author: HERSEY, Judge.

text:
    Robert F. BAILEY, Sr., Petitioner, v. Vearl J. TREASURE, Individually and as a General Partner of Tomlock Groves, Ltd., a Florida limited partnership, and Ronald C. Cameron, as Personal Representative of the Estate of Byron R. Cameron, deceased, Respondents.
    No. 84-659.
    District Court of Appeal of Florida, Fourth District.
    Jan. 9, 1985.
    Rehearing Denied Feb. 14, 1985.

      Robert F. Bailey, Sr., pro se petitioner.
    Bruno Di Giulian of Di Giulian & DiChiara, Fort Lauderdale, for Yearl J. Treasure.
    Steven R. Berger of Steven R. Berger, P.A., Miami, for Receiver, Philip A. Disque Pendente Lite.
   HERSEY, Judge.

The petition for writ of certiorari seeks to overturn two orders in receivership proceedings authorizing the sale of real property for a set amount per acre. We take jurisdiction, grant the petition and quash the orders.

Tomlock Groves, Ltd., a Florida limited partnership, is engaged in the business of operating and selling small citrus groves. Petitioner Bailey is a general partner, respondent Treasure is both a general and limited partner, and respondent Ronald Cameron is the personal representative of the estate of Byron Cameron, a deceased general and limited partner.

In 1982 respondents brought an action against petitioner to enjoin his continued handling of the partnership’s business. A receiver was appointed to handle the day-to-day affairs of the partnership.

In December, 1983, the trial court authorized the receiver to sell the six orange groves owned by the partnership for $2,500 per acre. In January, 1984, the orange groves were appraised at $428,000, which is more than $3,000 per acre. In February, 1984, the receiver moved the lower court to authorize a sale of the groves to Norman Blood, II, for $2,300 per acre, pursuant to a proposed sale contract, and noticed the motion for hearing on February 10. The hearing proceeded despite the prior withdrawal of the offer. At the request of the receiver’s attorney, the court ruled that (1) the receiver would have exclusive authority to negotiate the sale of the partnership’s property; (2) the receiver would be authorized to accept $2,300 per acre for the groves, so long as the offer contained substantially the same terms and conditions as the Blood offer; and (3) the receiver would have the discretion to agree that the partnership would indemnify the purchaser from any claim for commissions on the sale. The lower court’s order was entered on February 27, 1984. An order of clarification of the February 27th order was entered on March 9, 1984, stating that the $2,300 sale price was a gross price from which closing costs, fees or commissions would be deducted.

Bailey petitioned this court for a writ of certiorari seeking a determination that the trial court departed from the essential requirements of law in entering the orders of February 27 and March 9, 1984.

Petitioner takes the position that the trial court should not have permitted the receiver to raise matters at the February 10 hearing which were not contained in the receiver’s written motion. That motion sought only the court’s approval of the sale of the groves to Norman Blood, which offer had been withdrawn prior to the hearing. Petitioner contends that he had insufficient notice of the matters argued at the hearing and on which the court ruled, because those matters were raised for the first time at the hearing. His position is that he was not afforded an opportunity to properly prepare for the hearing and was thus denied due process of law.

It should first be noted that the receiver alleges in his response to the order to show cause that petitioner may not raise lack of sufficient notice before this court where he failed to object on that ground at the hearing. Petitioner did, however, move for rehearing on this ground just a few days after the hearing, which motion was denied. This was sufficient to preserve the point for appeal, as the trial judge was provided with an early opportunity to correct the error, which is the purpose of requiring a contemporaneous objection. Castor v. State, 365 So.2d 701 (Fla.1978).

In Ingaglio v. Ennis, 443 So.2d 459, 460 (Fla. 4th DCA 1984), this court held that “the trial court erred in considering an ore tenus motion when only written motions had been filed and noticed for hearing,” and that written notice of matters to be heard should be given “[ajbsent extraordinary circumstances.” Id. at 461. In In-gaglio, appellees filed written motions for a default for failure of appellant to file an answer and to compel answers to interrogatories. Prior to the hearing, appellant served his answer and affirmative defenses and answers to interrogatories on appel-lees. At the hearing, appellees made an oral motion to strike appellant’s answer and affirmative defenses. This court found that the trial court had improperly considered the oral motion where “appellant had absolutely no notice of any ore tenus motion or hearing thereon and he had reason to believe the motion to compel has [sic] become moot by his serving, however late, his answers to same.” Id.

A similar situation is presented by the instant case. The receiver’s written motion asked only for approval by the court of the Blood offer. When that offer was withdrawn, another written motion should have been filed apprising petitioner of the new matters the receiver intended to bring before the court. Instead, the receiver improperly raised the matters orally at the hearing. There is no evidence of “extraordinary circumstances” which would excuse the receiver from filing a written motion. He had notice of the withdrawal of the Blood offer earlier in the week, and thus had ample time to provide petitioner with written notice of the matters to be heard.

Petitioner also correctly points out that “[a] sale by a receiver should be carefully watched by the court and not approved where the sale is for less than the property should reasonably be expected to sell, and then only where there is a showing of necessity.” Fugazy Travel Bureau, Inc. v. State, 188 So.2d 842, 844 (Fla. 4th DCA 1966); Robineau v. De Long, 92 Fla. 418, 109 So. 636 (1926). The trial court entered an order permitting the receiver to sell the partnership’s orange groves for $2,300 per acre. An appendix filed with the petition reflects that in December, 1983, the parties agreed that the property was worth $2,500 per acre, and it was appraised at approximately $3,000 per acre in January, 1984. This is the only evidence as to the price at which “the property should reasonably be expected to sell.” Unaccepted offers to purchase, such as the Blood offer, may not be considered as evidence of value. Kalb v. Int’l Resorts, Inc., 396 So.2d 199 (Fla. 2d DCA 1981). Thus, the trial court erred in approving a sale of the property for $2,300 per acre, as there was no evidence of the reasonableness of that price.

The orders complained of constitute departures from the essential requirements of law that may not be remedied on plenary appeal. Consequently, we grant certiorari, quash the orders of February 27 and March 9, 1984, and remand this cause for further proceedings.

CERTIORARI GRANTED; ORDERS QUASHED; REMANDED.

DELL and BARKETT, JJ., concur.


source: Caselaw Access Project

author: ERVIN, Chief Judge. BOOTH, Judge,

license: Public Domain

text:
    Roger Allan RIVERA, Appellant, v. STATE of Florida, Appellee.
    No. AP-294.
    District Court of Appeal of Florida, First District.
    Jan. 11, 1985.

      Mark King Leban, Miami, for appellant.
    Jim Smith, Atty. Gen. and Richard A. Patterson, Asst. Atty. Gen., for appellee.
   ERVIN, Chief Judge.

Appellant, Roger Allan Rivera, appeals his conviction for aggravated assault with a deadly weapon, not a firearm, contending that the trial court committed reversible error in (1) denying his motion both to suppress pre-trial identifications and prohibit in-court identifications by the victim and eyewitness, (2) limiting his cross-examination of the victim and of the investigating officer to the extent that he was obliged to call those witnesses as his own, thereby precluding his impeachment of their testimony, and (3) refusing to instruct the jury as to the crime of attempted aggravated assault. We find no error as to point one and affirm as to it. We agree, however, that reversible error occurred as to points two and three, and therefore reverse and remand the case for new trial.

The record discloses that the victim and her mother were traveling west on Gaines Street in Tallahassee on April 29, 1982, when a car driven by a young man, with a Doberman Pinscher inside it, pulled up behind them with its horn blaring and the driver shouting obscenities and profanities. At the next intersection the car, following that driven by the victim’s mother, proceeded next to the passenger’s side of the automobile, and the young man, while continuing his verbal abuse, pointed what appeared to be a gun at the victim. During the incident, which lasted approximately five minutes, both women had a clear view of their assailant, the car, the dog and the firearm. When the man drove away, the women followed and were able to record his license number which they promptly reported to the police.

Officer Garber of the Tallahassee Police Department, who was assigned to investigate the event, learned the automobile was registered to Rivera, 'a resident of Miami attending Florida State University. On May 4, 1982, after having made initial contact with Rivera, Officer Garber interviewed the victim and her mother and showed the women, separately, a photographic line-up of six individuals, including a photograph of Rivera taken more than a year earlier. The victim was unable to identify the driver from the line-up because she had remembered him as being more clean-cut than any of those pictured. The victim’s mother, however, picked two possible suspects from the display, one of whom was Rivera, but expressed the same reservations regarding the quality of the picture presented. Afterward, when Officer Gar-ber met with both women, she pointed out Rivera’s photograph and told the women that the vehicle bearing the license tag they had recorded was registered to Rivera. After that revelation, the victim’s mother seemed more certain that Rivera was in fact the driver.

The defense, contending the photographic lineup was so impermissibly suggestive as to create a substantial likelihood of irreparable misidentification at trial, moved to suppress any evidence of the pretrial identifications and to prohibit in-court identifications. A pretrial hearing was held on the motion at which time the victim and her mother testified at length regarding the incident; their opportunity to view the driver, his car and dog; their degree of attention; the initial descriptions they had given the police; their unsuccessful attempts at positively identifying Rivera from the photograph, and their certainty that they could nevertheless identify the driver if they saw him in person. On that evidence, the motion to suppress was denied and the case proceeded to trial.

At trial, during direct examination of the victim, the state limited its inquiry to the events that occurred on April 29, 1982, relating to the victim’s descriptions of the driver, car and dog, statements given by her to the police and, finally, whether she was subsequently contacted by other police officers after having initially reported the incident, to which questions she answered affirmatively. The state did not explicitly inquire into the circumstances surrounding the photographic lineup. When, on cross-examination, the defense sought to inquire into the contacts and conversations between the victim and Officer Garber occurring after the date of the incident, the state objected on the ground that such questioning was outside the scope of direct examination, which objection was sustained. The state later called Officer Garber who was questioned regarding her investigation of the case over a period of several weeks, as well as her contacts with Rivera. Again, the photographic lineup was not mentioned. On cross-examination, when the defense attempted to delve into the officer’s training in general and into her training concerning photographic lineups in particular, the state raised the same objection, which was again sustained. As a result, Rivera was forced to call Officer Garber as his own witness in order to bring out inconsistencies pertaining to the pretrial identifications and, because the officer was then a defense witness, he was precluded from impeaching her testimony through introduction of expert testimony pertaining to the proper method of photographic identification.

First, we find no error in the denial of Rivera’s motion to suppress. The United States Supreme Court has recognized that the chance of mistaken identification in court increases in those instances in which pre-trial identifications, either in person or through the use of photographs, are made under unnecessarily suggestive circumstances. See United States v. Wade, 388 U.S. 218, 87 S.Ct. 1926, 18 L.Ed.2d 1149 (1967); Gilbert v. California, 388 U.S. 263, 87 S.Ct. 1951, 18 L.Ed.2d 1178 (1967); Stovall v. Denno, 388 U.S. 293, 87 S.Ct. 1967, 18 L.Ed.2d 1199 (1967); Simmons v. United States, 390 U.S. 377, 88 S.Ct. 967, 19 L.Ed.2d 1247 (1968); Neil v. Biggers, 409 U.S. 188, 93 S.Ct. 375, 34 L.Ed.2d 401 (1972). In such situations, the issue is whether the confrontation was “so unnecessarily suggestive and conducive to irreparable mistaken identification that [the defendant] was denied due process of law.” Stovall, 388 U.S. at 302, 87 S.Ct. at 1972. In making this determination, the defendant’s claim must be evaluated “in light of the totality of [the] surrounding circumstances”, Simmons, 390 U.S. at 383, 88 S.Ct. at 970, with consideration given to the following factors:

[T]he opportunity of the witness to view the criminal at the time of the crime, the witness’ degree of attention, the accuracy of the witness’ prior description of the criminal, the level of certainty demonstrated by the witness at the confrontation, and the length of time between the crime and the confrontation.

Neil, 409 U.S. at 199, 93 S.Ct. at 382. Only if it is shown that “the photographic identification procedure was so impermissibly suggestive as to give rise to a very substantial likelihood of irreparable misidenti-fication” will a conviction, based on an “eyewitness identification at trial following a pretrial identification by photograph”, be set aside. Simmons, 390 U.S. at 384, 88 S.Ct. at 971.

Rivera contends that our prior opinion in Smith v. State, 362 So.2d 417 (Fla. 1st DCA 1978), which reversed a conviction based upon an impermissibly suggestive photographic line-up identification, is controlling here. We do not, however, find here the same compelling factual circumstances that were present in Smith, where, in addition to a suggestive pre-trial identification, no live identification of the defendant occurred during trial, and therefore do not consider it controlling. The facts in this case, instead, are more akin to those in Salter v. State, 382 So.2d 892 (Fla. 4th DCA 1980), wherein it was held that appellant had failed to demonstrate reversible error “since identification testimony was based upon observation independent of the line-up.” Id. at 893. Accordingly, we affirm the denial of the motion to suppress.

As in Salter, however, we find that reversible error occurred in that the trial court unduly restricted the defense’s cross-examination of the victim and Officer Gar-ber. A full and fair cross-examination of a witness in a criminal trial is a right belonging to a defendant, not merely a privilege. Coco v. State, 62 So.2d 892 (Fla.1953). As the Florida Supreme Court has explained:

The right of a criminal defendant to cross-examine adverse witnesses is derived from the Sixth Amendment and due process right to confront one’s accusers. One accused of crime therefore had an absolute right to full and fair cross-ex-amination_ A limitation on cross-examination that prevents the defendant from achieving the purposes for which it exists may be harmful error.

Steinhorst v. State, 412 So.2d 332, 337 (Fla.1982). Although Florida’s Evidence Code provides that the trial court “shall exercise reasonable control over the mode and order of the interrogation of witnesses,” Section 90.612, Florida Statutes (1979), this court has recognized that such discretion “is constrained by a defendant’s right to confront adverse witnesses.” Smith v. State, 404 So.2d 167, 169 (Fla. 1st DCA 1981). Accordingly, the “[c]urtailment of a defendant’s right to cross-examination of State witnesses is a power to be used sparingly.” Salter, 382 So.2d at 893. The vital importance of cross-examination to a criminal defendant is further heightened “when the cross-examination is of the key prosecution witness ... [and] ... positive identification is made under circumstances of questionable reliability.” Porter v. State, 386 So.2d 1209, 1213 (Fla. 3d DCA 1980) (e.s.). Recognizing the potential for mis-identification where the pre-trial use of photographic identification is said to be unnecessarily suggestive, the Supreme Court has suggested:

The danger that use of the [photographic line-up] technique may result in convictions based on misidentification may be substantially lessened by a course of cross-examination at trial which exposes to the jury the method’s potential for error.

Simmons, 390 U.S. at 384, 88 S.Ct. at 971 (e.s.).

Here the state questioned the victim as to her identification of the driver and whether she had been contacted by police officers after reporting the incident. During the state’s direct examination, Officer Garber was questioned as to her investigation of the case from the time of the initial complaint up to Rivera’s arrest. When the defense sought to follow up on those subjects, it was precluded from doing so on the ground that the questions were outside the scope of direct examination. What the state sought to do here was quite similar to that done by it in Haager v. State, 83 Fla. 41, 90 So. 812 (1922), where the state restricted its direct examination of a witness to only a portion of the facts relating to a second degree murder charge against appellant, and then objected successfully to facts not specifically asked on cross-examination. On appeal the court declared such denial to be an impermissible limitation upon the defendant’s right to cross-examination, stating:

[W]e think it was proper for counsel on cross-examination to interrogate the witness about everything that was said or done either by Haager or Hall from the time the difficulty began until Haager left the scene of the difficulty. The state’s attorney could not limit investigation into the entire transaction by asking the witness about only a part of the difficulty, and the defendant had a right to inquire if the defendant said anything else.

83 Fla. at 49, 90 So. at 815.

Although the general rule is that cross-examination must either relate to matters brought out on direct examination or to the credibility of the witness, Steinhorst, 412 So.2d at 337, it is equally true that cross-examination need not be limited or “ ‘confined to the identical details testified in chief, but extends to its entire subject matter, and to all matters that may modify, supplement, contradict, rebut or make clearer the facts testified to in chief by the witness on cross-examination.’ ” Coco v. State, 62 So.2d at 895. The above rule is particularly applicable to the case before us in which it is alleged that unnecessarily suggestive photographic line-up procedures tainted the in-court identification of the defendant. Simmons, 390 U.S. at 384, 88 S.Ct. at 971; Salter, 382 So.2d at 893. By allowing into evidence the victim’s and her mother’s in-eourt identifications of defendant as the person who committed the offense, all the facts bearing upon the witnesses’ identification were relevant to test the credibility of such testimony.

We therefore conclude that it was reversible error for the trial court to so limit the defense’s cross-examination of the victim and of Officer Garber.

Rivera’s final point is that the court erred in refusing to instruct the jury as to the crime of attempted aggravated assault. We agree. Rivera was charged with aggravated assault with a deadly weapon, i.e., “a pistol firearm.” There is no room to doubt that attempted aggravated assault is a crime in Florida and that refusal to instruct as to the attempt may amount to reversible error. Henderson v. State, 370 So.2d 435 (Fla. 1st DCA 1979). The revised version of Florida Rule of Criminal Procedure 3.510(a), which is applicable to this case, provides that the jury may convict a defendant of attempting to commit the offense with which he is charged if “such attempt is an offense and is supported by the evidence.” In such a case, the court should instruct the jury as to the attempt unless “the only evidence proves a completed offense.” Id. (e.s.). Here, the only evidence pertaining to the use of a firearm was the testimony of the victim and her mother to the effect that Rivera had pointed a gun at them. No gun was ever produced or introduced, and the defense presented evidence that Rivera, a minor, had never owned or possessed a pistol. The jury’s verdict, finding Rivera guilty of aggravated assault with a deadly weapon, not a firearm, shows it did not believe he was guilty of committing the completed offense of aggravated assault with a firearm. Refusal to instruct the jury as to attempted aggravated assault where the evidence did not point to only a completed offense deprived Rivera of the opportunity for a “jury pardon”, a theory recognized as one of the compelling reasons for instructing as to attempts, Henderson, 370 So.2d at 437, and was therefore erroneous. See also State v. Bruns, 429 So.2d 307, 309-10 (Fla.1983).

For the above reasons, we AFFIRM denial of the motion to suppress but otherwise REVERSE Rivera’s conviction and REMAND for purposes of a new trial.

ZEHMER, J., concurs.

BOOTH, J., dissents.

BOOTH, Judge,

dissenting:

I respectfully dissent and would affirm the judgment of conviction below. The victim of the assault and her mother had defendant and his vehicle in their close and plain view for fully five minutes. Immediately after the assault, the victim and her mother were able to give the police the license tag number and to describe defendant, his vehicle, and the dog in the car, a Doberman pinscher dog, which defendant owns. The possibility of the specific identifying factors occurring by coincidence and the identification being in any regard unreliable is so remote as to be without legal effect. On the basis of this excellent victim and witness identification, defendant was taken into-custody. Defendant’s purported alibi in fact was no alibi at all since it allowed him to be on Gaines Street at the time of the offense.

Concerning the inquiry into the circumstances surrounding the pre-trial photographic lineup, the error, if any, is plainly harmless. Defense counsel sought to introduce evidence concerning the photographic lineup and to establish that the victim was unable to pick defendant’s picture, a driver’s license photograph from some years prior to the incident. The trial court ruled that the matter could only be brought up by defendant calling the witnesses and proceeding by direct examination since the matter was outside the scope of the direct. Examination of the record shows that defense counsel did not object to the procedure required by the court. The evidence sought to be introduced was ultimately introduced, and the inability of one of the witnesses to pick out defendant’s photograph was made known to the jury.

The issue on appeal here is not the failure of the trial court to permit evidence pertaining to pretrial identification to be admitted. All evidence on that point was admitted. The issue is the procedure whereby the trial court required defendant to elicit the evidence on direct, rather than on cross-examination. In view of the overwhelming evidence of identification, totally without reference to the photographic lineup, and counsel’s failure to object to the procedure when announced by the court, no sufficient error is shown or preserved which requires remand for a new trial.

As to the alleged sentencing error, the trial court did not err in refusing to charge on attempted aggravated assault since there was no evidence to support such an attempt. In Gillespie v. State, 440 So.2d 8 (Fla. 1st DCA 1983), the court held: “Florida Rule of Criminal Procedure 3.510 was amended in 1981 to provide that a judge shall not instruct the jury on an attempt to commit an offense if there is no evidence to support such an attempt and the only evidence proves a completed offense.” The majority’s reliance on Henderson v. State, 370 So.2d 435 (Fla. 1st DCA 1979), and State v. Bruns, 429 So.2d 307 (Fla.1983), both cases decided under the law prior to the 1981 rule change, is misplaced. Since the offense in this case occurred on April 29, 1982, after the amendment to Rule 3.510(a), Florida Rules of Criminal Procedure, effective on October 1, 1981, defendant was not entitled to a jury instruction on attempted aggravated assault. Burney v. State, 402 So.2d 38 (Fla. 2d DCA 1981), expressly approved, State v. Strasser, 445 So.2d 322 (Fla.1984).

      . The state's failure to do so may have been based in part upon the defense’s objection to any testimony of pre-trial identification being admitted, particularly in regard "to any and all questions that are asked about that particular photo identification process done on 5/4/82.” The state then offered to stipulate to not mentioning the two photo identification procedures if the defense was willing to do so. However no such agreement by the defense appears on the record.

      . The state’s objection was not well-founded. The state appears to have opened the door to that line of questioning by asking the victim during its direct examination whether she had any further contacts with other police officers.

      .For example, Officer Garber had testified on direct examination as a defense witness that her disclosure of Rivera’s photograph to the victim and her mother was, under the circumstances, "standard police procedure.” When the defense attempted to call Garber’s supervisor to the stand for the purpose of testifying to the contrary, such testimony was not admitted on the ground that the defense was attempting to impeach its own witness. If such evidence had been admitted it may have reflected adversely on the credibility of Garber’s statement. Although the supervisor testified on proffer that all officers did things differently, he admitted that he had never pointed out a suspect’s photograph to a victim.

      . In so holding, we have not overlooked the recent opinion of the Third District Court of Appeal in State v. Guerra, 455 So.2d 1046 (Fla. 3d DCA 1984). We find the facts in that case sufficiently distinguishable from the present. Although unnecessarily suggestive procedures occurred in both cases, the appellate court in Guerra was confronted with the question of whether there was sufficient evidence to sup- • port the trial court’s finding that the suggestion gave rise to a substantial likelihood of irreparable misidentification; here we are faced with the contrary finding, and are asked instead to hold that the court’s determination lacks support in the record. This, for the reason previously stated, we cannot do. We observe also that the victim, robbed allegedly by Guerra, continuously during her testimony, confused the details of five robberies which had occurred at the convenience store where she was employed, and was uncertain whether she could make an in-court identification of appellant as the robber.

      . It should be observed that attempted aggravated assault is listed in the schedule of lesser included offenses as a category two-lesser offense, an offense which under Brown v. State, 206 So.2d 377 (Fla.1968), was an offense which may or may not be given depending on the accusatory pleading and the evidence. See Florida Standard Jury Instructions in Criminal Cases, pp. viii and 259.


author: WENTWORTH, Judge.

text:
    Joan C. PEREZ, Appellant, v. Kenneth I. PEREZ, Appellee.
    No. AX-113.
    District Court of Appeal of Florida, First District.
    Jan. 11, 1985.
    R.J. Inman, Jr., Inman & Landau, Jacksonville, for appellant.
    No appearance for appellee.
   WENTWORTH, Judge.

Appellant seeks review of the denial of a motion to dismiss appellee’s request for modification of a child custody order. Because we find that the court should not have assumed jurisdiction pursuant to ap-pellee’s motion for modification, we grant review by certiorari and quash the order appealed.

Upon the dissolution of the parties’ marriage in 1976 appellant, by stipulation, retained custody of the parties’ eight year old son and four month old daughter. In 1977 custody of the son was transferred to ap-pellee by a consent order of modification. In 1983 appellee filed a motion for modification seeking custody of the parties’ daughter, alleging that he had been denied visitation and that it is in the best interests and welfare of the child that he be made the primary, residential parent. Appellant moved to dismiss appellee’s motion for modification, arguing that appellee had failed to plead necessary information regarding the child’s place of residence. Appellant also filed an affidavit asserting that for the past four years the child has resided with her in Pennsylvania.

As adopted in Florida the Uniform Child Custody Jurisdiction Act governs the jurisdictional aspects of interstate custody disputes and establishes generally that the “home state” of the child should be the jurisdiction to hear and determine custody matters. See Hegler v. Hegler, 383 So.2d 1134 (Fla. 5th DCA 1980); § 61.1308(l)(a), Florida Statutes. In the present case the parties’ factual allegations indicate that for the past four years Florida has not been the child’s “home .state,” as defined by § 61.1306(5), Florida Statutes. The Florida court’s exercise of jurisdiction in the present case is therefore dependent upon an allegation of exceptional circumstances as delineated in § 61.1308, Florida Statutes. While the court suggested that appellee’s motion might be read as alleging “emotional abuse,” this circumstance alone would not warrant the Florida court’s exercise of jurisdiction; rather, it must also appear that the child is either physically present in the state, see § 61.1308(l)(c), or that there is a “significant connection” with Florida and the availability of substantial evidence within the state, see § 61.1308(l)(b), or that either no other state has jurisdiction or another state has deferred jurisdiction to the Florida court. See § 61.1308(l)(d); see generally, Hegler, supra. Since none of these prerequisites were satisfied by the allegations of appellee’s motion, and were negated by appellant’s uncontroverted affidavit, the court erred in denying appellant’s motion to dismiss and assuming jurisdiction pursuant to appellee’s motion for modification.

Certiorari is granted, the order under review is quashed, and the cause remanded.

SHIVERS and NIMMONS, JJ., concur.

      . While review is sought by appeal the order in question is non-final and is not encompassed within the limited exceptions in Fla.R.App.P. 9.130 for which interlocutory review by appeal is authorized. However, since the issue presented is one which relates to the court's jurisdiction the order is subject to immediate review by certiorari. See Sedden v. Harpster, 438 So.2d 165 (Fla. 5th DCA 1983); also see Gadsden County Times v. Horne, 382 So.2d 347 (Fla. 1st DCA 1980). Pursuant to Fla.R.App.P. 9.040(c) we therefore grant review by certiorari.

      . Section 61.1306(5), Florida Statutes, defines "home state” as:
      ... the state in which the child, immediately preceding the time involved, lived with his parents, a parent, or a person acting as a parent for at least six consecutive months....

      . In the order under review the court also noted that “there was, and is, pending, a Motion to Change Custody, upon which adjudication was deferred in 1979.” The record before us contains no other reference to such a motion, and neither the court nor the parties treated appellant’s present motion for modification as an attempted amendment of the prior motion. The asserted pendency of such prior motion, the propriety of which we do not address, thus does not impact appellant’s present motion or the order now under review.


author: WENTWORTH, Judge. NIMMONS, Judge,

text:
    George W. BURCH, Appellant, v. STATE of Florida, Appellee.
    No. AX-132.
    District Court of Appeal of Florida, First District.
    Jan. 11, 1985.
    Michael E. Allen, Public Defender, Glenna Joyce Reeves, Asst. Public Defender, for appellant.
    Jim Smith, Atty. Gen., Gary L. Printy, Asst. Atty. Gen., for appellee.
   WENTWORTH, Judge.

Appellant challenges the trial court’s decision to depart from the sentencing guidelines and impose two concurrent five year prison terms instead of the recommended sentence of community control or twelve to thirty months’ incarceration. He asserts that the trial court’s stated reasons for departure are not clear and convincing as required by Fla.R.Crim.P. 3.701(d)(ll). We agree that three of the four reasons given by the trial court do not support the departure and we therefore vacate the sentence and remand for reconsideration.

The trial court gave four reasons for declining to impose the recommended sentence:

(1) No pretense of moral or legal justification for the offense;
(2) In need of rehabilitative treatment that can best be provided by commitment to a penal facility;
(3) Prior history of unsuccessful alternatives to commitment in a penal facility; i.e., previous revocation of probation;
(4) On parole at the time of the present offense.

We find that the trial court’s consideration of appellant’s prior history of failed alternative treatment was proper since it is a factor which is not already built into the guidelines’ calculation. See Weems v. State, 451 So.2d 1027 (Fla. 2d DCA 1984). We find the other stated reasons to be inadequate, the first being ambiguous and lacking in clarity for failure to relate to any identified fact in the context of this case. Alford v. State, 460 So.2d 1000 (Fla. 1st DCA 1984).

The trial court’s stated reason as to need of rehabilitative treatment that can be best provided by commitment to a penal facility is likewise unclear. See Brooks v. State, 456 So.2d 1305 (Fla. 1st DCA 1984), where the deviation decision similarly did not involve a non-prison guidelines sanction. Appellant’s recommended sentence provided for up to thirty months’ incarceration, therefore the trial court’s concern that appellant receive treatment could have been assuaged without resort to deviation from the recommended sentence.

The fact that appellant was on parole at the time of his offense was not a proper reason for departing from the guidelines since appellant received ten points on his guidelines score sheet for this same factor. The stated purpose of the sentencing guidelines is to establish a uniform set of standards to guide the judge in the sentencing process. Fla.R.Crim.P. 3.701(b). Built into the guidelines is a provision for increasing a defendant’s score if he is under legal constraints at the time of the offense. Thus, the guidelines contemplate that those who are convicted of similar crimes and who were under legal constraint at the time of their offense will be treated uniformly in the absence of other factors justifying different treatment. We find a lack of logic in considering a factor to be an aggravation allowing departure from the guidelines when the same factor is included in the guidelines for purposes of furthering the goal of uniformity.

Thus, as in several recent cases before this court, one of the reasons for departure adopted by the trial court is permissible, while others are not. See Young v. State, 455 So.2d 551 (Fla. 1st DCA 1984); Carney v. State, 458 So.2d 13 (Fla. 1st DCA 1984).

In Young and Carney, we certified the following as being a question of great public importance:

WHEN AN APPELLATE COURT FINDS THAT A SENTENCING COURT RELIED UPON A REASON OR REASONS THAT ARE IMPERMISSIBLE UNDER FLA.R.CR.P. 3.701 IN MAKING ITS DECISION TO DEPART FROM THE SENTENCING GUIDELINES, SHOULD THE APPELLATE COURT EXAMINE THE OTHER REASONS GIVEN BY THE SENTENCING COURT TO DETERMINE IF THOSE REASONS JUSTIFY DEPARTURE FROM THE GUIDELINES OR SHOULD THE CASE BE REMANDED FOR A RESENTENCING.

The same question could be certified in this case; however, we find that some clarification is appropriate here. One of the asserted reasons for departure is appropriate and three are inappropriate. The valid reason alone might support the departure if the inappropriate reasons were disregarded by this court. In Carney we indicated that the general rule would be to affirm when both permissible and impermissible reasons were stated “where the reviewing court finds that the trial court’s decision to depart from the guidelines ... would not have been affected by elimination of the impermissible reasons or factors stated.” 458 So.2d at 17. In other words, a guidelines departure will be affirmed if this court finds that the existence of impermissible reasons constitutes harmless error. In this case we are unable to find that the reliance on the three impermissible reasons was harmless error. However, we certify the following question as being of great public importance:

WHEN AN APPELLATE COURT FINDS THAT A SENTENCING COURT HAS RELIED ON ONE OR MORE IMPERMISSIBLE REASONS FOR DEPARTING FROM THE SENTENCING GUIDELINES, AND HAS ALSO RELIED ON ONE OR MORE PERMISSIBLE REASONS, MAY THE APPELLATE COURT APPLY THE HARMLESS ERROR RULE AND AFFIRM THE SENTENCE?

Reversed and remanded for further proceedings consistent with this opinion.

SHIVERS, J., concurs.

NIMMONS, J., concurs and dissents with written opinion.

NIMMONS, Judge,

concurring in part and dissenting in part.

I agree with the majority’s views regarding each of the four reasons given by the trial court. However, I continue to adhere to the view that if at least one of the reasons given by the trial court passes muster as a clear and convincing reason for imposing sentence outside the guidelines, even though other reasons do not, affirmance is in order. See Young v. State, 455 So.2d 551, 553 (Fla. 1st DCA 1984) (Nimmons, J., dissenting); compare Mitchell v. State, 458 So.2d 10 (Fla. 1st DCA 1984). I would, therefore, not disturb the sentences. However, I do agree that the question posed in the majority opinion should be certified.

      . Our conclusion on this point would appear to conflict philosophically with the Fifth District’s holding in Hendrix v. State, 455 So.2d 449 (Fla. 5th DCA 1984).

      . See also Swain v. State, 455 So.2d 533 (Fla. 1st DCA 1984).


author: JOANOS, Judge.

text:
    Guy Calvin BARNES, Appellant, v. STATE of Florida, Appellee.
    No. AX-178.
    District Court of Appeal of Florida, First District.
    Jan. 11, 1985.
    Michael E. Allen, Public Defender, P. Douglas Brinkmeyer, Asst. Public Defender, Tallahassee, for appellant.
    Jim Smith, Atty. Gen., Lawrence A. Ka-den, Asst. Atty. Gen., Tallahassee, for ap-pellee.
   JOANOS, Judge.

This is an appeal from a trial in which a jury found Guy Calvin Barnes guilty of sale of cannabis, a third degree felony. Adjudication of guilt was withheld and he was placed on probation for three years. The appeal is premised on the allegation that the trial court erred in denying appellant’s motion in limine by which appellant sought to introduce evidence of prosecuto-rial intimidation of a defense witness. We affirm.

Appellant was charged with selling or aiding and abetting the sale of a controlled substance. The charge against appellant stemmed from the arrest of appellant’s father, John Barnes, on charges of selling controlled substances. The state alleged that appellant was present in his father’s business at the time an undercover officer purchased a quarter pound of marijuana from John Barnes. At this same meeting, the officer and John Barnes discussed the purchase of larger amounts of marijuana and Quaaludes.

Some time later, John Barnes arranged a delivery of what later proved to be counterfeit methaqualone tablets. The actual delivery was made by John Barnes’s youngest son, who was 17 at the time of the incident. John Barnes left the officer, after advising him that he (Barnes) would send his son over with the “Stuff.” As the officer counted out the money for purchase of the tablets, another officer placed Barnes’s youngest son under arrest. Later that same day, John Barnes was booked on two counts of sale of marijuana and one count of sale of counterfeit methaqualone. John Barnes pled guilty to one count of sale of marijuana and was placed on probation for three years.

Appellant was arrested two weeks after the arrest of his father and youngest brother. He pled not guilty, and filed a motion to dismiss predicated on the position that he was not present at the business during the time period specified by the state as the time in which the transaction took place. In addition, appellant filed a notice of alibi, and a list of the witnesses by whom he proposed to establish his alibi.

Prior to trial, appellant filed a motion in limine seeking an order permitting introduction of evidence at trial that the prosecutor had attempted to intimidate John Barnes when he learned that John Barnes intended to file an affidavit stating that appellant had no part in and was not present at the drug transaction with which he had been charged. In a hearing on the motion, the trial court was advised that the prosecutor had telephoned John Barnes’s attorney to notify him that he might subject himself to prosecution for perjury or violation of probation in consequences of the affidavit. Appellant argued that the evidence should be admitted to serve as indication of the state’s lack of confidence in the strength of its case. The trial court ruled the evidence inadmissible unless John Barnes was induced to recant the testimony contained in his affidavit.

At trial, John Barnes’s testimony was consistent with his affidavit. During the charge conference, defense counsel again sought admission of the prosecutor’s communication with John Barnes’s attorney for the same reasons previously urged. Since John Barnes had not recanted, the trial court deemed the evidence irrelevant and excluded it on that basis.

Following a jury verdict, appellant filed a motion for new trial premised primarily on the ground that the trial court erred in excluding the prosecutor’s alleged intimidation of John Barnes. At hearing on the motion for new trial, defense counsel urged that had the evidence regarding the prosecutor’s response to John Barnes’s affidavit been admitted, counsel could have argued the courage — hence the credibility — of John Barnes. Appellant’s motion for new trial was denied, and this appeal followed.

We note at the outset that our affirmance in this case is not to be construed as approval of the prosecutor’s alleged conduct in communicating with John Barnes’s attorney. We find that the prosecutor’s alleged conduct must be deemed harmless error, however, State v. Murray, 443 So.2d 955, 956 (Fla.1984), for his communication with John Barnes’s attorney did not constitute “evidence tending to prove or disprove a material fact” at issue in this case. § 90.401, Fla.Stat. (1983). Appellant again urged submission of evidence of the prosecutor’s communication with John Barnes’s attorney as indicative of the state’s consciousness of the weakness of its case against appellant. Whether the evidence is in fact indicative of the state’s perception of the weakness of its case, it still does not constitute evidence tending to prove or disprove the guilt of the accused. The material fact in issue in this case was whether or not appellant was present at the August 9, 1982, drug transaction between an undercover officer and appellant’s father, John Barnes. Counsel for appellant urges that the notification to John Barnes that he risked prosecution for perjury if he testified at trial consistent with his affidavit constitutes evidence of intimidation, which should have been submitted to the jury as evidence that the state was uncertain that it could prevail on the charge against appellant. We decline this argument finding that the evidence which appellant sought to have admitted was not relevant to the material issue, i.e., whether or not appellant was present at the drug transaction between his father and the undercover officer. See: State v. Joseph, 419 So.2d 391, 392 (Fla. 3d DCA 1982).

Appellant may be correct in asserting that the proffered evidence was relevant to the issue of John Barnes’s credibility. John Barnes’s credibility was certainly a matter to be considered by the jury. The prosecutor in closing argued that John Barnes’s testimony was biased due to his natural interest in a favorable outcome for his son. For that reason, the testimony regarding the prosecutor s alleged “threat to prosecute John Barnes for perjury may have been admissible to rebut or to counter the attack on John Barnes’s credibility. Mercer v. State, 40 Fla. 216, 24 So. 154, 159 (1898); Kellam v. Thomas, 287 So.2d 733, 734 (Fla. 4th DCA 1974); McCormick on Evidence § 49 (2d Ed. 1972). This credibility argument, however, was not presented to the trial judge during the trial so as to overcome the otherwise irrelevancy of the evidence. It was not argued until the hearing on the motion for new trial. It has been argued on appeal. However, since it was not timely presented, it is not cognizable on appeal and so we do not consider it. Steinhorst v. State, 412 So.2d 332, 338 (Fla.1982); Dickey v. State, 458 So.2d 1156 (Fla. 1st DCA 1984).

AFFIRMED.

WIGGINTON and BARFIELD, JJ., concur.


author: SMITH, Judge.

text:
    Frances M. WILLIAMS, Appellant, v. DELTA UPSILON FRATERNITY and Aetna Casualty & Surety Company, Appellees.
    No. AX-232.
    District Court of Appeal of Florida, First District.
    Jan. 11, 1985.
    Thomas W. Davis of Law Offices of Barton, Cox & Davis, Gainesville, for appellant.
    Barry D. Graves of Ritch & Graves, P.A., Gainesville, for appellees.
   SMITH, Judge.

Claimant, who suffered a pre-1979 disabling back injury, appeals an order of the deputy commissioner awarding her attorney a fee of $4,500.00, claiming that the amount awarded is inadequate considering the services rendered, and that the deputy’s order inadequately explains the basis for the amount awarded. We agree and reverse.

On February 8, 1978, claimant fell and hurt her back while working as a cook for Delta Upsilon Fraternity. She was hospitalized eighteen days and since then has suffered back and radiating right leg pain. She also claims a loss of bowel and bladder control due to the industrial accident. In the summer of 1978, claimant moved to California where Dr. Mongrain became her treating physician.

The employer/carrier paid temporary total disability benefits from February 8, 1978, until September 10, 1982. At this time, relying on the report of their examining physician, Dr. Barta, the employer/carrier took the position that claimant had reached maximum medical improvement and had suffered no permanent physical impairment due to her industrial accident.

On December 28, 1982, claimant filed a claim for continuing temporary total disability benefits. Alternatively, she contended that if she had reached maximum medical improvement, then she was permanently totally disabled or permanently partially disabled. She asked for continuing treatment by Dr. Mongrain, including but not limited to intestinal bypass surgery as recommended. Finally, she asked for attendant home health care aid and attorney’s fees.

A hearing was held on this elaim on May 16, 1983. Prior to the hearing, Dr. Mon-grain’s deposition had been taken in California by claimant’s California counsel. At the final hearing, claimant requested and was granted permission to take another deposition of Dr. Mongrain which was taken by her Florida counsel telephonically on July 20, 1983. After Dr. Mongrain’s second deposition, the employer/carrier accepted claimant as permanently totally disabled effective July 21, 1983.

In his July deposition, Dr. Mongrain testified that he had seen claimant over 200 times since the accident and that her condition had gotten progressively worse. She has been hospitalized at least five times since she has been in California. He diagnosed claimant’s condition as a degenerating disc at L-5/S-1 causing both right and left radiculopathy and spinal cord irritation as well as intermittent muscle spasm. Because of her back condition and pain, claimant lies on the floor 80% of the time. She can stand for fifteen minutes or so after physical therapy, but otherwise can stand for only a few minutes before she must lie down. Dr. Mongrain causally related claimant’s loss of bowel control to the spinal cord irritation she suffered as a result of the accident. He noted that she was an extremely obese woman and that her obesity hindered treatment. He felt there was only a 107» chance that a laminectomy would improve claimant’s condition given her present weight. However, if claimant had intestinal bypass surgery resulting in weight loss and a laminectomy was performed, he felt there was at least a 50% chance that her condition would improve. Finally, he testified that he had requested the carrier to perform these surgeries four years earlier but the carrier had continually refused to authorize the surgeries. He stated that he had never seen a person with this type of back condition go so long without surgery. He implied that claimant’s loss of bowel control could have been avoided if claimant had had surgery earlier. If the recommended surgeries were not performed, Dr. Mongrain felt that claimant had reached maximum medical improvement and was permanently totally disabled.

Based on Dr. Mongrain’s deposition, the deputy entered an order on August 17, 1983, finding that claimant had been temporarily totally disabled from the onset of her injury. He ordered the employer/carrier to pay the claimant temporary total disability benefits from September 10, 1982, and continuing as long as claimant remains temporarily totally disabled. He directed the employer/earrier to furnish claimant attendant care three hours a day and such medical care and attention as the nature of her injury and the process of her recovery might require, including bypass surgery and a laminectomy as prescribed by Dr. Mongrain. An attorney’s fee was awarded to claimant’s attorney and jurisdiction was reserved to determine the amount after submission of affidavits. This order was not appealed.

At the hearing on attorney’s fees, claimant’s attorney took the position that he was entitled to an attorney’s fee based upon permanent total disability benefits because the employer/carrier’s acceptance of claimant as permanently totally disabled was not timely and was solely attributable to the actions of her attorney in gathering information and demonstrating the basis for an award of permanent total disability benefits. In response to the employer/carrier’s claim that their first notice of claimant’s true condition came after the second deposition of Dr. Mongrain was taken, claimant points out that their asserted reliance upon the earlier report from Dr. Barta that claimant suffered no permanent physical impairment as a result of her industrial accident was unjustified. Dr. Barta based his opinion on the assumption that not until 1981 did claimant complain of right leg pain from the 1978 accident. However, claimant’s attorney points out that Dr. Barta ignored the report of Dr. Mauldin dated-March 21, 1978, and of Dr. Freeman dated May 30, 1978, both of which indicated claimant was complaining of right leg pain and diagnosed nerve root irritation at L-5. Moreover, claimant’s attorney notes that Dr. Barta ignored Dr. Mongrain’s earlier notations of radiating right leg pain.

On the other hand, the employer/carrier took the position that the deputy’s order of August 17, 1983, finding the claimant to be temporarily totally disabled took precedence over the prior voluntary acceptance of permanent total disability by the employer/carrier; therefore, attorney’s fees cannot be awarded for permanent total benefits, since these benefits have not yet been ordered. Alternatively, the employer/carrier maintained that if the August 17, 1983 order did not take precedence, the acceptance of permanent total disability by the employer/carrier was timely, since Dr. Mongrain’s deposition was the first knowledge they had that claimant had reached maximum medical improvement and was permanently totally disabled. At the hearing, counsel for the employer/carrier admitted that they had accepted claimant as permanently totally disabled within twenty-one days of Dr. Mongrain’s deposition in an effort to avoid an attorney’s fee based on recovery of these benefits by the claimant’s attorney.

The deputy found that his order of August 17, 1983, took precedence over the employer/carrier’s prior acceptance of claimant as permanently totally disabled, and that the claimant’s present status is that of being temporarily totally disabled and in need of further medical treatment. Accordingly, he found that claimant’s attorney was not entitled to a fee based upon permanent total disability benefits. He awarded the claimant’s attorney $4,500.00, basing this sum upon the affidavits submitted, his knowledge of the case, the difficulty of proof, and all other relevant matters as set forth in Lee Engineering & Construction Company v. Fellows, 209 So.2d 454 (Fla.1968).

On appeal, claimant’s attorney contends that he is entitled to a fee based upon the employer/carrier’s untimely acceptance of claimant as permanently totally disabled, and that even if this court disagrees with this premise, the deputy’s order is reversible because the deputy failed to appropriately consider the statutory factors enumerated in Section 440.34(1), Florida Statutes (1977), and failed to state the basis of his findings in his order.

In response to claimant’s first contention, we agree with the deputy that since the parties did not appeal the deputy’s August 17, 1983 order, that it became final after thirty days, and it is conclusively established that claimant’s present status is that of being temporarily totally disabled and in need of further medical treatment. The employer/carrier’s act of accepting claimant as permanently totally disabled subsequent to the final hearing in this case and before the deputy entered his order is a nullity and has no legal effect. We recognize the prior cases holding that a judicial award of benefits or a determination of rights is contemplated only when an unresolved dispute comes before the deputy commissioner. Miami Beach First National Bank v. Dunn, 85 So.2d 556 (Fla.1956); and Florida Tile-Sikes Corp. v. Roberts, IRC Order 2-2750, 9 FCR 196 (1975). Nevertheless, we find that the parties submitted claimant’s claim to the deputy for resolution before the employer/carrier accepted claimant as permanently totally disabled. Although the employer/carrier subsequently accepted claimant as permanently totally disabled, there remained an actual dispute between the parties of whether claimant was temporarily totally disabled instead, and thus entitled to further medical treatment. The deputy determined that she was, and his order adjudicating this issue was not appealed and became final.

Notwithstanding the above, we find reversible error. The deputy’s order, which merely states that the factors in Lee Engineering were considered, without explaining how those factors were applied, is inadequate. Department of Health & Rehabilitative Service/Division of Blind Services v. Bean, 485 So.2d 967 (Fla. 1st DCA 1983). Claimant’s Florida counsel submitted an affidavit stating that he spent in excess of 87.5 hours prosecuting this claim while California counsel has spent an additional 71.6 hours on the ease for a combined total of 159.1 hours. The deputy’s order compensates these attorneys at the meager hourly rate of approximately $29.00 per hour. While this hourly rate might conceivably be appropriate given certain circumstances, we have not been advised by the deputy why counsels’ efforts have been valued so low. Without the benefit of the legal logic indulged in by the deputy in arriving at this fee, we are unable to engage in an orderly review and the deputy’s order must be reversed. Commercial Carrier Corp. v. Porter, 452 So.2d 125 (Fla. 1st DCA 1984).

In their arguments supporting the amount of the fee awarded in this case, the employer/carrier have placed major emphasis upon the fact that claimant’s counsel simply secured temporary benefits for claimant rather than permanent total disability benefits. While the amount of monetary benefits secured for the claimant is an important consideration in the determination of an appropriate fee, it is not the only consideration. In this case, any attempt to limit the award based upon the fact that only temporary benefits were obtained rather than permanent total disability benefits is wholly unrealistic. This fails to take into consideration the length of time and skill required for claimant’s attorneys to establish the severity of claimant’s condition and to causally relate her numerous and serious conditions to the industrial accident. In our view, there is very little difference in the compensable time and effort required on the part of claimant’s attorneys to recover temporary total disability benefits, further medical care, and attendant care, than would have been necessary to establish that claimant is permanently totally disabled. See Moss v. Keller Industries, Inc., 393 So.2d 574, 578 (Fla. 1st DCA 1981), and cases cited therein. If the proposed medical procedures obtained through claimant’s attorney’s efforts here are successful, then claimant’s condition in life will have been substantially improved. If the operations are not successful, permanent total disability benefits are assured, again because of the attorney’s efforts. We fail to see how one result could be viewed as less beneficial than the other in considering the reasonable compensation to be awarded the attorney, nor, for that matter, can we see any justification for withholding payment in full — justly due the attorney — until one of these predictable results occurs.

Here, the employer/carrier resisted the payment of further benefits and medical treatment to claimant, forced the claim for additional temporary and/or permanent benefits to a hearing, and then attempted to avoid liability for attorney’s fees by voluntarily accepting claimant as permanently totally disabled. We strongly disapprove actions such as this which tend to give the impression, no doubt unjustifiably in this case, that the workers’ compensation system is one in which money-saving by manipulation of the law is the order of the day.

We caution the deputy and parties that in arriving at an appropriate fee in this case upon remand, the fact that the deputy has determined claimant is temporarily totally disabled rather than permanently totally disabled should not be translated into a mathematical reduction in attorney’s fees based upon the monetary amount of benefits awarded claimant. Such a result would ignore the intrinsic value of the attorneys’ efforts in establishing claimant’s condition and entitlement to continuing benefits and medical treatment from the employer/carrier, which the employer/carrier unsuccessfully resisted.

REVERSED and REMANDED.

BOOTH and THOMPSON, JJ., concur.


author: HENDRY, Judge.

text:
    Daniel BRICKER, Appellant, v. The STATE of Florida, Appellee.
    No. 83-1524.
    District Court of Appeal of Florida, Third District.
    Jan. 15, 1985.

      Bennett H. Brummer, Public Defender, and Henry H. Harnage, Asst. Public Defender, for appellant.
    Jim Smith, Atty. Gen., and Calianne P. Lantz, Asst. Atty. Gen., for appellee.
    Before HENDRY, HUBBART and DANIEL S. PEARSON, JJ.
   HENDRY, Judge.

By this appeal, Daniel Bricker challenges his conviction of bribery [§ 838.015, Fla. Stat. (1981)] and receiving unauthorized compensation for official behavior [§ 838.-016(1), Fla.Stat. (1981)].

Bricker was employed by the State of Florida Department of Professional Regulation (Department) as an inspector of beauty salons for licensing requirements and sanitation purposes. In the fall of 1982, the Department issued a delinquency list of beauty salons with expired licenses. One of these salons, Avant Garde, was inspected by Bricker who reported to his supervisor that he thought the owner was trying to bribe him. The supervisor advised Bricker that there was nothing Brick-er could do unless somebody gave him something and he could document the transaction. Bricker prepared a memorandum of the incident, wrote up the salon for their violations of the licensing requirements and dropped the matter.

A week later, Bricker investigated another salon, La Coupe Pedrangel (La Coupe), whose owner, Torres, could not produce a salon or a personal beautician license. Several customers were in the salon on the day Bricker called on La Coupe. Bricker initially inquired of Torres where the licenses were, to which Torres replied that Bricker should contact his (Torres’) lawyer. Brick-er persisted in asking for proof of the licenses, to the point of disrupting business in the salon. As several of the customers were staring at the two men, it was suggested that the two men go into the back room of the shop. There, a discussion of licenses and possible fines ensued wherein each party suspected the other of possible bribery. Bricker told Torres that he could be fined up to $500. Torres replied that he could not afford to be out of the shop and asked Bricker, “if there was some way to take care of it, a couple of hundred dollars or something?” Bricker replied that “he was listening.” Torres said that he didn’t have sufficient money at that time and Bricker would have to return the following Monday. Bricker then wrote up an inspection report reciting the applicable violations and had Torres sign the report. After Bricker left La Coupe, Torres returned to his customers and told them what had transpired in the back room. Subsequently, Torres informed the state attorney’s office that a possible bribery would occur on Monday! At the request of police officers, Torres agreed to be body-wired for the meeting. The officers provided him with an envelope containing five one hundred dollar bills. The investigators then set up a perimeter surveillance for that Monday.

Meanwhile, Bricker had asked an employee of the State of Florida Division of Licensing to run a corporate check on La Coupe. However, Bricker had left for La Coupe on the Monday in question before the results were known. Bricker entered the beauty salon, which was closed, and accompanied Torres to the back room. After much discussion, but without being requested to do so, Torres took out the envelope that the state attorney’s office had provided and threw it on the table. Bricker examined the contents and exclaimed, “Five hundred dollars! What are you talking about? I never said that,” and returned two of the five one hundred dollar bills. Bricker remained for another thirty minutes and gave Torres additional information regarding new licenses for the shop. Upon exiting the beauty salon, Bricker was arrested. He later met with his supervisors and explained that he had attempted to trap Torres; Bricker was thereafter fired.

At trial the state presented the tape of the body wire as evidence, in addition to testimony of the two customers who were in the La Coupe salon during the initial encounter. Additionally, over objection, the testimony of the owner of the Avant Garde salon was admitted into evidence. In the latter’s testimony it was stated that Bricker had received from him a one hundred dollar bribe. Following trial, the jury found Bricker guilty as charged in the La Coupe incident, and he was sentenced to two concurrent four year terms of imprisonment.

Bricker raises two points in this appeal. First, he contends that it was error for the trial court to allow, over objection, evidence of a similar crime (the Avant Garde bribery), which he states only went to prove his criminal propensity, thereby depriving him of a fair trial. Second, he asserts that the trial court erred by admitting, over objection, hearsay testimony as to a crucial issue, thus additionally denying him a fair trial. We agree and reverse.

During opening argument, the state made references to the Avant Garde incident. Subsequently, the state was allowed to present two witnesses, the owners of the Avant Garde salon who testified that they gave Bricker one hundred dollars to not report the license violations. During closing argument, the state again made reference to the Avant Garde salon to show a common scheme by which Bricker received the bribes.

Section 90.404(2)(a), Florida Statutes (1981), provides that:

[s]imilar fact evidence of other crimes, wrongs, or acts is admissible when relevant to prove a material fact in issue, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident, but it is inadmissible when the evidence is relevant solely to prove bad character or propensity.

The state codified the holding of Williams v. State, 110 So.2d 654 (Fla.), cert. denied, 361 U.S. 847, 80 S.Ct. 102, 4 L.Ed.2d 86 (1959), which stated that the test for admissibility is relevancy. Id. at 661.

The state urges that the similar criminal act was properly admitted to show a common scheme for Bricker’s behavior in the two incidents. The state points to the common elements of both, to-wit: Bricker entered a busy salon and, in front of clients, made requests to inspect licenses; Bricker spoke to the salon operators away from public view; he discussed the same amount of money and/or the $500 fine; and made two separate visits to each salon.

Although collateral crime evidence is admissible to show a common plan, scheme, or pattern of criminality, or to establish identity, it is not admissible where the collateral crime is merely similar to the crime for which the defendant is on trial. Crammer v. State, 391 So.2d 803 (Fla. 2d DCA 1980). The test for admissibility is not that there be greater similarity than dissimilarity between the crimes. Rather, as we stated in Green v. State, 427 So.2d 1036 (Fla. 3d DCA), pet, for rev. denied, 438 So.2d 834 (Fla.1983), “[t]he similar crimes test is a stringent one: there must be something so unique or particularly unusual about the perpetrator or his modus operandi that it would tend to establish, independently of an identification of him by the collateral crime victim, that he committed the crime charged.” Id. at 1038, citing Sias v. State, 416 So.2d 1213 (Fla. 3d DCA), pet. for rev. denied, 424 So.2d 763 (Fla.1982); Beasley v. State, 305 So.2d 285 (Fla. 3d DCA 1974); Duncan v. State, 291 So.2d 241 (Fla. 2d DCA 1974); Marion v. State, 287 So.2d 419 (Fla. 4th DCA 1974). In this case, as we held in Green, there are no features of the prior incident which are so unique as to be, when compared with the present offense, a “fingerprint type” characteristic. The statute is calculated to prevent the unfairness of convicting the accused on the basis of a showing that he had a propensity to commit a crime such as the one charged. Evidence that the defendant has committed a similar act will frequently prompt a more ready belief by the jury that he might have committed the one with which he is charged, thereby predisposing the minds of the jurors to believe the accused guilty. Waterhouse v. State, 429 So.2d 301 (Fla.1983). For the reason that the jury will view the irrelevant evidence of the demonstrated criminal activity as evidence of guilt of the crime charged, the admission of such irrelevant evidence is presumed harmful error. Straight v. State, 397 So.2d 903 (Fla.), cert. denied, 454 U.S. 1022, 102 S.Ct. 556, 70 L.Ed.2d 418 (1981). Violations of the Williams rule may be considered harmless only where proof of guilt is clear and convincing so that even without the collateral evidence introduced in violation of Williams, the defendant would clearly have been found guilty. Adan v. State, 453 So.2d 1195 (Fla. 3d DCA 1984); Clark v. State, 378 So.2d 1315 (Fla. 3d DCA 1980). We do not view the proof of guilt against the appellant in this ease as so clear and convincing that the error committed below may be deemed harmless. Accordingly, the conviction must be reversed and the cause remanded for a new trial.

Inasmuch as this case must be retried, we briefly note that appellant’s second contention has merit. The testimony of the two customers present at La Coupe at the time of the incident was offered to prove the truth of what transpired in the meeting between Bricker and Torres and, as such, was hearsay testimony. § 90.-801(l)(c), Fla.Stat. (1981). In the absence of an applicable hearsay exception, hearsay evidence is inadmissible. Hunt v. State, 429 So.2d 811 (Fla. 2d DCA 1983); § 90.802, Fla.Stat. (1981). Since the outcome of this case turned largely on the comparative credibility of Bricker and Torres, the error of the trial court in allowing the customers to testify as to what Torres said transpired in the back room of the salon cannot be classified as harmless. Food Fair, Inc. v. Anderson, 382 So.2d 150 (Fla. 5th DCA 1980); Wallace v. Rashkow, 270 So.2d 743 (Fla. 3d DCA 1972).

For the reasons stated, the appellant’s conviction is reversed and the cause remanded for a new trial.

Reversed and remanded for a new trial.


author: PER CURIAM.

text:
    E.P., a juvenile, Appellant, v. The STATE of Florida, Appellee.
    No. 83-2241.
    District Court of Appeal of Florida, Third District.
    Jan. 15, 1985.

      Bennett H. Brummer, Public Defender, and Howard K. Blumberg, Asst. Public Defender, for appellant.
    Jim Smith, Atty. Gen., and Richard E. Doran, Asst. State Atty., for appellee.
    Before SCHWARTZ, C.J., and HUB-BART and JORGENSON, JJ.
   PER CURIAM.

The adjudication of delinquency for the offense of battery on a law enforcement officer, under Section 784.07(l)(a), (2), Florida Statutes (1983), is affirmed upon a holding that a security officer employed by the Dade County School Board is a law enforcement officer within the meaning of the above-stated statute. We reach this conclusion based on the following, briefly stated, legal analysis.

First, a law enforcement officer, as defined under Section 784.07(l)(a), Florida Statutes (1983), includes those persons who fall within the generic class of law enforcement officers; for guidance in determining which individuals fall within this generic class, one may look to Section 790.001(8)(a), Florida Statutes (1983). Soverino v. State, 356 So.2d 269, 273 (Fla.1978). Second, a law enforcement officer, as defined by Section 790.001(8)(a), Florida Statutes (1983), includes a school board employee having the legal authority to make arrests. Third, a security officer employed by the Dade County School Board has the legal authority to make arrests and carry concealed weapons under Chapter 70-519, Laws of Florida (1970), which was retained as a valid regulation of the Dade County School Board by Chapter 71-29(4), Laws of Florida (1971).

It therefore follows that the adjudication of delinquency for the offense of battery on a law enforcement officer, to wit: a security officer of the Dade County School Board, was properly entered below. Moreover, no attack is made on the adjudication of delinquency for the offenses of trespass and battery also entered below. The adjudication of delinquency under review is therefore in all respects

Affirmed.


text:
    FRED TEITELBAUM CONSTRUCTION COMPANY OF FLORIDA, INC., Appellant, v. SANTE FE DEVELOPMENT CORPORATION, Appellee.
    No. 84-461, 84-462.
    District Court of Appeal of Florida, Third District.
    Jan. 15, 1985.
    Rehearing Denied Feb. 8, 1985.

      Wicker, Smith, Blomqvist, Tutan, O’Hara, McCoy, Graham & Lane and Richard A. Sherman and Steven Berger, Miami, for appellant.
    Mitchell, Harris, Canning, Murray & Usich and Robert Murray, Miami, for ap-pellee.
    Before SCHWARTZ, C.J., and HUB-BART and JORGENSON, JJ.
   PER CURIAM.

The final summary judgment under review which was entered on a theory of contractual indemnity is reversed based on the following, briefly stated, legal analysis.

First, New York law governs in determining whether the contract of indemnity herein provides a legal basis for the indemnity judgment entered below. The contract of indemnity was made in New York, and under controlling Florida law the legal obligations of an indemnity contract are governed by the law of the place where the contract was made. Pfaudler Co. v. Sylvachem Corp., 400 So.2d 503 (Fla. 3d DCA 1981); Jemco, Inc. v. United Parcel Service, Inc., 400 So.2d 499 (Fla. 3d DCA 1981).

Second, New York law is well-settled that “contracts will not be construed to indemnify a person against his own negligence unless such intention is expressed in unequivocal terms.” Thompson-Starrett Co. v. Otis Elevator Co., 271 N.Y. 36, 2 N.E.2d 35, 37 (1936). The subject contract of indemnity, upon which the final judgment rests, does not express in unequivocal terms that the third-party defendant subcontractor [Fred Teitelbaum Construction Company of Florida, Inc.] agrees to indemnify the third-party plaintiff owner [Sante Fe Development Corporation] for tort claims based on the latter’s own negligence. It therefore follows that, under governing New York law, the contract of indemnity herein can provide no legal basis for the indemnity judgment entered below.

The final summary judgment under review is therefore reversed and the cause is remanded to the trial court for further proceedings.


text:
    MAJOR APPLIANCES, INC., a Florida corporation, Appellant, v. MOUNT VERNON FIRE INSURANCE COMPANY, Appellee.
    No. 84-481.
    District Court of Appeal of Florida, Third District.
    Jan. 15, 1985.
    Rehearing Denied Feb. 12, 1985.

      Klein, Oshinsky & Solomon and Michael Solomon, Hallandale, for appellant.
    Walton, Lantaff, Schroeder & Carson and Todd DerOvanesian, Jr. and Sally Doerner, Miami, for appellee.
    Before NESBITT, BASKIN and FERGUSON, JJ.
   PER CURIAM.

Plaintiff appeals an order denying its motion for default and granting defendant-insurer’s motion to dismiss. We reverse.

A number of issues aré raised by this appeal, but the central question is whether, under the substituted service of process statute, the failure of delivery of a notice of suit was chargeable to the defendant-insured. See § 48.161(1), Fla.Stat. (1983) (method of substituted service on nonresident). We hold that because the failure to satisfy this statute was owing to the conduct of the defendant-insured, plaintiff was excused from strict compliance with the statutory requirements.

Plaintiff brought suit against John Mercer Terminal Warehouse Co., Inc. [hereinafter John Mercer], and its insurer, for the corporation’s alleged failure to return certain merchandise which had been placed in storage. Service was effected on the corporation’s business agent and office manager. At the time the state court action was filed, unknown to plaintiff, John Mercer was involved in bankruptcy proceedings. An order restraining the bringing or prosecution of any civil claim against John Mercer had been entered by a federal district court prior to the filing of the state court action. The corporation was involuntarily dissolved for failure to file its 1976 annual report. After John Mercer had been discharged in bankruptcy, the plaintiff attempted substituted service of its amended complaint on one of the members of the corporation’s last board of directors, Barbara Strang, at the address reflected in the corporation’s 1975 annual report. The receipt for certified mail was returned marked “unclaimed” and “unknown.”

Plaintiff then moved for default against John Mercer based on its last attempt at substituted service of the amended complaint on Barbara Strang. It later filed an amended motion for default directed to service of the original complaint on the business agent of the then active defendant. This motion was denied, as was plaintiff’s renewed motion for default based on the substituted service of the amended complaint. The trial court also granted defendant insurer’s motion to dismiss the complaint. On rehearing, the court clarified that its reasons for dismissal were that (1) the original service was invalid due to the pending bankruptcy of John Mercer, and (2) the substituted service of the amended complaint was invalid due to the lack of a return receipt signed by a trustee of John Mercer. This appeal is brought from the order of dismissal.

The controlling authority is Zarcone v. Lesser, 190 So.2d 805 (Fla. 3d DCA 1966). As in this case, the plaintiff in Zarcone had attempted to effect substituted service on a nonresident defendant, but the registered letters were returned marked “unclaimed.” The court, for procedural reasons not pertinent here, had declined to rule on defendant’s motion to quash service for failure to comply with the substituted service statute. In ordering the trial court to proceed to determination on the merits of the motion to quash, this court held that if the notices mailed to defendant were returned because of fault on the part of defendant, then the lack of a return receipt would not invalidate the service and plaintiff would be excused for failure to file the receipt as required by the statute.

The plaintiff in this action relied upon the address contained in John Mercer’s last annual corporate report. A number of cases from other jurisdictions have held, as we hold here, that where the nonresident defendant doing business in the state fails to file a correct address for the purpose of substituted service, plaintiff’s attempt to effect service at the address furnished by defendant is valid. See Greenwood v. White, 25 A.D.2d 73, 266 N.Y.S.2d 1012 (1966); Hendershot v. Ferkel, 144 Ohio St. 112, 56 N.E.2d 205 (1944); Williams v. Egan, 308 P.2d 273 (Okla. 1957).

We do not reach the plaintiff’s alternative position that its first attempt at service on John Mercer’s business agent and office manager was valid even though the federal court stay was in effect at that time. Further, we find no merit in the alternative theories for affirmance urged by the defendant-insurer.

Reversed and remanded for further proceedings.

      . We reject the defendant’s contention that this suit was untimely commenced pursuant to section 607.297, Florida Statutes (1983), which permits actions against a dissolved corporation only within three years of the dissolution. An action is deemed commenced upon the filing of the complaint, Fla.R.Civ.P. 1.050, and the date that service of process is effected is not relevant to that determination. The complaint in this action was filed on August 27, 1976. The fact that a stay had been granted by a federal district court on March 10, 1976, does not support the defendant's position, as the federal court stay tolled the time period for bringing an action in the state court. See Lincoln Joint Stock Land Bank v. Barnes, 143 Neb. 58, 8 N.W.2d 545, cert. denied, 320 U.S. 781, 64 S.Ct. 191, 88 L.Ed. 469 (1943) (where mortgagee was enjoined by a federal court from proceeding with state foreclosure action, statute of limitations did not run during the period that mortgagee was prevented from exercising his legal remedy).
      We need not decide whether the filing of a complaint during the period of a court-imposed stay of commencement and prosecution of a civil action will ever constitute a nullity. On the facts of this case, we would not give the restraining order that effect since plaintiff was a creditor which should have been listed as such and given notice of the existence of the proceedings, but was not. We interpret the restraining order as suspending the complaint during the pendency of the stay. Plaintiffs civil action was thus effectively commenced on the date the restraining order was lifted.


author: NESBITT, Judge.

text:
    LEASE FINANCING CORPORATION, Appellant, v. NATIONAL COMMUTER AIRLINES, INC. and National Aircraft Systems, Inc., Appellees.
    Nos. 84-812, 84-1030.
    District Court of Appeal of Florida, Third District.
    Jan. 15, 1985.

      Morgan, Lewis & Bockius and Lowell L. Garrett and John A. Bussian III, Miami, for appellant.
    Finley, Kumble, Wagner, Heine, Under-berg, Manley & Casey and Gregory P. Bor-gognoni and J. Michael Nifong, Miami, for appellees.
    Before NESBITT, BASKIN and FERGUSON, JJ.
   NESBITT, Judge.

Lease Financing Corporation (LFC) appeals an interlocutory order which dissolved a prejudgment writ of replevin and required LFC to turn over to National Commuter Airlines (NCA) an aircraft and its records. We have jurisdiction. Fla.R. App.P. 9.130(a)(3)(C)(ii). We reverse.

Pursuant to an installment sales contract entered into on June 29, 1983, NCA purchased from LFC an aircraft known as the “486 aircraft.” As part of the sales agreement NCA agreed to give LFC a security interest in a collateral aircraft known as the “274 aircraft.” NCA defaulted on its payments beginning in October 1983. Pursuant to the agreement, LFC attempted to repossess the 486 aircraft and the 274 aircraft as well as the records pertaining to each.

Although LFC was successful in gaining possession of the two aircraft and some of the records, it failed to obtain all the records and parts of the aircraft. LFC, therefore, filed a verified complaint for re-plevin pursuant to section 78.055, Florida Statutes (1983), seeking possession of the 274 aircraft and all the records and parts of the 274 aircraft and the 486 aircraft. Based upon the verified complaint, a prejudgment writ of replevin was issued pursuant to section 78.068, Florida Statutes (1983).

Within ten days of the service of the writ, NCA filed a contradictory motion with the court seeking dissolution of the writ. See § 78.068(6), Fla.Stat. (1983). The cause proceeded to hearing where LFC rested on its verified complaint and two affidavits. NCA cross-examined the two affiants who were present at the hearing, but put on no witnesses of its own. Following the hearing, the. trial court entered an order dissolving the prejudgment writ of replevin as to the 274 aircraft and its records. LFC appeals the propriety of this dissolution.

We are not the first to recognize that chapter 78 of the Florida Statutes, dealing with replevin, is not a model of clarity and draftsmanship. See Weigh Less For Life, Inc. v. Barnett Bank of Orange Park, 399 So.2d 88 (Fla. 1st DCA 1981); Williams, Prejudgment Remedies, 31 U.Miami L.Rev. 1165 (1977). What is clear, however, is that a prejudgment writ of replevin may issue if the court finds that the defendant has failed to make payments as agreed. Landmark First National Bank of Fort Lauderdale v. Beach Bait & Tackle Shop, Inc., 449 So.2d 1287 (Fla. 4th DCA 1983); Waite Aircraft Corp. v. Ford Motor Credit Co., 430 So.2d 1003 (Fla. 4th DCA 1983); § 78.068(2), Fla.Stat. (1983). It is undisputed in the present case that NCA has failed to make payments to LFC that it agreed to make pursuant to the installment sales agreement. It necessarily follows that it was error for the court to dissolve the prejudgment writ of replevin. See Beach Bait & Tackle Shop.

LFC’s verified complaint for replevin contained all the requisites of section 78.-055, including a statement that LFC was entitled to possession of the sought-after property pursuant to the installment sales contract. See § 78.055(2), Fla.Stat. (1983). A copy of the contract was attached to the complaint. Paragraph 14A and B of the contract gave LFC the right to take immediate possession of the 274 aircraft upon default by NCA. In addition, LFC had the right to possession of all records and papers relating to the aircraft upon default under paragraphs 7A and 13A(v) of the contract. The amount of the debt owed under the contract was alleged to be $280,-000 and LFC posted an appropriate bond of $560,000. § 78.068(3), Fla.Stat. (1983). Both the verified complaint and the affidavit of LFC’s vice president, relied upon by LFC at the dissolution hearing, established that NCA had defaulted on the agreement by its failure to make four separate installment payments which were past due. NCA did not contradict the allegations of failure to pay and so it was not entitled to dissolution of the writ. See Waite Aircraft Corp.

NCA complains to this court, as it did to the trial court, that LFC is over-collateral-ized and, therefore, the prejudgment writ was properly dissolved with respect to the 274 aircraft and its records. NCA argues that the 486 aircraft, already in the possession of LFC, has a value far in excess of the debt allegedly owed and that, therefore, LFC has no right to possession of the 274 aircraft. We disagree.

NCA entered into an installment sales agreement with LFC for the purchase of an aircraft. In order to get satisfactory financing, NCA agreed to grant LFC a security interest in both the aircraft being purchased and the 274 aircraft which NCA already owned. As part of that agreement, NCA granted LFC the right to take immediate possession of the two aircraft and their records in the event of a default. Nothing in the contract provides for the release of these rights or a reduction in the security interest upon partial payment or any other event other than full payment; nor does the contract provide that the value of the aircraft or the debt owing has any effect on LFC’s right to possession of the aircraft and their records in the event of a default by NCA. The parties are bound by the contract they freely entered.

Further, we find the law does not prohibit a secured creditor from taking possession of property he has a contractual right to possess pending the outcome of a suit, regardless of its value. Cf. § 679.503, Fla.Stat. (1983) (“a secured party has on default the right to take possession of the collateral”). In fact, it appears that the value of the collateral is irrelevant in the determination of whether a prejudgment writ of replevin is properly issued and is only relevant for the limited purpose of setting bond. See Waite Aircraft Corp.

The dissenting opinion in Beach Bait & Tackle Shop expressed the view that a debtor in default should not be subject to automatic replevin of secured goods, but rather the party in whose possession the collateral will retain the most value should be used as the basis for determining whether a prejudgment writ of replevin should be issued. 499 So.2d at 1288 (Anstead, C.J., dissenting on denial of petition for rehearing). This view was obviously not adopted by the majority. The supreme court responded to a similar concern in Gazil, Inc. v. Super Food Services, Inc., 356 So.2d 312, 313 n. 4 (Fla.1978), where, in holding the prejudgment replevin statute constitutional, the court noted:

Gazil argues that the legislation imper-missibly allows a mere default in payments as a ground for replevin. See § 78.068(2), Fla.Stat. (Supp.1976). We do not see in Mitchell [v. W.T. Grant Co., 416 U.S. 600, 94 S.Ct. 1895, 40 L.Ed.2d 406 (1974) ] or any subsequent Supreme Court decision a limitation on the state’s right to identify the circumstances which are appropriate for replevin. See North Georgia Finishing, Inc. v. DiChem, Inc., 419 U.S. 601, 95 S.Ct. 719, 42 L.Ed.2d 751 (1975).

See also Waite Aircraft Corp.

The cases relied upon by NCA are inapposite at this point in the proceedings. We agree with the cases cited by NCA, that the value of the collateral is relevant at the final judgment stage of the proceedings. See J.E. Joyner, Inc. v. Ettlinger, 382 So.2d 27 (Fla. 1st DCA 1979), appeal after remand, 421 So.2d 656 (Fla. 1st DCA 1982); Modine Manufacturing Co. v. Israel, 294 So.2d 369 (Fla. 3d DCA), cert. denied, 303 So.2d 644 (Fla.1974). See also Lazzari v. Gordon, 214 So.2d 102 (Fla. 3d DCA 1968). This case, however, is at the prejudgment stage. An order upholding or dissolving a prejudgment writ of replev-in following a hearing held pursuant to section 78.068(6), is not a final determination of ownership, but merely determines which party is entitled to possession of the disputed property pending final adjudication of the claims of the parties. Weigh Less for Life.

If NCA ultimately obtains a final judgment in its favor it has a remedy under section 78.21, Florida Statutes (1983). In addition, this section specifically provides that it does not preclude any other remedies available under the laws of this state. Thus, NCA can also take advantage of any remedies available under chapter 679, Florida Statutes (1983) or under general tort law as it exists in this state.

Accordingly, the order dissolving the prejudgment writ of replevin is reversed and the cause remanded for further proceedings.

      . Under section 78.068(3), LFC was required to post a bond "in the amount of twice the value of the goods subject to the writ or twice the balance remaining due and owing, whichever is lesser.” LFC posted bond in twice the amount of the balance remaining due. NCA does not dispute that the bond was posted in the proper amount. In fact, NCA's whole argument is premised on the fact that the debt owed is less than the value of the property subject to the writ.

      . See supra note 1.

      . In Joyner, relied upon by NCA, the court specifically indicated that the secured party had the right to possession of the collateral at the prejudgment stage, 382 So.2d at 30, despite the fact that the value of the collateral exceeded the amount of the lien, 421 So.2d at 657.


text:
    Benny MALVER, Appellant, v. SHEFFIELD INDUSTRIES, INC., Appellee.
    No. 84-1182.
    District Court of Appeal of Florida, Third District.
    Jan. 15, 1985.

      Edward J. Schack, Oakland Park, for appellant.
    Arnold Nevins, Miami Beach, for appel-lee.
    Before SCHWARTZ, C.J., and HUB-BART and NESBITT, JJ.
   NESBITT, Judge.

Malver, having elected to stand on his second amended complaint, appeals its ultimate dismissal. We affirm the dismissal, but remand with directions to allow an amendment of Count I of the complaint.

In Count I, a breach of contract count, Malver sought recovery of medical insurance and disability payments which were lost when his employment was terminated by Sheffield Industries, Inc. (Sheffield). Because the contract of employment was of indefinite duration, it was terminable at will. Smith v. Piezo Technology & Professional Administrators, 427 So.2d 182 (Fla.1983). However, Sheffield, the employer, was required under the law to give Malver reasonable notice of termination. Perri v. Byrd, 436 So.2d 359 (Fla. 1st DCA 1983). If Malver pleads and proves that there was no reasonable notice given, he can recover those damages which were caused by the failure to give such notice. Byrd. Since it appears from the complaint that such an allegation can be made, Malver should be permitted to amend Count I.

In Count II, Malver attempted to allege a tortious interference with a contract or expectancy. The gist of the count appears to be that Sheffield’s termination of Malver’s employment tortiously interfered with his expected insurance benefits. Since the expectancy which was allegedly interfered with flowed directly from Sheffield’s employment relationship with Malver, it is not possible for the plaintiff to state a cause of action for interference. A.R.E.E.A., Inc. v. Goldstein, 411 So.2d 310 (Fla. 3d DCA 1982); Ethyl Corp. v. Balter, 386 So.2d 1220, 1223-24 (Fla. 3d DCA 1980).

Accordingly, the order dismissing the complaint is affirmed with directions that the plaintiff be allowed to amend Count I. Affirmed with directions.


author: SCHWARTZ, Chief Judge.

text:
    Nathan WIEN and Elizabeth Wien, Appellants, v. QUAYSIDE REALTY, INC., Appellee.
    No. 84-1688.
    District Court of Appeal of Florida, Third District.
    Jan. 15, 1985.
    Goldberg, Semet, Lickstein & Morgenst-ern, and Alan R. Stone, Miami, for appellants.
    Rubin, Baum, Levin, Constant, Friedman & Bilzin and Richard L. Allen and David Trench, Miami, for appellee.
    Before SCHWARTZ, C.J., and HUB-BART and JORGENSON, JJ.
   SCHWARTZ, Chief Judge.

In the light cast by Florida’s established and salutary policy in favor of determining cases on their merits, Bland v. Viking Fire Protection, Inc. of the Southeast, 454 So.2d 763 (Fla. 2d DCA 1984); Burbank v. Southland Corp., 345 So.2d 1108 (Fla. 1st DCA 1977), it is clear that the trial court incorrectly refused to set aside a default and default judgment entered no more than forty days after the defendants had been served in Brooklyn, New York. The record shows that the filing of the affidavits of service — which awakened the case from its previous dormancy, Klosenski v. Flaherty, 116 So.2d 767, 769 (Fla.1959)— did not occur until more than twenty days after service, but see sec. 48.194, Fla.Stat. (1983); Fla.R.Civ.P. 1.070(b); Klosenski v. Flaherty, 110 So.2d 685, 686 (Fla. 3d DCA 1959), quashed in part on other grounds, 116 So.2d 767 (Fla.1959), and that Florida defense counsel, who had been monitoring the action, filed motions to dismiss and to set aside the default very shortly after the filing had come to their attention and within two and four days respectively of the default. Since, on these facts, the requirements of a meritorious defense, excusable — if any — neglect, due diligence, and, most important of all, the demands of justice, have all been satisfied, the default may not be permitted to stand. Huerta v. Saphin, 459 So.2d 438 (Fla. 3d DCA 1984); B.C. Builders Supply Co., Inc. v. Maldo nado, 405 So.2d 1345 (Fla. 3d DCA 1981); McAlice v. Kirsch, 368 So.2d 401 (Fla. 3d DCA 1979).

Reversed.

      . Service took place on April 24, 1984. The affidavits of service and an ex parte motion for default were simultaneously filed with the clerk of the lower court on May 23, 1984. On June 1, 1984, the trial judge entered a default judgment (for the $8,400 liquidated amount demanded) which was filed on June 4, 1984. The defendant filed a motion to dismiss on June 6, and a motion to set aside the default with accompanying affidavits on June 8, 1984.

      . We take notice that a period of at least several days may elapse between the execution of an order or the filing of a paper and its appearance on the docket sheet and in the court file.