408 So.2d 666, 667 n. 1 (Fla. 3d DCA 1981), rev. denied, 417 So.2d 329 (Fla.), appeal dismissed, - U.S. -, 103 S.Ct. 29, 74 L.Ed.2d 44 (1982) (article characterizing accusations made by plaintiff as “almost paranoid” considered to be expression of pure opinion entitled to absolute constitutional protection).

The record supports the trial court’s determination that, as a matter of law, the statements sued on were pure opinion based on disclosed facts. See From v. Tallahassee Democrat, Inc., 400 So.2d 52, 56-57 (Fla. 1st DCA 1981), rev. denied, 412 So.2d 465 (Fla.1982).

Summary judgment is AFFIRMED.


author: SCHWARTZ, Chief Judge.

text:
    Richard FLEISCHMAN, Appellant, v. DEPARTMENT OF PROFESSIONAL REGULATION, Appellee.
    No. 83-1081.
    District Court of Appeal of Florida, Third District.
    Nov. 8, 1983.
    Rehearing Denied Dec. 21, 1983.
    Manuel E. Oliver, Hialeah, for appellant.

      Gary L. Printy, Sr., Longwood, for appel-lee.
    Before SCHWARTZ, C.J., and HENDRY and FERGUSON, JJ.
   SCHWARTZ, Chief Judge.

The Florida Real Estate Commission suspended the appellant Fleischman’s salesman’s license for 18 months solely because he did not return a deposit he received on a real estate transaction undertaken entirely on his own account. Upon the holding that Section 475.25(l)(d), Florida Statutes (1981) does not, as the commission ruled, authorize the imposition of discipline in these circumstances, we reverse.

The operative facts, as found by the hearing examiner and adopted by the commission, are starkly simple and essentially un-controverted. Fleischman advertised to lease a parcel of real property which he personally owned. In the course of the negotiations which resulted, Oscar Rodriguez wrote Fleischman a $2,500 check as a part of a projected $5,000 total deposit. There was no specific agreement as to whether the sum was refundable; Fleisch-man did not affirmatively inform Rodriguez that it was not and continued to seek a lessee subsequent to receiving the check. After neither the proposed lease nor an outright purchase of the property, which was also discussed, went through, Rodriguez demanded the return of the $2,500. Fleischman, claiming he was entitled to retain the sum, refused, and the present proceeding was thereupon commenced against him.

The commission neither alleged, proved nor found — as it manifestly could not under these facts — that Fleischman was guilty of fraud, dishonest dealing or the like under Section 475.25(l)(b)(c), Fla.Stat. (1981). Rather, it claimed, and based its finding upon the conclusion only that his failure to return the $2,500 violated Sec. 475.25(l)(d). That provision states that a real estate licensee may be disciplined if he

[h]as failed to account or deliver to any person, including a licensee under this chapter, at the time which has been agreed upon or is required by law or, in the absence of a fixed time, upon demand of the person entitled to such accounting and delivery, any personal property such as money, fund, deposit, check, draft, abstract of title, mortgage, conveyance, lease, or other document or thing of value, including a share of a real estate commission, or any secret or illegal profit, or any divisible share or portion thereof, which has come into his hands and which is not his property or which he is not in law or equity entitled to retain under the circumstances. However, if the licensee, in good faith, entertains doubt as to what person is entitled to the accounting and delivery of the escrowed property, or if conflicting demands have been made upon him for the escrowed property, which property he still maintains in his escrow or trust account, the licensee shall promptly notify the commission of such doubts or conflicting demands and shall promptly:
1. Request that the commission issue an escrow disbursement order determining who is entitled to the escrowed property;
2. With the consent of all parties, submit the matter to arbitration; or
3. By interpleader or otherwise, seek adjudication of the matter by a court. If the licensee promptly employs one of the escape procedures contained herein, and if he abides by the order or judgment resulting therefrom, no administrative complaint may be filed against the licensee for failure to account for, deliver, or maintain the escrowed property.

It seems clear to us that this statute does not apply to a situation, like this, in which there is no more than a simple dispute — ordinarily resolvable in civil proceedings— over who is entitled to a given sum of money.

It is well-settled, on the one hand, that, absent clear legislative authorization to the contrary, violations of mere contractual rights are concerns only of the courts, and may not be enforced by disciplinary action undertaken by a regulatory agency like the real estate commission. Cannon v. Florida Real Estate Commission, 221 So.2d 240 (Fla. 4th DCA 1969), cert. denied, 226 So.2d 817 (Fla.1969); Peck Plaza Condominium v. Division of Florida Land Sales and Condominiums, 371 So.2d 152 (Fla. 1st DCA 1979); see generally, Annot., Revocation or suspension of real-estate broker’s license for conduct not connected with business as broker, 22 A.L.R. 4th 136 (1983). Moreover, since disciplinary statutes are penal in character and effect, they must, in any case, be strictly interpreted against the authorization of discipline and in favor of the person sought to be penalized. State ex rel. Jordan v. Pattishall, 99 Fla. 296, 126 So. 147 (1930); 30 FlaJur. Statutes § 132 (1974). Even without the aid of these general rules, however — and thus all the more obviously with it — we believe the correctness of our view of subsection (d) is demonstrated on the face of the provision itself. Every statute must be read as a whole with meaning ascribed to every portion and due regard given to the semantic and contextual interrelationship between its parts. 30 FlaJur., supra, § 118. In this instance, the latter portion of the subsection repeatedly refers to the “personal property ... or other document or thing of value” described in general terms in the first sentence as “the escrowed property.” Thus, fairly, common-sensibly and grammatically considered, 30 FlaJur., supra, § 93, the reach of subsection (d) is confined to unjustified refusals to account for or return property received in trust or “escrow” by a real estate licensee in his professional capacity. Such a dereliction is one which plainly may and should be the subject of discipline by the commission, but it was just as plainly not involved here.

The $2,500 given Fleischman as a deposit or earnest money in a proposed deal which involved his own property was in no sense “escrowed property.” That term by definition refers to property placed with a stakeholder or third party not involved in the transaction itself. Smith v. Macbeth, 119 Fla. 796, 161 So. 721 (1935); Cowman v. Allen Monuments, Inc., 500 S.W.2d 223 (Tex.Civ.App.1973); see generally, 22 Fla. Jur.2d Escrow § 3 (1980). Whether Fleischman would have been civilly required to return the deposit as an unauthorized penalty, instead of retaining it as legitimate liquidated damages, 17 Fla.Jur.2d Damages § 98 et seq. (1980), his failure to do so cannot be made accountable to the commission’s regulatory authority. This conclusion is made clear by Hogg v. Real Estate Commissioner, 54 Cal.App.2d 712, 129 P.2d 709 (1942), which involved a virtually identical situation. In reversing the discipline imposed upon a broker because he failed to return a down payment on his own property, notwithstanding .a finding that this conduct was “dishonest,” the court held

in the absence of any evidence showing bad faith, it is our conclusion that the finding that [the broker] was, in this transaction, dishonest, cannot be sustained. Stated another way, it cannot be held that appellant is guilty of ‘dishonesty’ for refusing to pay back a sum of money which in good faith he claims he is entitled to retain. Whether or not the legal objections raised by appellant against refunding the down payment are well taken must be determined, of course, in an action which may be brought to recover that sum. They are not issues which may be here decided....

129 P.2d at 712.

The appellee’s heavy reliance for affirmance on Sellars v. Florida Real Estate Com mission, 380 So.2d 1052 (Fla. 1st DCA 1979), rev. denied, 389 So.2d 1114 (Fla.1980) is totally misplaced. Sellars indeed holds that a broker may be disciplined for improprieties in conducting his own personal real estate transactions. But this conclusion was based upon a violation of what is now Sec. 475.25(l)(b), which expressly proscribes

fraud, misrepresentation, concealment, false promises, false pretenses, dishonest dealing, trick, scheme or device, culpable negligence, or breach of trust in any business transaction....

380 So.2d at 1053. To repeat, Fleischman was not even accused of any such misconduct. As its counsel acknowledged at oral argument, the literal interpretation of subsection (d) which the appellee urges upon us would include every transaction in which a licensee becomes personally involved; it is not restricted to real estate transactions in particular or even to commercial obligations in general. Under this view, discipline might thus be imposed if one does not return a disputed deposit on a refrigerator or used car or even fails to repay a promissory note so long as the commission finds that “in law and equity” he was not entitled to do so. We cannot and do not believe, however, that, by the enactment of Sec. 475.-25(l)(d), the legislature meant to subject Florida real estate licenses to the jeopardy of a simple breach of contract to pay money or return property.

For these reasons, the order under review is reversed and the cause remanded with directions to dismiss the complaint.

      .While this question is not before us and we therefore express no opinion concerning it, we do note that Rodriguez has never filed such an action and did not even appear at Fleischman’s hearing before the trial examiner; only his attorney did so. It appears therefore that this disciplinary proceeding was improperly used as an instrumentality to redress what was at most a purely civil complaint.

      . To the extent that this determination is contrary to Roberts v. Ayers, 380 So.2d 1057 (Fla. 1st DCA 1979), the precise holding of which is unclear, we obviously disagree with that decision.

      . As has been and will be pointed out, no such claim was even asserted in this case.


text:
    Edmund MARGIEWICZ and Eleanore Margiewicz, his wife, and Violet Friedman, Appellants, v. TERCO PROPERTIES OF MIAMI BEACH, INC., a Florida corporation, and Circle T Land and Cattle Corporation, a Florida corporation, Appellees.
    No. 83-1360.
    District Court of Appeal of Florida, Third District.
    Nov. 8, 1983.
    Rehearing Denied Dec. 21, 1983.
    Stuart J. Edelman and Claudia B. Green-berg, Coral Gables, for appellants.
    Terrence E. Rosenberg, Miami, for appel-lees.
    Before HUBBART, NESBITT and JOR-GENSON, JJ.
   PER CURIAM.

We reverse the final order of involuntary dismissal and final judgment of the trial court, and remand for a new trial on the question whether there was a valid assignment. The trial court ruled that in the absence of any endorsement, the note (and the mortgage securing the note) could not be transferred. This ruling precluded the presentation of full evidence concerning the validity of the assignment and any defenses to the mortgage foreclosure. Endorsement is a prerequisite to transfer by negotiation. § 673.201, Fla.Stat. (1981). However, it is also possible to transfer a note by assignment. Moses v. Woodward, 109 Fla. 348, 140 So. 651, reh’g granted, 109 Fla. 348, 141 So. 117 (1932), rev’d on other grounds, 109 Fla. 348, 147 So. 690 (1933). See also Potter v. Smith, 152 So.2d 513, 514 (Fla. 3d DCA 1963). When a note secured by a mortgage is assigned, the mortgage follows the note into the hands of the assignee. Manufacturers’ Trust Co. v. People’s Holding Co., 110 Fla. 451, 149 So. 5 (1933); Baker v. Rowe, 102 Fla. 622, 136 So. 681 (1931); Collins v. W.C. Briggs, Inc., 98 Fla. 422, 123 So. 833 (1929). See also Davis v. West, 114 So.2d 703 (Fla. 2d DCA 1959).

Reversed and remanded.


author: MILLS, Judge.

text:
    Jose Alfredo DIAZ and Jay Bryant Lytle, Appellants, v. STATE of Florida, Appellee.
    Nos. AP-136, AP-137.
    District Court of Appeal of Florida, First District.
    Nov. 9, 1983.
    Rehearing Denied Dec. 14, 1983.
    John Weed, Perry, for appellants.
    Jim Smith, Atty. Gen., Gregory C. Smith, Asst. Atty. Gen., for appellee.
   MILLS, Judge.

Diaz and Lytle appeal convictions for trafficking in cannabis in excess of one hundred pounds, but less than two thousand pounds. We affirm.

We find no error in the first two issues raised by Diaz "and Lytle. These alleged errors are essentially the same as those this panel found to be without merit when raised by Morito, a codefendant. Morito v. State, 438 So.2d 836 (Fla. 1st DCA 1983).

Diaz and Lytle’s contention that Section 893.135, Florida Statutes (1981), the drug trafficking statute, is unconstitutional is also without merit. State v. Benitez, 395 So.2d 514 (Fla.1981).

The final issue raised by Diaz and Lytle is whether the trial court erred when it refused to allow defense counsel to cross-examine Vines, a paid informant and key witness for the prosecution, about Vines’ testimony before a magistrate in North Carolina. The proceedings in that state were completely unrelated to the parties and proceedings in the matter under consideration and occurred after the arrest of Diaz and Lytle. The line of questioning was properly excluded as irrelevant because it would not have been useful in assessing Vines’ credibility or the probative value of his direct testimony. Cf. Morrell v. State, 335 So.2d 836 (Fla. 1st DCA 1976).

AFFIRMED.

SHIVERS and ZEHMER, JJ., concur.


text:
    Martin KLESH, Appellant, v. UNEMPLOYMENT APPEALS COMMISSION, Appellee.
    No. AQ-456.
    District Court of Appeal of Florida, First District.
    Nov. 9, 1983.
    Martin Klesh, pro se.
    ' A. Robert Whaley, Tallahassee, for appel-lee.
   MILLS, Judge.

Klesh appeals an order of the Unemployment Appeals Commission affirming a decision of an appeals referee denying unemployment compensation.

Klesh’s failure to utilize an available grievance procedure to challenge the allegations of misconduct contained in the unsatisfactory job evaluations supports the finding that Klesh voluntarily left his employment without good cause. Quick v. North Central Florida Community Mental Health Center, 316 So.2d 301 (Fla. 1st DCA 1975); Board of County Commissioners, Citrus County v. Florida Department of Commerce, 370 So.2d 1209 (Fla. 2d DCA 1979).

AFFIRMED.

SHIVERS and ZEHMER, JJ., concur.


author: JOANOS, Judge.

text:
    MOHICAN VALLEY, INC., d/b/a Indian Woods, Appellant, v. DIVISION OF FLORIDA LAND SALES AND CONDOMINIUMS, Appellee.
    No. AS-362.
    District Court of Appeal of Florida, First District.
    Nov. 9, 1983.

      Ladd H. Fassett of Smathers, Pleus, Adams, Fassett & Divine, P.S., Orlando, for appellant.
    Harold F.X. Purnell, General Counsel, Dept, of Business Regulation, Tallahassee, for appellee.
   JOANOS, Judge.

Following preliminary proceedings, including proposal of a consent order by the Division of Land Sales (“the Division”) to Mohican Valley, Inc. (“Mohican”) and a notice of intent to file administrative charges alleging non-compliance with Chapter 498, Florida Statutes, the Division served Mohican, on December 14, 1982, with a notice to show cause why a cease and desist order should not be issued and civil penalties assessed. This notice provided that Mohican had 21 days within which to request either an informal conference or a formal hearing and gave specific instructions for requesting such procedures in writing. Mohican did not request a hearing within the 21 day period, but instead, in a letter dated December 20, 1982, Mr. Divine on behalf of Mohican wrote to Mr. Mullins of the Division stating that he had received the notice to show cause and was surprised by it because they had been in contact with one another by telephone, although he realized there were a few loose ends to be tied up. After discussing what he understood to be the main concern of the Division, Mr. Divine closed the letter by asking that Mr. Mullins let him know if his understanding of the matter was incorrect. Mr. Divine did not request a hearing of any kind in this letter or at any time during the 21 day period.

On January 18, 1983, after the 21 day period had passed, Mr. Mullins wrote Mr. Divine that Divine had failed to forward a copy of a lease discussed in the December 20, 1982, letter, and asked that a copy be sent to the Division. On March 9,1983, the Division issued a final order pursuant to the notice to show cause, finding that Mohican had waived its right to an administrative hearing by failing to request one and finding Mohican in violation of Chapter 498, ordering Mohican to cease and desist its operations, and assessing a civil penalty. On March 10, 1983, Mohican filed a request for a formal hearing on the issues raised in the notice to show cause. The Division did not respond to Mohican’s request or a later motion for reconsideration and request for hearing, or to a motion to compel ruling and amendments to motion for reconsideration, therefore Mohican filed a notice of appeal in this court.

Mohican argues it did not intentionally waive hearing and that the Division misled them to believe a formal request for hearing was unnecessary because of continuing “vigorous negotiations.” Mohican refers specifically to the proposed consent order, his request of December 20, 1982, that the Division let him know if he had misapprehended the state of affairs, and Mr. Mullins’ January, 1983 letter regarding a copy of the proposed lease. Mohican asserts that the Division should be estopped from claiming the right to hearing was waived because it led Mohican to believe settlement was imminent. We disagree and affirm the Division’s final order.

Mohican was provided a clear point of entry into administrative proceedings in the form of the notice to show cause issued December 14,1982, which specifically provided that Mohican had 21 days in which to request a hearing in writing. Therefore the cases on which Mohican relies, Capeletti Brothers v. Department of Transportation, 362 So.2d 346 (Fla. 1st DCA 1978), and Szkolny v. State Awards Committee, 395 So.2d 1290 (Fla. 1st DCA 1981), are not pertinent. See Dickerson v. Rose, 398 So.2d 922 (Fla. 1st DCA 1981). Henry v. Department of Administrative, 431 So.2d 677 (Fla. 1st DCA 1983), is distinguishable because the agency’s letter in that case failed to state the available remedies and time period within which they could be sought. In the present case, while appellant sent a letter to the Division within the 21 day period indicating he thought the problems had been largely resolved and asking the agency to let him know if his assumption was incorrect, this was the only communication by either party during the 21 day period. During that time the Division did not respond to appellant’s letter, and appellant did not request a hearing in writing. Therefore, appellant waived the clear point of entry provided by continuing a course of unresponsive communications. The proposed consent order has no effect on the point of entry since it was proposed long before the notice to show cause issued. The Division’s letter of January 18,1983, informing appellant that they had not included a copy of the “revised” lease with the December 20 letter can be viewed as giving appellant one more opportunity to show compliance with Chapter 498 before entering a final order even though appellant failed to take advantage of the clear point of entry provided, but the letter does not provide a basis for estoppel because it was sent after the 21 day period had expired with no request for hearing by appellant.

The other issues Mohican raised do not require discussion. The final order is AFFIRMED.

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


text:
    Gilbert BUITRON, Appellant, v. STATE of Florida, Appellee.
    No. 82-2018.
    District Court of Appeal of Florida, Fourth District.
    Nov. 9, 1983.
    Rehearing Denied Jan. 13, 1984.

      Michael J. Entin, Fort Lauderdale, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Grace M. Gonzalez and Joan Fowler Rossin, Assts. Atty. Gen., West Palm Beach, for appellee.
   PER CURIAM.

Affirmed. See State v. Grant, 392 So.2d 1362 (Fla. 4th DCA 1981), petition for review denied, 402 So.2d 610 (Fla.1981).

GLICKSTEIN, HURLEY and WALDEN, JJ., concur.


author: FERGUSON, Judge. BASKIN, Judge FERGUSON, Judge. BASKIN, Judge

text:
    Gregorio RODRIGUEZ, Appellant, v. The STATE of Florida, Appellee.
    No. 82-262.
    District Court of Appeal of Florida, Third District.
    Jan. 25, 1983.
    On Rehearing En Banc Nov. 22, 1983.

      Kalter & Kutner and Robert Kalter, Miami, for appellant.
    Jim Smith, Atty. Gen. and Paul Mendel-son and Penny Hershoff Brill, Asst. Attys. Gen., for appellee.
    Before HENDRY, BASKIN and FERGUSON, JJ.
   FERGUSON, Judge.

The single question presented for review is whether a sentence imposed after a seven-week period of probation, which probation was agreed to by the defendant as an alternative to bail or incarceration while awaiting a presentence investigation, violates the double jeopardy clause of the United States Constitution.

After many hours of investigative work, law enforcement officers identified appellant as part of a check forgery ring which had defrauded local businesses of hundreds of thousands of dollars. Rodriguez admitted to having cashed approximately $170,-000 worth of forged checks using stolen drivers’ licenses, then entered a plea of guilty to twenty-three informations containing some seventy-five felony counts, including one count of first-degree grand theft. The condition of the plea offer was a “cap” (maximum) of ten years incarceration with the final sentence to be decided after the court had reviewed a presentence investigation report. At the plea hearing, the state voiced concern that the defendant would flee the jurisdiction if permitted to remain at liberty under a $20,000 bond while awaiting sentencing. An agreement was reached whereby appellant would remain at liberty on a short term of probation pending preparation and submission of the presentence report. Pertinent parts of the colloquy follow:

THE COURT: I can do one of two things: I can take the plea as contemplated and put him on probation with a special condition that he do a PSI, or I can see that he remains in jail, or I can increase the bond.
[DEFENSE COUNSEL]: Why would you have to do any of those?
THE COURT: Insurance to the State that he will be here. I agree with the State that at this time his chances are greater now that there is an agreed termination.
THE COURT: I will take the plea and as part of the negotiations will be that he be placed on probation pending the presen-tence investigation and any failure to appear at the time of the presentence investigation will be a violation of his probation and he could get the maximum.
[DEFENSE COUNSEL]: Let me explain that to him, Judge.
THE COURT: I will explain it to him. It is contemplated now that if you enter a plea of guilty to these charges that the court will order a presentence investigation. Depending on the outcome of the presentence investigation, you could receive up to ten years in jail, from zero to ten years.
THE DEFENDANT: I understand.
THE COURT: The State Attorney is afraid that you are going to run, that you will not appear, and he asks the Court to take some assurance that you do appear.
The Court will do this: To assure that you will appear, the Court will accept the plea today and as part of the plea today will place you on a probation, and part of that probation is that you appear here on a particular day six weeks from now, whatever the date is, for imposition of sentence, which would be to ten years....
THE DEFENDANT: I understand.
[DEFENSE COUNSEL]: What do you want to do? Do you want to go on that probation?
THE DEFENDANT: Yes.

The court then entered an order, signed by the defendant, placing him on probation on all eases for a seven-week period with a special condition that defendant appear in court, after the Christmas holidays, for a disposition hearing. On January 13, 1982, appellant appeared before the court for sentencing as agreed. The court imposed a ten-year sentence to be followed by a ten-year period of probation. Appellant objected to the period of probation which was imposed to follow the ten-year sentence, but never challenged the legality of the ten-year sentence or the probation which was granted as a condition of release pending sentencing.

[DEFENSE COUNSEL]: Judge, for the record, I think I have to place an objection on the ten years consecutive probation to the ten years state prison. The agreements we had in discussions were a total liability for ten years. Actually, he is ending up with and [sic] open-end liability. He is going to get ten years prison and still be liable, once again, ten years for all these cases. This is something that goes far beyond the discussions with the State and the Court.

Otherwise it had been agreed that there was no legal reason why the sentence should not be imposed. For the reason that the defendant agreed to and benefited from the probation granted as a substitute for bail or incarceration, he has waived the right to attack the sentence by this appeal. See Preston v. State, 411 So.2d 297 (Fla. 3d DCA 1982) (where youthful offender placed on probation, the terms of which he fully accepted, enjoyed, then violated, he waived the right to question the legality of the probation); King v. State, 373 So.2d 78 (Fla. 3d DCA 1979) (having accepted and enjoyed an unlawfully lenient probation in lieu of mandatory confinement, defendant waived the right to question the legality of the probation).

The case of Buckbee v. State, 378 So.2d 39 (Fla. 3d DCA 1979), though close on the facts, is distinguishable. In Buckbee, the condition upon which the court sought to revoke the defendant’s probation was not a part of the formal probation order and, even if it had been, was the kind of condition which required a hearing and finding of violation before probation could be revoked. The probation graciously granted herein expressly contemplated that no violation of probation was required in order for the negotiated sentence to be imposed.

There is no lack of jurisdiction herein to impose the sentence. A sentence is not “imposed” until a sentencing hearing is concluded. Farber v. State, 409 So.2d 71, 73 (Fla. 3d DCA 1982). It was agreed by all concerned that there would be no sentencing until January 13, 1982, on which date the first and only “sentencing” occurred. But even if there otherwise might have been a jurisdictional bar, by the nature of the agreement appellant clearly waived any jurisdictional impediments. Cf. Tucker v. State, 417 So.2d 1006 (Fla. 3d DCA 1982) (although statute of limitations is said to be a jurisdictional bar to prosecution on lesser included offenses, a defendant can waive the bar if he thinks it does not work to his advantage); Oliver v. State, 379 So.2d 143 (Fla. 3d DCA 1980) (where defendant was charged with first-degree murder, a capital offense having no statute of limitations, and trial court thereafter accepted negotiated plea of nolo contendere to second-degree murder, defendant was estopped to subsequently assert applicability of statute of limitations for second-degree murder); Lerman v. Cornelius, 423 So.2d 437 (Fla. 5th DCA 1982) (Case No. 82-1214, opinion filed December 1, 1982) (double jeopardy no bar to reopening a case after sentencing where a condition of the plea had not been performed). See also Buckbee, 378 So.2d at 41 (Schwartz, J., dissenting).

On these facts we reject appellant’s contention that by having appeared in court on January 13, 1982 he satisfied the special condition of probation and became, thereupon, entitled to be forever discharged. “The Constitution does not require that sentencing be a [technical] game in which a wrong move by a judge means immunity for the prisoner.” Farber v. State, 409 So.2d at 72, citing Bozza v. United States, 330 U.S. 160, 166-167, 67 S.Ct. 645, 649, 91 L.Ed. 818, 822 (1947). The judicial act complained of herein was entirely consistent with what was intelligently agreed upon, manifestly in appellant’s best interest.

Affirmed.

BASKIN, Judge

(dissenting).

Defendant Rodriguez pled guilty to pending forgery and first-degree grand theft charges. The plea negotiations provided that he receive no more than ten years’ imprisonment following the court’s review of a presentence investigation (PSI) report. During preparation of the PSI, the court released Rodriguez on probation for seven weeks. As a condition of the probation, Rodriguez was required to appear in court on a specified date for resentencing. He appeared as required, and the court sentenced him to serve ten years in prison followed by ten years on probation. According to Rodriguez, the first probation imposed by the trial court constituted his lawful sentence, and the court was precluded from imposing the prison sentence by constitutional prohibitions against double jeopardy. I agree with Rodriguez’s contentions. In my opinion, the trial court’s utilization of probation as an alternative to bail during the period between acceptance of the plea and the subsequent sentencing constituted error. Rodriguez’s consent offers no basis for affirmance because the court lost jurisdiction to impose another sentence in the absence of a violation of probation. Furthermore, his consent was not the product of free choice. By approving the novel use of probation in lieu of bail, the majority departs from established principles of law and embarks upon an unauthorized foray into judicial legislation. The result is in direct contravention of existing law.

The question at issue is whether, instead of releasing a defendant on bail after accepting a plea, the court may place him on a period of probation during preparation of the PSI and, at a later time, impose another sentence even though he has completed the probation and no grounds exist for revocation. In my opinion, the procedure employed by the court is prohibited for several reasons. First, section 948.04(2), Florida Statutes (1981) states:

(2) Upon the termination of the period of probation, the probationer shall be released from probation and shall not be liable to sentence for a crime for which probation was allowed, (emphasis added).

Probation may not serve as an alternative for bail for other reasons. For example, a defendant who is found by the court to be suitable for probation may be placed on probation under the supervision and control of the probation and parole commission, Florida Rule of Criminal Procedure 3.790, only if the court finds that he “is not likely again to engage in a criminal course of conduct and that the ends of justice and the welfare of society do not require that the defendant shall presently suffer the penalty imposed by law....” § 948.01(3), Fla.Stat. (1981). Until the PSI is completed and the court afforded an opportunity to review its findings, the court lacks sufficient information to conclude that probation is appropriate. Under these circumstances, the court should avail itself of applicable post-trial release procedures already in existence. Florida Rule of Criminal Procedure 3.550 and Florida Rule of Criminal Procedure 3.691 authorize bail.

Under Florida Rule of Criminal Procedure 3.790, the court should have selected either probation or imprisonment. Rule 3.790 authorizes the court to impose sentence only upon revocation of probation.

Multiple sentences for the same offense are condemned by double jeopardy prohibitions. In Ex parte Lange, 85 U.S. (18 Wall.) 163, 21 L.Ed. 872 (1874), the United States Supreme Court addressed double jeopardy questions as they applied to sentencing. Edward Lange, found guilty of appropriating to his own use mail bags valued at less than $25, was sentenced to serve one year in prison and to pay a $200 fine, although the applicable statute permitted a sentence of either imprisonment or a fine. Lange paid the fine and sought a writ of habeas corpus. Upon discovering his error, the trial judge vacated the sentence and resentenced Lange to serve one year in prison. The Supreme Court granted the writ and overturned the prison sentence, not on grounds of mere technicality, but on the settled prohibition against repeated punishment for the same offense, stating:

If there is anything settled in the jurisprudence of England and America, it is that no man can be twice lawfully punished for the same offense. And though there have been nice questions in the application of this rule to cases in which the act charged was such as to come within the definition of more than one statutory offense, or to bring the party within the jurisdiction of more than one court, there has never been any doubt of its entire and complete protection of the party when a second punishment is proposed in the same court, on the same facts, for the same statutory offense.

85 U.S. (19 Wall.) at 168, 21 L.Ed. at 876.

Constitutional mandates against double jeopardy guarantee a defendant an expectation that his sentence will be final when commenced, subject to appeal. See United States v. DiFrancesco, 449 U.S. 117, 101 S.Ct. 426, 66 L.Ed.2d 328 (1980). Resen-tencing a defendant who has served his sentence is as prohibited as retrying a defendant who has already been convicted.' Thus, in Lange, the Supreme Court of the United States ruled violative of double jeopardy the prison sentence imposed after payment of the fine, whereas, in Bozza v. United States, 330 U.S. 160, 67 S.Ct. 645, 91 L.Ed. 818 (1947), it approved the mandatory fine added to the original sentence Bozza had not begun to serve. Rodriguez’s position is similar to Lange’s. He had fulfilled the sentence of probation before the court imposed another sentence for the same offense.

Unlike Preston v. State, 411 So.2d 297 (Fla. 3d DCA 1982) and King v. State, 373 So.2d 78 (Fla. 3d DCA 1979), cited by the majority, in which each defendant’s acceptance of an unlawful sentence was held to estop him from challenging its validity, Rodriguez received a lawful sentence of probation; accordingly, no additional sentence could be added without violating the double jeopardy clauses of the United States and Florida Constitutions. See also Troupe v. Rowe, 283 So.2d 857 (Fla.1973); Smith v. Brown, 135 Fla. 830, 185 So. 732 (1938); Scott v. State, 419 So.2d 1178 (Fla. 3d DCA 1982); Andrews v. State, 357 So.2d 489 (Fla. 1st DCA 1978); Katz v. State, 335 So.2d 608 (Fla. 2d DCA 1976); cf. Buckbee v. State, 378 So.2d 39 (Fla. 3d DCA), cert. denied, 388 So.2d 1118 (Fla.1980) (trial court lacks jurisdiction to add condition requiring jail time to term of probation).

The improper use of probation may not be justified upon the theory that Rodriguez consented to the procedure. First, jurisdiction to impose a second sentence cannot be conferred by estoppel where no jurisdiction exists. Sweeting v. State, 390 So.2d 773 (Fla. 3d DCA 1980). Second, Rodriguez was hardly in a position to refuse the court’s offer of release; the alternative of continuing bail was not approved. Under these circumstances, Rodriguez’s choice could hardly be deemed a voluntary waiver of his right against double punishment, even if such a waiver existed.

For these reasons, I would hold that once Rodriguez received a legal sentence of probation, the court lost jurisdiction to resen-tence him unless a violation of that probation was properly charged and proved.

Before SCHWARTZ, C.J., and HENDRY, BARKDULL, HUBBART, NESBITT, BAS-KIN, DANIEL S. PEARSON, FERGUSON and JORGENSON, JJ.

EN BANC REHEARING

FERGUSON, Judge.

We adhere to the opinion of January 25, 1983 which holds that any double jeopardy claim appellant may have had was clearly waived. The opinion is, however, modified as follows.

The trial court had jurisdiction over the defendant and the subject matter for the purpose of revoking the probation and imposing a sentence. Jurisdiction of the subject matter is fixed by law and, in the ordinary sense, refers to the court’s authority to take cognizance of and decide a case, or its power to hear and determine a cause. Tucker v. State, 417 So.2d 1006, 1009 (Fla. 3d DCA 1982); 15 Fla.Jur.2d Criminal Law § 559. Appellant concedes that when the case came on for the scheduled sentencing hearing on January 13, 1982, the court had authority over the subject matter for the purpose of doing a number of things, e.g., extending the probationary period if necessary in order to complete a presentence report, or terminating the probation. By that concession it follows that broad subject matter jurisdiction also exists, subject to statutory or judicially created limitations on the court’s acceptance of jurisdiction, none of which are present here. See, e.g., Greene v. Greene, 432 So.2d 62, 66 n. 7 (Fla. 3d DCA 1983).

Appellant’s argument is actually one of double jeopardy. Double jeopardy is often incorrectly described as a jurisdictional bar to an illegal sentence. See, e.g., Sweeting v. State, 390 So.2d 773 (Fla. 3d DCA 1980) (the court is without subject matter jurisdiction to vacate a sentence and impose probation even if accomplished within the sixty-day limit imposed by Florida Rule of Criminal Procedure 3.800(b) for reducing or modifying a sentence); Buckbee v. State, 378 So.2d 39 (Fla. 3d DCA 1979), cert. denied, 388 So.2d 1118 (Fla.1980) (the court is without jurisdiction during a period of probation to modify the otherwise valid probation to add jail time); Scott v. State, 419 So.2d 1178 (Fla. 3d DCA 1982) (court had no jurisdiction to vacate and aggravate its previously imposed sentence on the basis of defendant’s subsequent violation of the condition of his plea agreement). Subject matter jurisdiction and double jeopardy are two distinctly different concepts. Subject matter jurisdiction cannot be conferred by waiver or consent, Cancela v. State, 147 Fla. 500, 2 So.2d 859 (Fla.1941); Sclafani v. County of Dade, 323 So.2d 675 (Fla. 3d DCA 1975), and may be raised at any time. Tamiami Trail Tours, Inc. v. Wooten, 47 So.2d 743 (Fla.1950); Schmauss v. Snoll, 245 So.2d 112 (Fla. 3d DCA), cert. denied, 248 So.2d 172 (Fla.1971). The defense of former jeopardy can be waived. Peel v. State, 150 So.2d 281 (Fla. 2d DCA 1963), appeal dismissed, 168 So.2d 147 (Fla.1964), cert. denied, 380 U.S. 986, 85 S.Ct. 1359, 14 L.Ed.2d 279 (1965); Davis v. State, 392 So.2d 947 (Fla. 3d DCA 1980). A court’s subject matter jurisdiction is unaffected by acts which may be illegal, i.e., the imposition of a sentence which violates the constitutional proscription against twice being placed in jeopardy, United States v. Benz, 282 U.S. 304, 51 S.Ct. 113, 75 L.Ed. 354 (1931), or the imposition of a sentence which exceeds that which is statutorily permissible, King v. State, 373 So.2d 78 (Fla. 3d DCA 1979), cert. denied, 383 So.2d 1197 (Fla.1980). The rule is best stated in United States v. Benz, relied upon by both parties:

The distinction that the court during the same term may amend a sentence so as to mitigate the punishment, but not so as to increase it, is not based upon the ground that the court has lost control of the judgment in the latter case, but upon the ground that to increase the penalty is to subject the defendant to double punishment for the same offense in violation of
the 5th Amendment to the Constitution. ... Benz, 282 U.S. at 307, 51 S.Ct. at 114.

Buckbee v. State is hereby overruled. We also recede from Scott v. State and Sweeting v. State insofar as they hold that the limits of a court’s inherent power over the subject matter are defined by the extent to which its actions are lawful.

BASKIN, Judge

(dissenting).

The majority opinion holds that even though a defendant has fully served his sentence, the trial court may recall him and impose an additional sentence for the same offense! When the trial court released Rodriguez on probation rather than on bail during preparation of the presentence investigation report, it committed error. When the trial court imposed a second sentence after Rodriguez had successfully completed his probation, the trial court acted in violation of existing law. In a plethora of eases the Supreme Court of the United States and other courts have consistently condemned as alien to our judicial system the imposition of multiple sentences for a single offense. Not one decision supports the majority’s result. I am therefore compelled to dissent.

I

DOUBLE JEOPARDY

A

Estoppel and Waiver

The majority concludes that Rodriguez would have been entitled to assert the defense of double jeopardy had he not waived that defense by agreeing to probation during the preparation of the presentence investigation report. The majority’s finding of waiver, or more properly estoppel, is predicated upon the majority’s view that because he accepted the “benefit” of the trial court’s grant of probation, Rodriguez may not attack his second sentence as viola-tive of double jeopardy protections. The general rule, however, is that one may not be estopped by acceptance of that to which he is legally entitled. 28 Am.Jur.2d Estop-pel & Waiver § 60 (1966).

The trial court announced that the purpose of the probation was to insure that Rodriguez would appear for “sentencing.” Not only is there no legislative authority for such a use of probation, there is also no justification for the court’s failure to utilize the approved form of release. The appropriate procedure for insuring an appearance at a judicial proceeding is the setting of bail. Fla.R.Crim.P. 3.691. Whether one convicted of a crime should be allowed bail following an adjudication is, with certain exceptions, a matter within the discretion of the trial judge. See Younghans v. State, 90 So.2d 308 (Fla.1956). Where, as here, the trial judge exercises his discretion and determines that a defendant need not be incarcerated while awaiting sentencing, he may authorize release and insure a later appearance by setting bail. After he determines that incarceration is inappropriate, the trial judge has no other alternative than to set appropriate bail; the court lacks authority to fashion assurances not provided by law. Thus, because the court ruled he qualified for release, Rodriguez obtained no benefit when he “agreed” to probation; he received only that to which he was already entitled once the court determined that he need not be incarcerated. His “agreement” that he be released did not constitute an estoppel.

Waiver is the intentional or voluntary relinquishment of a known right, or conduct which warrants an inference of the relinquishment of a known right. Wilds v. Permenter, 228 So.2d 408, 410 (Fla. 4th DCA 1969). The choice confronting Rodriguez was to accept probation or return to jail. Because he was not released on bail, the only lawful alternative to jail, Rodriguez’s choice of probation was coerced rather than voluntary and did not constitute a waiver. Furthermore, the transcript of the hearing discloses no voluntary relinquishment of a known right:

[PROSECUTOR]: I am going to [sic] that the bond be revoked today subsequent to the plea so that we will know he will be here.
THE COURT: What are the terms of the plea?
[PROSECUTOR]: The plea is a PSI with a cap of ten years.
[DEFENSE COUNSEL]: The prosecutor may have a feeling, but he has to have some kind of proof that the defendant plans to leave the jurisdiction.
I would request that that not take place. Prior to the plea, Mr. Rodriguez has appeared in court every single time that this matter has been up.
THE COURT: What is the bond?
[DEFENSE COUNSEL]: He says twenty thousand. He has never before failed to appear. There is absolutely no reason to revoke that bond, and why should we place him in jail prior to the termination of the sentence of the PSI.
THE COURT: I can do one of two things: I can take the plea as contemplated and put him on probation with a special condition that he do a PSI, or I can see that he remains in jail, or I can increase the bond.
[DEFENSE COUNSEL]: Why would you have to do any of those?
THE COURT: Insurance to the State that he will be here. I agree with the State that at this time his chances are greater now that there is an agreed termination.
[DEFENSE COUNSEL]: He has never failed to appear for any proceeding. Ever since this entire matter came to the courts, Juvenile Court, he has always come in.
[PROSECUTOR]: The Court has discretion to do whatever it pleases.
[DEFENSE COUNSEL]: Certainly there was a potential plea being entered by the defendant as far as incarceration prior to the negotiations. On the negotiated plea, he faces countless years in the State Prison with the 23-odd cases. Certainly if he had those facing him, he would have run long ago if he had planned to. I think he is in a much better posture.
THE COURT: I will take the plea and as part of the negotiations will be that he be placed on probation pending the pre-sentence investigation and any failure to appear at the time of the presentence investigation will be a violation of his probation and he could get the maximum.
[DEFENSE COUNSEL]: Let me explain that to him, Judge.
THE COURT: I will explain it to him. It is contemplated now that if you enter a plea of guilty to these charges that the Court will order a presentence investigation. Depending upon the outcome of the presentence investigation, you could receive up to ten years in jail, from zero to ten years.
THE DEFENDANT: I understand.
THE COURT: The State Attorney is afraid that you are going to run, that you will not appear, and he asks the Court to take some assurance that you do appear.
The Court will do this: To assure that you will appear, the Court will accept the plea today and as part of the plea today will place you on a probation, and part of that probation is that you appear here on a particular day six weeks from now, whatever the date is, for imposition of sentence, which would be to ten years.
If you fail to appear on that date, you will have violated your probation and the Court could give you the maximum penalty on all of those cases. On each case, carries fifteen years, and I don’t know how many that is going to end up with, but it is longer than your lifetime, sir.
THE DEFENDANT: I understand.
THE COURT: It does not make any difference where you go, anywhere in this country, anywhere in any foreign country, there is a process of this court in which you will be found and brought back here to face charges and trust me, the State is in a position to be able to do that.
I want you to know that you face that possibility, but that is up to you. Do you understand that, sir?
THE DEFENDANT: Yes.
[DEFENSE COUNSEL]: What do you want to do? Do you want to go on that probation?
THE DEFENDANT: Yes.

Nothing in the discussion reveals either an intentional relinquishment or conduct warranting an inference of relinquishment of a known right. The court imposed a sentence of probation without advising Rodriguez of any double jeopardy rights. I therefore find no impediment to the assertion of Rodriguez’s double jeopardy defense.

B

Finality

Multiple punishments for a single offense were addressed in Ex parte Lange, 85 U.S. (18 Wall.) 163, 177, 21 L.Ed. 872, 878-79 (1874). The court stated:

We are of opinion that when the- prisoner, as in this case, by reason of a valid judgment, had fully suffered one of the alternative punishments to which alone the law subjected him, the power of the court to punish further was gone; that the principle we have discussed then interposed its shield, and forbade that he should be punished again for that offense. The record of the court’s proceedings, at the moment the second sentence was rendered, showed that in that very case and for that very offense the prisoner had fully performed, completed and endured one of the alternative punishments which the law prescribed for that offense, and had suffered five days’ imprisonment on account of the other. It thus showed the court that its power to punish for that offense was at an end. Unless the whole doctrine of our system of jurisprudence, both of the Constitution and the common law, for the protection of personal rights in that regard, are a nullity, the authority of the court to punish the prisoner was gone. The power was exhausted; its further exercise was prohibited. It was error, but it was error because the power to render any further judgment did not exist, (emphasis added).

The continuing validity of Lange was approved as recently as 1980 in United States v. DiFrancesco, 449 U.S. 117, 101 S.Ct. 426, 66 L.Ed.2d 328 (1980) when the Supreme Court of the United States reiterated the “guarantee against multiple punishment that has evolved in the holdings of this Court....” 449 U.S. at 140, 101 S.Ct. at 439.

A defendant has an interest in the finality of his sentence even though it is a lesser finality interest than he would have had following an acquittal. DiFrancesco. A comparison of Lange and Bozza v. United States, 330 U.S. 160, 67 S.Ct. 645, 91 L.Ed. 818 (1946) demonstrates the finality of a lawful sentence fully served. Lange had completed his punishment by paying a fine when the trial court attempted to resen-tence him. Because the statute provided that Lange’s sentence could have been either a fine or imprisonment, the higher court ruled that he had completely served his sentence. Lange’s interest in the finality of his sentence was very high — similar to a plea of autre fois acquit or autre fois convict. Thus, he could not be sentenced again. In Bozza, on the other hand, the defendant had not begun to serve his sentence when he was resentenced with the imposition of both a fine and imprisonment required under the statute. His resentenc-ing was approved for two reasons. First, he had not begun to serve his sentence, cf. Andrews v. State, 357 So.2d 489 (Fla. 1st DCA 1978) (defendant taken across street to jail has begun serving sentence, resen-tencing improper), and second, the fact that his original sentence was illegal entitled him to a low interest in its finality. Rodriguez’s finality interest in his original sentence is the same as Lange’s and accordingly, double jeopardy prohibitions forbid re-sentencing. Because Rodriguez received a lawful sentence of probation and served it without ground for revocation, his sentence was final under Lange.

The majority reached an incorrect conclusion because it failed to note the factual and decisional distinctions in cases dealing with resentencings. These cases are of two types: the first group of cases pertains to increases in sentences; the second group of cases relates to multiple sentences. By applying cases which deal with the power to increase sentences rather than those which govern multiple sentences, the majority has premised its result upon faulty reasoning. Furthermore, it has overlooked the Supreme Court’s affirmation that multiple sentences for a single offense are uniformly prohibited by the Constitution.

C

Separation of Powers

The power to define criminal offenses and to prescribe the punishments to be imposed upon those found guilty resides wholly in the legislature. Whalen v. United States, 445 U.S. 684, 100 S.Ct. 1432, 63 L.Ed.2d 715 (1980). Where, as here, the court exceeds its authority by imposing multiple punishments' not authorized by the legislature, it not only violates double jeopardy but, by usurping a function relegated solely to the legislature, violates the doctrine of separation of powers. Although the federal separation of powers doctrine is not binding on the states, Dreyer v. Illinois, 187 U.S. 71, 23 S.Ct. 28, 47 L.Ed. 79 (1903), separation of powers is a fundamental part of the structure of Florida government.. Art. II, § 3, Fla. Const. The judicial legislation countenanced by the majority is an overreaching of judicial authority and an incursion into that function of government constitutionally reserved to the legislature.

II

JURISDICTION

Turning next to the question of jurisdiction, I again disagree with the majority’s conclusion that the issue involved is only that of double jeopardy. Courts retain jurisdiction to reduce or to mitigate a sentence for a limited period of time, State v. Sotto, 348 So.2d 1222 (Fla. 3d DCA 1977), cert. denied, 359 So.2d 1219 (Fla.1978); State v. Evans, 225 So.2d 548 (Fla. 3d DCA), cert. denied, 229 So.2d 261 (Fla.1969), cert. denied, 397 U.S. 1053, 90 S.Ct. 1393, 25 L.Ed.2d 668 (1970); Fla.R.Crim.P. 3.800, and only for limited functions. These functions are delineated in Florida Rule of Criminal Procedure 3.800(b), which provides:

(b) A court may reduce or modify to include any of the provisions of chapter 948, Florida Statutes, a legal sentence imposed by it within sixty days after such imposition, or within sixty days after receipt by the court of a mandate issued by the appellate court upon affirmance of the judgment and/or sentence upon an original appeal, or within sixty days after receipt by the court of a certified copy of an order of the appellate court dismissing an original appeal from the judgment and/or sentence, or, if further appellate review is sought in a higher court or in successively higher courts, then within sixty days after the highest state or federal court to which a timely appeal has been taken under authority of law, or in which a petition for certiorari has been timely, filed under authority of law, has entered an order of affirmance or an order dismissing the appeal and/or denying certiorari.

Rule 3.800 authorizes the court to do only three things: (1) to reduce a legal sentence; (2) to modify within sixty days to include provisions of chapter 948; or (3) to modify a sentence within sixty days of receipt of an appellate court mandate. None of these functions applied to Rodriguez. Thus, the court retained no jurisdiction to impose an additional sentence.

It is well settled in this state that a court which imposes a lawful sentence loses jurisdiction over such sentence (except to enforce it) upon the expiration of the term of court in which the sentence was imposed, unless some constitutional or statutory provision extends the trial court’s control of its sentence for specific periods and purposes. Tanner v. Wiggins, 54 Fla. 203, 45 So. 459, 14 Ann.Cas. 718 (1907); Tucker v. State, 100 Fla. 1440, 131 So. 327 (1930); Preston v. State, 117 Fla. 618, 158 So. 135 (1934); Smith v. Brown, 135 Fla. 830, 185 So. 732 (1938); State v. Schaag, Fla.App. 1959, 115 So.2d 783.

Evans, 225 So.2d at 549-50. See also Cherry v. State, 439 So.2d 998 (Fla. 4th DCA 1983).

The statutory authority of the court is further limited by section 948.04, Florida Statutes (1981), which provides that upon termination of the period of probation, the court is required to release the probationer without subjecting him to sentence for the crime for which he received probation. Revocation of probation is a circumstance statutorily authorizing the trial court to reconsider a sentence. Only after probation is revoked may pronouncement and imposition of a second sentence be visited upon a probationer. Villery v. Florida Parole & Probation Commission, 396 So.2d 1107, 1110 (Fla.1981), and “probation may be revoked only for [a] violation of a condition set by the court.” Barber v. State, 344 So.2d 913 (Fla. 3d DCA 1977). If no grounds for revocation exist, the court lacks jurisdiction to impose a second sentence. Upon termination of the probation, the probationer must be released and “shall not be liable to sentence for the crime for which probation was allowed.” § 948.04, Fla.Stat. (1981). No basis for finding a violation of Rodriguez’s probation appears.

Upon expiration of the probationary period, the court is divested of all jurisdiction over the probationer unless prior to that time the processes of the court have been set in motion for revocation or modification of probation. Gardner v. State, 412 So.2d 10 (Fla. 2d DCA 1981); see Carpenter v. State, 355 So.2d 492 (Fla. 3d DCA 1978). Rodriguez satisfied the terms of his probation when he met the condition set by the court, that is, to appear on a particular date. The court lost jurisdiction to resen-tence.

111

CONCLUSION

Lange and its progeny make clear that the court lacked jurisdiction to recall Rodriguez at the conclusion of the successful service of his sentence for the imposition of an additional sentence. As to double jeopardy defenses, I find no evidence of waiver. Rodriguez was presented with only two choices, imprisonment or release upon a fixed period of probation. The court’s failure to afford him the release upon bond to which he was entitled by law rendered his choice the product of coercion dissipating any inference of waiver. Peel v. State, 150 So.2d 281 (Fla. 2d DCA 1968), appeal dismissed, 168 So.2d 147 (Fla.1964), cert. denied, 380 U.S. 986, 85 S.Ct. 1359,14 L.Ed.2d 279 (1965) and Davis v. State, 392 So.2d 947 (Fla. 3d DCA 1980) are totally inapplicable to the issues in this case. They are concerned with waiver by the entry of a plea.-

To arrive at its conclusion that a trial court may sentence repeatedly for a single offense, the majority was compelled to recede from three earlier cases decided by this court. It cannot, however, recede from the decisions of other Florida courts or of the Supreme Court of the United States, all of which guarantee that an individual who has fully served a sentence will not be forced to endure the imposition of additional punishment.

The majority has permitted the practice of release on probation rather than on bail to continue; I find cause for concern. It is a practice which totally disregards the mandates of statutes pertaining to the requirements for probation, ignores the statutory prohibition against sentencing following probation and disregards laws allowing bail. Furthermore, the majority ignores the fact that once an individual is released on probation he falls under the supervision of the probation and parole commission and is no longer before the court unless charged with a violation of his probation. One can only speculate as to the effect under today’s decision of a violation of probation. Under the majority holding it seems likely that had Rodriguez been found guilty of another offense during the period of his release on probation, he would then have been subject to a third sentence for the original offense.

Probation is not a substitute for bail. The court lost jurisdiction after Rodriguez successfully served his term of probation. Reversal is required.

HUBBART, J., concurs.

      . The correctness of imposing a period of probation to follow the ten-year sentence is not challenged by this appeal.

      . The dissent thinks the conviction should be reversed and appellant set free having served not a single day of the negotiated sentence. Although we conclude that reversal is not warranted on the facts of this case, we too express strong disapproval of the oft-used agreement whereby probation is substituted for bail; the practice is not authorized by statute or rule.

      . Florida Rule of Criminal Procedure 3.550 states:
      If a verdict of guilty is rendered the defendant shall, if in custody, be remanded; if he is at large on bail he may be taken into custody and committed to the proper official, or remain at liberty on the same or additional bail as the court may direct.

      . Florida Rule of Criminal Procedure 3.691(a) provides:
      (a) All persons who have been adjudicated guilty of the commission of any offense, not capital, may be released, pending review of the conviction, at the discretion of either the trial or appellate court, applying the principles enunciated in Younghans vs. State, 90 So.2d 308 (Fla.1956), provided, that no person may be admitted to bail upon appeal from a conviction of a felony unless the defendant establishes that the appeal is taken in good faith, on grounds fairly debatable, and not frivolous; provided that in no case shall bail be granted if such person has previously been convicted of a felony, the commission of which occurred prior to the commission of the subsequent felony, and such person’s civil rights have not been restored, or if other felony charges are pending against him and probable cause has been found that the person has committed the felony or felonies at the time the request for bail is made.

      . Florida Rule of Criminal Procedure 3.790 states:
      (a) Suspension of the Pronouncement and Imposition of Sentence; Probation. Pronouncement and imposition of sentence of imprisonment shall not be made upon a defendant who is to be placed on probation regardless of whether such defendant has or has not been adjudicated guilty. An order of the Court placing a person on probation shall place the probationer under the authority of the state probation and parole commission to be supervised as provided by law. The Court shall specify the length of time during which the defendant is to be supervised.
      (b) Revocation of - Probation; Judgment; Sentence. When a probationer is brought before a court charged with a violation of probation, the court shall advise him of such charge and if the charge is admitted to be true may forthwith enter an order revoking, modifying or continuing the probation. If such violation of probation is not admitted by the probationer, the court may commit him or release him with or without bail to await further hearing, or it may dismiss the charge of violation of probation. If the charge is not admitted by the probationer and if it is not dismissed, the court, as soon as may be practicable, shall give the probationer an opportunity to be fully heard in person, by counsel, or both. After such hearing, the court may enter an order revoking, modifying or continuing the probation. Following a revocation of probation, the trial court shall adjudicate the defendant, guilty of the crime forming the basis of his probation, if no such adjudication has been made previously. Pronouncement and imposition of sentence then shall be made upon such defendant (emphasis added).

      . In this opinion, a legal sentence refers to one authorized by law. When appropriate prerequisites exist, probation is a legal sentence because it is authorized by statute. In Bozza, the trial court imposed a completely unauthorized sentence which raised separation of powers problems not germane to this appeal. Rodriguez’s second sentence is illegal because the legislature has precluded the judiciary from imposing incarceration following probation.

      . The dissent states in a note that the above passage from Benz was declared dicta in United States v. DiFrancesco, 449 U.S. 117, 101 S.Ct. 426, 66 L.Ed.2d 328 (1980), which is not entirely accurate. The Supreme Court declared as dicta only so much of the passage as suggested that an increase of a sentence which the defendant has begun to serve necessarily subjects him to double punishment in violation of the Constitution. DiFrancesco went on to hold that a sentence may constitutionally be increased pursuant to the enhancement provision of the Organized Crime Control Act of 1970, 18 U.S.C. § 3576, even after appellate review of the original sentence — which is not inconsistent with our holding. The court does not say, as the dissent implies, that once a sentence is imposed a court is divested of subject matter jurisdiction to increase it. The contrary is all too obvious.

       The majority cites United States v. Benz, 282 U.S. 304, 51 S.Ct. 113, 75 L.Ed. 354 (1931) for the proposition that a court may amend a sentence. At 1131. That portion of the Benz opinion was declared dicta by DiFrancesco.


author: DANAHY, Judge.

text:
    GROSS BUILDERS, INC., etc., et al., Appellants, v. Dorman A. POWELL, individually and as representative of the Estate of Franz D. Powell, deceased, Appellee.
    No. 82-1903.
    District Court of Appeal of Florida, Second District.
    Nov. 9, 1983.
    Rehearing Denied Dec. 14, 1983.
    Chris W. Altenbernd of Fowler, White, Gillen, Boggs, Villareal & Banker, Tampa, for appellants.
    Douglas A. Mulligan of Williams & Milton, St. Petersburg, for appellee.
   DANAHY, Judge.

We address two questions in this case, both of which are questions of first impression in Florida. The case reaches us as an appeal by the defendants in a wrongful death action from final judgment for the plaintiff entered upon a jury verdict.

Franz Powell, a three-year old boy, drowned on February 25, 1980, in a swimming pool at the apartment complex where he and his family resided. Franz’s father brought this action, as personal representative of Franz’s estate, against the owners and managers of the apartment complex. A jury returned a verdict for the plaintiff in the amount of $300,000, representing $150,000 to each of Franz’s parents.

The first issue concerns the use at trial of the apartment owner’s denials of the plaintiff’s requests for admission. The requests for admission and the denials were as follows:

3. Please admit that the swimming pool was adjacent to the playground area, on February 25, 1980.
Denied
5. Please admit that you were aware that minor children played in and around the pool area on/and before February 25, 1980.
Denied
6. Please admit that you were aware these minor children swam in the pool on/and before February 25, 1980.
Denied.
8. Please admit that on an occasion prior to February 25, 1980, another child had drowned in one of your pools.
Denied.

The plaintiff called as his first witness Mr. John Connally, the resident manager of the apartment complex. Mr. Connally’s testimony indicated that he was aware that children played in the pool area and swam in the pbol prior to February 25,1980. Following his testimony, the plaintiff was allowed to read to the jury the four requests for admission quoted above and the apartment owner’s denials of those requests. All of the defendants objected and moved for a mistrial. The objections were overruled and the mistrial denied. We hold that the trial judge erred in this respect and reverse for a new trial.

Florida Rule of Civil Procedure 1.450(a) reads in part as follows:

A party may call an adverse party or an officer, director, or managing agent of a public or private corporation or of a partnership or association which is an adverse party and interrogate him by leading questions and contradict and impeach him in all respects as if he had been called by the adverse party ....

The plaintiff defends the reading of the requests for admission and the denials as a legitimate effort to impeach Mr. Connally. The defendants respond by pointing out that Mr. Connally was called by the plaintiff as his own witness and, usually, one may not impeach his own witness. § 90.-608(2), Fla.Stat. (1981). We are satisfied, however, that Mr. Connally fell in the category of “managing agent” of the defendant owner of the apartment complex within the meaning of rule 1.450(a) and thus was subject to impeachment by the plaintiff. Our supreme court has twice discussed the meaning of the expression “managing agent” in this context. Seaboard Air Line Railroad Co. v. Ford, 92 So.2d 160 (Fla.1956); Tucker Brothers, Inc. v. Menard, 90 So.2d 908 (Fla.1956). Our holding that Mr. Connally was a managing agent of the defendant apartment owner is supported by those decisions. Further, we note that the term managing agent as used in the former corresponding federal rule received a broad, practical construction. 10 Moore’s Federal Practice (2d Ed.) § 611.03 at VI-166.

We have no difficulty, therefore, in finding that Mr. Connally was subject to impeachment by the plaintiff. However, the means utilized for this purpose were inappropriate. Section 90.608(2) provides that in the case of an adverse witness, a party calling that witness may contradict the witness by other evidence or may prove that the witness has made an inconsistent statement at another time. As the defendants point out, the denials to the requests for admission were made by Mr. Connally’s employer, not Mr. Connally. We know of no authority, nor has any been cited to us, which supports the proposition that a witness may be impeached by the contradictory statements of someone else which cannot, under any theory, be attributed to the witness.

Accordingly, we reverse and remand for a new trial. For purposes of that new trial, we address the second issue raised by the appellants.

The trial judge instructed the jury that under Florida’s Wrongful Death Act, the parents of a deceased minor child are entitled to recover mental pain and suffering from the date of injury. § 768.21(4), Fla.Stat. (1981). The judge then instructed the jury that “in determining the duration of such mental pain and suffering, you shall consider the life expectancies of the surviving parents.” The appellants argue that the parents’ recovery for mental pain and suffering must be measured by the remaining minority years of the child had the child lived, not by the life expectancies of the parents.

No party to this appeal has cited to us any Florida case addressing this question and our own research has revealed none. However, we find that the United States Court of Appeals for the Fifth Circuit has answered the question, in a case arising from Florida. Georgia Southern & Florida Railway v. Perry, 326 F.2d 921 (5th Cir. 1964). The Florida statute in 1964 provided that parents of a deceased minor child could recover in a wrongful death action “such sum for the mental pain and suffering of the parent (or both parents) if they survive, as the jury may assess.” § 768.03(1), Fla. Stat. (1963). The present statute provides that damages in a wrongful death action may be awarded to each parent of a deceased minor child “for mental pain and suffering from the date of injury.” § 768.-21(4), Fla.Stat. (1981). Thus there is no significant difference, for present purposes, between the 1964 version of the statutory law and the current statutory provision.

In the Perry case, the trial judge allowed the parents of a deceased minor child to place before the jury the mortality tables which reflected the parents’ estimated life expectancies. The defendant argued on appeal that this was erroneous, but the federal court did not agree. The court said: “It appears that from the evidence the jury might have found that the mental pain and suffering would continue throughout the lifetime of the parents. As evidence of the probable lifetime length, the mortality tables showing life expectancy were admissible.” We agree with the philosophy and reasoning of the federal court in that case.

Therefore, we hold that in a wrongful death action, it is proper to instruct the jury that in determining the amount of an award to parents of a deceased minor child for mental pain and suffering, the jury may consider the joint life expectancies of the child and the parents.

REVERSED and REMANDED for a new trial.

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


text:
    INVESTORS ASSOCIATES, INC., Appellant, v. Jane MOSS, Appellee.
    No. 82-1440.
    District Court of Appeal of Florida, Third District.
    Nov. 15, 1983.
    Rehearing Denied Dec. 22, 1983.

      Samuel I. Burstyn and Michel Ociacovski, Miami, for appellant.
    Shalle Stephen Fine, Miami, for appellee.
    Before HUBBART, DANIEL S. PEARSON and FERGUSON, JJ.
   FERGUSON, Judge.

This appeal, taken from a final judgment which awards money damages to ap-pellee, challenges that part of the judgment which finds jurisdiction over the parties and subject matter.

Appellee, a securities investor, commenced this action in the circuit court alleging that appellant, a stock brokerage firm, in violation of her instructions, traded her account on margin in speculative securities, occasioning substantial losses. The jurisdictional facts, as alleged in an unsworn amendment to the complaint, are:

The defendant actively solicited the business of the Plaitniff [sic], a resident of the State of Florida, calling her for the specific purpose of attempting to get her to place money with them and to purchase securities through them using their long distance telephone to initiate and promote the business relationship between the Defendant and the Plaintiff resident in Florida.

The evidence, taken from an affidavit of the appellant and deposition of the appellee, shows without contradiction that appellant has offices in, and does business in the State of New Jersey; the parties entered the subject agreement while appellee was a New Jersey resident; appellant has no agents or offices in Florida nor have any of its agents ever solicited business, or even been in the State of Florida; appellant’s contact with appellee after she moved to Florida has been limited to answering telephonic inquiries, initiated by appellee, as to the status of her account.

It is unnecessary to decide whether the complaint alleges a sufficient factual basis for the acquisition of jurisdiction. The sufficiency of proof presents a much easier and equally dispositive issue. The affidavit filed by defendant in support of its motion to dismiss for lack of jurisdiction over the person was sufficient to shift to the plaintiff the burden of going forward with evidence on the question of jurisdiction. The proof presented by plaintiff was insufficient or, more accurately, nonexistent. A plaintiff seeking to subject a non-resident defendant to the jurisdiction of the court via the long-arm statute does not satisfy her obligation by simply alleging facts which show a possibility of jurisdiction; in the face of a meritorious challenge, the plaintiff has to prove jurisdiction over the person by affidavits, testimony or documents. Hyco Manufacturing Co. v. Botex International Corp., 355 So.2d 471, 474 (Fla. 3d DCA 1978); see also Nichols v. Seabreeze Properties, Inc., 302 So.2d 139 (Fla. 3d DCA 1974).

Since the plaintiff failed in her burden to prove jurisdiction over the defendant, the defendant’s motion to dismiss should have been granted.

Reversed and remanded with directions to dismiss.

      . The court entered an order denying defendant’s motion to dismiss for lack of jurisdiction several months prior to the final judgment. That non-final order finding jurisdiction over the person was appealable pursuant to Florida Rule of Appellate Procedure 9.130(a)(3)(C)(i), but failure to take an immediate appeal from that order does not bar review of the question on plenary appeal. Fla.R.App.P. 9.130(g); Saul v. Basse, 399 So.2d 130 (Fla. 2d DCA 1981). Neither does the fact that judgment of liability was entered by default rather than after a trial on the merits affect the appealability of the non-final order. No further evidence was presented on the jurisdictional issue after the hearing on the motion to dismiss.
      In the same motion to dismiss defendant challenged the court’s jurisdiction over the subject matter on the basis that plaintiff’s claim, which alleged violations of the Federal Securities Exchange Act of 1934, is exclusively within the jurisdiction of the federal courts. We need not reach this issue since we decide this case solely on the basis of lack of personal jurisdiction.


text:
    Marvin A.H. FREIMAN, Appellant, v. Jay HIRSCH, Appellee.
    No. 83-837.
    District Court of Appeal of Florida, Third District.
    Nov. 15, 1983.
    Myers, Kenin, Levinson, Ruffner, Frank & Richards and Terry V. Percy, Miami, for appellant.
    No appearance for appellee.
    Before SCHWARTZ, C.J., and BARK-DULL and JORGENSON, JJ.
   PER CURIAM.

The complaint does not allege a basis for subjecting the defendant-appellant Marvin A.H. Freiman, a New York attorney, to service under the Florida long-arm statute, and his unrebutted affidavit affirmatively shows that no such basis exists. Investors Associates, Inc. v. Moss, 441 So.2d 1144 (Fla. 3d DCA 1983); Hyco Manufacturing Co. v. Rotex International Corp., 355 So.2d 471 (Fla. 3d DCA 1978); Nichols v. Seabreeze Properties, Inc., 302 So.2d 139 (Fla. 3d DCA 1974). The order denying his motion to dismiss for lack of jurisdiction over his person is therefore reversed.