author: ANSTEAD, Chief Judge.

text:
    Janice HOWLETT, Appellant, v. SOUTH BROWARD HOSPITAL TAX DISTRICT d/b/a Memorial Hospital and State of Florida, Department of Labor and Employment Security, Unemployment Appeals Commission, Appellees.
    No. 83-2597.
    District Court of Appeal of Florida, Fourth District.
    June 13, 1984.

      Mary Anne Robertson, Legal Aid Service of Broward County, Inc., Fort Lauderdale, for appellant.
    Paul C. Heidmann of Muller, Mintz, Kornreich, Caldwell, Casey, Crosland & Bramnick, P.A., Miami, for appellee South Broward Hosp. Dist.
    John D. Maher, Tallahassee, for appellee Unemployment Appeals Com.
   ANSTEAD, Chief Judge.

We reverse the decision on review holding that the appellant is not entitled to unemployment benefits because she was allegedly discharged for misconduct. Florida courts have repeatedly held that the unapproved temporary absence of an employee for the purpose of responding to a legitimate family emergency does not constitute willful and wanton disregard for the employer’s interest such as to justify denial to the employee of unemployment compensation. See, e.g., Lamb v. Unemployment Appeals Commission, 424 So.2d 197 (Fla. 5th DCA 1983); Hartenstein v. Florida Department of Labor and Employment Security, 383 So.2d 759 (Fla. 2d DCA 1980); Tucker v. Florida Department of Commerce, 366 So.2d 845 (Fla. 1st DCA 1979); Williams v. Florida Industrial Commission, 135 So.2d 435 (Fla. 3d DCA 1961). Our review of the record reflects no dispute as to the existence of the family emergency and the appellant’s reasonable efforts to respond thereto, and at the same time keep her employer advised and to promptly return to her employment.

The decision of the Commission is hereby reversed with directions that an order be entered granting appellant’s claim for benefits.

DOWNEY and HURLEY, JJ„ concur.

      . As an aside we also note that we initially received a comprehensive brief from the appellant’s former employer which in our view completely and adequately addressed the issues and arguments raised by the appellant. Subsequently, however, we also received an extensive brief from the Unemployment Appeals Commission, the same quasi-judicial body that has passed on the merits of appellant’s claim and appeal. While we realize the interest of the Commission in seeing that its policies and decisions are adequately explained to this court, and the necessity and helpfulness of the Commission’s participation in an appeal, especially when an opposing brief would not otherwise be filed by an interested party such as the former employer, we question the economy and propriety of the advocacy of the Commission in instances such as the case at hand.


source: Caselaw Access Project

author: DOWNEY, Judge.

license: Public Domain

text:
    Helen K. SMILEY, William Smiley, and Preferred Risk Mutual Insurance Company, Appellants, v. Charles T. McCALLISTER and Myra J. McCallister, Appellees.
    No. 83-1023.
    District Court of Appeal of Florida, Fourth District.
    June 13, 1984.

      Richard A. Sherman of Law Offices of Richard A. Sherman, Fort Lauderdale, for appellants.
    Walter G. Campbell, Jr., of Krupnick & Campbell, P.A., Fort Lauderdale, for appel-lees.
   DOWNEY, Judge.

Appellants, Mr. and Mrs. Smiley, and their insurance carrier, were defendants in a personal injury action arising out of an accident between the Smileys’ automobile and a motorcycle driven by appellee, Charles McCallister. Appellants have filed this appeal from a final judgment in favor of appellees and from a denial of appellants’ motion for new trial and motion to interview one of the jurors.

During voir dire examination of the prospective jurors both counsel interrogated the jurors regarding involvement of their families or relatives in automobile accidents. Several of the prospective jurors acknowledged that family members or relatives had been so involved and defense counsel interrogated them further regarding that experience and its effects, if any, upon the particular juror. During all of this examination one of the prospective jurors ultimately accepted for jury service, Ms. Lopez, never acknowledged any incidents involving her family or relatives. After the jury returned a verdict for plaintiff-appellees and the court entered judgment in accordance with that verdict, appellants filed a motion for a new trial and a motion to interview Ms. Lopez, alleging that after the verdict was published Ms. Lopez advised one of the plaintiffs in the presence of defense counsel that her son-in-law had been involved in the same type of accident. It was alleged that, had defense counsel known that during jury selection, he might well have excused Ms. Lopez. The motions were denied and that order of denial forms the basis of this appeal.

Concealment of a material fact relevant to the issues in the case by a juror during voir dire examination is prejudicial to the interrogating parties and impairs a party’s right to challenge jurors. Loftin v. Wilson, 67 So.2d 185 (Fla.1953), and other cases cited at 38 Fla.Jur.2d, New Trial, § 20. In a case of this nature similar accidents and injuries in which other relatives and family members of prospective jurors have been involved are of utmost interest to the parties for it can have a strong influence on a juror’s approach to the resolution of litigation arising out of such accidents. This truism no doubt could be found on page one of a primer for freshmen trial lawyers. Ms. Lopez’s motives in not disclosing such information, if in fact the allegation that she did not is true, is of no consequence. The verdict could well have been fatally infected by such omission. Thus, the refusal to grant appellants’ motion for a jury interview is reversible error. It does not suffice for appellees to point out that none of the other jurors who acknowledged family accidents were stricken from the venire. Who knows what further inquiry of Ms. Lopez would have divulged had counsel been afforded the opportunity to develop the point with Lopez?

Accordingly, we reverse the order denying the motion for a jury interview and direct the trial court to enter an an order providing therefor. We also reverse the order denying the motion for new trial and direct that further ruling on said motion be held in abeyance pending the outcome of the interview.

REVERSED AND REMANDED, with directions.

ANSTEAD, C.J., and DELL, J., concur.


author: PER CURIAM.

text:
    Mario H. RUSSO, Appellant, v. DEPARTMENT OF HEALTH AND REHABILITATIVE SERVICES, Appellee.
    No. AS-195.
    District Court of Appeal of Florida, First District.
    June 13, 1984.
    Rehearing Denied July 11, 1984.
    Jon D. Caminez, Tallahassee, for appellant.
    Theodore E. Mack, Asst. Gen. Counsel, Dept, of Health and Rehabilitative Services, Tallahassee, for appellee.
   PER CURIAM.

This cause is before us on appeal from an order of the Career Service Commission (Commission) affirming the action of the Department of Health and Rehabilitative Services (HRS) in dismissing the appellant from his position as a psychiatrist at the Florida State Hospital in Chattahoochee! We affirm.

Appellant contends that the proceedings leading to his dismissal denied him substantive and procedural due process. Appellant received notice that the hospital’s Medical-Dental Staff Executive Committee was investigating charges against him and that hearing would be held affording him an opportunity to be heard before the Committee made its recommendation. Contrary to the requirements of Rule 22A-10.042(3)(b), Florida Administrative Code, however, the notice did not specify the charges against the appellant nor did it identify the documents upon which the charges were based. Florida State University v. Tucker, 440 So.2d 37 (Fla. 1st DCA 1983). Additionally, the records upon which the appellant’s dismissal was based, although requested by appellant’s attorney, were not made available prior to appellant’s dismissal by HRS.

Fundamental fairness requires that the agency make available to the employee, upon his request, all documents upon which the charges against him are based so that he may adequately prepare a defense to those charges before he is disciplined or dismissed. Failure to do so may constitute reversible error requiring us to set aside the agency action and remand the case for whole new proceedings.

In the instant case, appellant was afforded an extensive de novo evidentiary hearing before the Commission and, prior to that hearing, was accorded full discovery rights, including being furnished all requested documents. Thus, we have reviewed the record and are unable to discern any prejudice which was not cured by the agency affording discovery and de novo hearing.

The appellant also contends that there was no competent, substantial evidence to support the Commission’s conclusion that there was just cause to support the appellant’s dismissal. We disagree. We have examined the record and find that the Commission’s conclusion is amply supported by competent, substantial evidence.

The order is affirmed.

BOOTH, SMITH and ZEHMER, JJ., concur.


author: NIMMONS, Judge.

text:
    W. Forney OSBURN, Appellant, v. The SCHOOL BOARD OF OKALOOSA COUNTY, Florida, a public body corporate, Appellee.
    No. AU-423.
    District Court of Appeal of Florida, First District.
    June 13, 1984.

      John D. Carlson of Woods & Carlson, Tallahassee, for appellant.
    Louis F. Ray, Jr., of Ray & Kievit, Pensacola, for appellee.
   NIMMONS, Judge.

Osburn appeals from a declaratory statement issued by the Okaloosa County School Board. We affirm in part and reverse in part.

Osburn has been employed in the Okaloo-sa County school system since 1963. In 1973, he became principal at Carver-Hill Kindergarten Center. He was awarded a continuing contract as principal in 1977. In March, 1982, the Carver-Hill school was closed and Osburn was reassigned to the position of assistant principal at a junior high school.

In January, 1982, in anticipation of the closing of Carver-Hill, Osburn requested appointment to a vacant principal position at a high school. He was not appointed to that position, nor has he been appointed to any other principal positions which have became vacant. Those who were appointed were not under continuing contract as principals. Osburn continued to hold the position of assistant principal at the junior high school.

Osburn petitioned for a declaratory statement and a Section 120.57(1) hearing. After conducting an evidentiary hearing, the School Board entered a declaratory statement determining: (1) that Osburn did hold a continuing contract as principal; (2) that his current position of assistant principal at the junior high school, although not identical with his previous position as principal, was at least similar to it; (3) that Osburn would be entitled to continue in such a similar position in the Okaloosa school system without the necessity of annual nomination or reappointment; and (4) that Osburn would continue at the higher of the salary schedule authorized by the Board for his current position or the salary he last received as principal of Carver-Hill.

Osburn contends that his present position as assistant principal at the junior high school is not similar to his previous position as principal at the Carver-Hill, that the School Board was obligated to assign him to one of the principalship vacancies which have, from time to time, occurred in the Okaloosa school system, and that the salary provision in the Board’s order is erroneous.

Sections 231.36(3)(e) and (g), Florida Statutes (1981) provide:

(e) Each person to whom a continuing contract has been issued as provided herein shall be entitled to continue in his position or in a similar position in the district at the salary schedule authorized by the school board without the necessity for annual nomination or reappointment until such time as the position is discontinued, the person resigns, or his contractual status is changed as prescribed below.
(g) Any person who has previously earned continuing contract status as a supervisor or principal in the school district shall be continued in that status until such time as the position is discontinued, the person resigns, or his contractual status is changed by mutual agreement or as prescribed below.

Under these statutory provisions, Osburn was entitled, upon the closing of Carver-Hill, to be assigned to another principalship or other similar position in the Okaloosa school system. See Berkner v. School Board of Orange County, 373 So.2d 54 (Fla. 4th DCA 1979); Burns v. School Board of Palm Beach County, 283 So.2d 873 (Fla. 4th DCA 1973). The assistant principalship which Osburn now occupies at the junior high school is certainly not identical to the position of principal. But that is not what the statute requires. And the record in this case reflects sufficient similarities in the two positions to satisfy the statutory requirement. Moreover, Section 228.041(10)(b), Florida Statutes (1981), is instructive:

(b) Principal. — A principal is an employee, qualified in accordance with s. 231.15, who is assigned responsibility for administrative direction and instructional supervision at an individual school. For purposes of classification, he may be either:
1. A building principal who is designated as the administrative head of a school; or
2. An assistant principal who is assigned limited administrative and supervisory duties within a school.

In Berkner v. School Board of Orange County, supra, it was held that the transfer of a continuing contract principal to the status of program coordinator was proper inasmuch as the two positions were similar, Berkner’s salary continued to be commensurate with that of a principal and he remained on continuing (as opposed to annual) contract status.

We, therefore, reject Osburn’s contention that the School Board was obligated to reassign him to one of the principalship vacancies which, from time to time, have developed in the Okaloosa school system since the closing of Carver-Hill.

Finally, we deal with the School Board’s salary provision for Osburn. The Board’s order provided that Osburn would continue “at the higher of the salary schedule authorized by the Board for his position or the salary he last received as principal of Carver Hill.” This means that he will be paid on the basis of the salary schedule for the junior high assistant principalship which he presently occupies or the salary he last received two years ago as principal of Carver-Hill. That does not satisfy the requirements of law. Even though administrative reasons may justify reassignment to a different position, a person under a continuing contract is entitled to be paid the salary for the position for which his contract has been issued. Burns v. School Board of Palm Beach County, supra, 389 So.2d at 875. Locking in Osburn to his 1982 salary rate, without regard to the current salary schedule of principals, violates Osburn’s contract rights.

When the kindergarten centers were closed down in Okaloosa County, the students were assigned to the various elementary schools. For purposes of the determination of Osburn’s salary rights under his continuing contract as a principal, the salary schedule applicable to principals of elementary schools should be applied to Osburn. To the extent that such salary schedules vary depending upon enrollment, the last student enrollment at Carver-Hill should govern Osburn’s salary entitlement. We, therefore, reverse that part of the Board’s order pertaining to the salary rights of appellant and hold that he is entitled to the salary authorized by the Board for the position in which he is serving or the salary schedule authorized by the Board for the position of elementary school principal, whichever is greater. Affirmed in part and reversed in part and remanded for further proceedings consistent with this opinion.

MILLS and SMITH, JJ., concur.

      . Carver-Hill was closed and its students were transferred to other schools pursuant to a school plant survey conducted by the Department of Education.


text:
    Frederick PETERSON and Katherine Peterson, Appellants, v. DEPARTMENT OF BUSINESS REGULATION, Appellee.
    No. AW-280.
    District Court of Appeal of Florida, First District.
    June 13, 1984.

      W. Crit Smith of Cason & Henderson, Tallahassee, for- appellants.
    Thomas L. Barnhart, Tallahassee, for ap-pellee.
   NIMMONS, Judge.

This is an appeal from a final order of the Department of Business Regulation denying appellants a Section 120.57 hearing. We reverse and remand for a hearing.

Appellants sought to obtain a liquor license through the lottery process conducted by the Division of Alcoholic Beverages and Tobacco pursuant to the provisions of Section 561.19, Florida Statutes (1981). Appellants’ application for one of three available licenses in Brevard County was among those included in the pool from which the random drawing was made and which drawing determined the order in which the license applications would be considered. Appellants came in fourth in the drawing behind applicants George Keal, Leonard Dexter Jones and Gail Passaretti who were ultimately awarded the three licenses.

Appellants’ petition for a 120.57 hearing alleged that the applications of Keal, Jones and Passaretti should have been disqualified because (1) applicant Keal was directly or indirectly interested with another applicant, George Donnall, in the proposed business, and Keal also did not have a properly zoned location for his business when his application was filed; (2) applicant Jones was directly or indirectly interested with another applicant, Joseph Allen Williams, in the proposed business; and (3) applicant Passaretti did not have a properly zoned location for her business when her application was filed.

Section 561.19(4) provides, in pertinent part:

(4) * * * Any applicant whose name is included in the pool for drawing to determine priority but who is not granted a license shall be entitled to request a hearing on the denial pursuant to s. 120.57 only on the grounds that the selection process was not conducted in accordance with law or that the licensee selected does not possess the qualifications required by law.

Initially, we reject the Department’s interpretation of the above section that an applicant, while “entitled to request” a hearing, has no right to such a hearing and that any such hearing is totally discretionary with the Department. That is simply not a reasonable construction of the statute.

Next, we deal with appellants’ claim that the selection process was not conducted in accordance with law because applicant Keal and another applicant, Donnall, both had an interest in the same business for which the license was sought and because of the similar claim directed at the applications of Jones and Williams. The question is whether these allegations, if true, establish that the selection process was not conducted in accordance with the applicable law.

Section 561.19(2), which sets forth the statutory requirements for conducting the random selection process, includes the following requirement:

(2) * * * The director shall not include more than one application from any one person, firm or corporation in the random selection process, nor may he consider more than one application for any one person, firm, or corporation when there are fewer applications than available licenses.

Our determination of the intent of the above section requires consideration of the following definitional provision of Section 561.01(14):

(14) “Licensee,” “applicant,” or “person” means an individual, corporation, firm, partnership ... or any such entity having a financial interest, directly or indirectly, in another such entity.

We believe that the intent of Section 561.19(2), when read together with Section 561.01(14), is that it is improper to include in the drawing pool separate applications of persons who, directly or indirectly, are financially interested in the other applications. We assume that is why the Department initially rejected the application of appellant Frederick Peterson and the separate application of his wife, appellant Katherine Peterson. The Petersons were subsequently allowed to file one joint application which was included in the pool.

The applicants seeking to be included in the random selection pool were required to complete a form furnished by the Department entitled “Preliminary Application for New Quota Alcoholic Beverage License.” The information set forth in the Keal application and in the Donnall application clearly show that both applications sought a liquor license for the same business. The proposed name of the business and its location appear as the same on the face of both applications. Since there was no 120.57 hearing, we do not know whether the Department simply ignored the apparent “duplicative” applications or investigated and determined that they were not, for some reason, violative of the Section 561.-19(2) proscription against duplicative applications. We are of the view that appellants are entitled to a 120.57 hearing on the alleged improper inclusion in the pool of both the Keal application and the Donnall application.

On the other hand, it does not appear from the face of the Jones application and the Williams application that there was any duplication or overlapping of interests in those applicants. Under the relatively new lottery procedures for issuing liquor licenses, the Department is required to fully investigate only those applications which are randomly selected from the pool. Section 561.18, Florida Statutes (1981). The preliminary applications on forms utilized by the Department are required to be completed and executed under oath by the applicant. The Department is entitled to rely upon the answers furnished by the applicant in screening them for inclusion in the pool. Cf. Wilkenfíeld v. Meiklejohn, 216 So.2d 237 (Fla. 1st DCA 1968). For this reason, the Department’s order was not in error insofar as those grounds of the petition pertaining to the Jones and Williams applications.

Likewise, the petition for hearing was insufficient insofar as it was grounded upon the assertion that applicants Keal and Passaretti did not have properly zoned locations when their preliminary applications were filed. The Department was entitled to rely upon the sworn preliminary applications which clearly represented that Keal’s and Passaretti’s proposed businesses were “properly zoned.”

The order appealed is reversed and the case is remanded for further proceedings consistent with this opinion.

THOMPSON and BARFIELD, JJ„ concur.


author: GRIMES, Judge.

text:
    STATE of Florida, Appellant, v. Dennis Troy BASS and Charles Wesley Keese, Appellees.
    No. 83-1686.
    District Court of Appeal of Florida, Second District.
    June 13, 1984.
    Jim Smith, Atty. Gen., Tallahassee, and Katherine V. Blanco, Asst. Atty. Gen., Tampa, for appellant.
    William Fuente, Tampa, for appellee Keese.
    No appearance for appellee Bass.
   GRIMES, Judge.

Appellees were charged with conspiracy to traffic in marijuana (count I) and trafficking in marijuana (count II). Pursuant to appellees’ motions, the court dismissed both counts. The state appeals.

This case arose out of what is commonly referred to as a “reverse-sting” operation. Appellees contacted a confidential informant seeking to purchase marijuana. The informant notified Tampa Police Department personnel who pretended they were in a position to furnish the marijuana. At the appointed time, appellees met with the police to consummate the purchase. An undercover detective delivered the marijuana to Bass who loaded it into his pickup truck while Keese was counting out the money to pay another detective. At this point the appellees were arrested.

Conspiracy to Traffic in Marijuana

Appellees pointed out at the trial level that the substantive offense underlying the conspiracy was the possession of the requisite amount of marijuana, and that they were going to obtain the marijuana from the police. Thus, they successfully argued that there could be no conspiracy because one of the essential ingredients of the substantive crime was to be performed by the police.

In King v. State, 104 So.2d 730 (Fla. 1958), two policemen arranged for Moscov-itz to carry on gambling and illegal bookmaking under their protection. The supreme court dismissed a conspiracy charge against the policemen because Moscovitz was an undercover agent and his conduct in the gambling operation was an “essential ingredient of the offense” which was the object of the conspiracy. Our court in State v. Brandon, 399 So.2d 459 (Fla. 2d DCA 1981), interpreted “essential ingredient of the offense,” as stated in King, to mean “essential element of the offense.” There defendant and a third party had agreed to sell marijuana to an undercover detective. We held that they could properly be convicted of conspiracy to possess marijuana even though they only would have been able to acquire the marijuana for resale through the use of front money furnished by the detective. The detective’s participation was deemed tangential to the crime of possession.

The recent case of State v. Cristodero, 426 So.2d 977 (Fla. 4th DCA 1982), applied these principles to a “reverse-sting” operation. In upholding an information charging three defendants with conspiracy to traffic in cannabis, the court said:

In the present case, the gravamen of the substantive offense underlying the conspiracy was possession of cannabis. The essential elements of the crime of possession are knowledge of the presence of contraband and the ability to maintain control over it or reduce it to possession. The undisputed facts reflect that defendants came to the scene to gain possession for themselves of a load of cannabis in return for the $240,000. The possession involved in this conspiracy is not the possession of the seller-police agent, but the anticipated possession of the defendants. Therefore, they intended to and agreed with each other to commit all of the ingredients of the crime charged. Simply because the government agents were to deliver the cannabis to the defendants at the scene does not mean the police alone were to commit an essential element of the substantive crime. Rather, as in Brandon, supra, we hold that the government agents’ participation was tangential to the gravamen of the substantive offense charged. This clearly differentiates the present case from King. In order to prove the conspiracy here it is not necessary to prove the substantive crime was completed but only that the defendants intended to and agreed with each other to commit the offense of trafficking in marijuana.

426 So.2d at 979-80.

Bass and Keese conspired with each other, not with the police, to obtain possession of marijuana. The police were to furnish the marijuana but they were not to perform an essential element of the substantive crime. The police participation was only tangential to the possession, the object of the conspiracy.

Trafficking in Marijuana

Count II was dismissed by virtue of an earlier ruling on appellees’ motion in limine which precluded the state from introducing evidence of the marijuana. In granting the motion in limine, the court concluded that the police had no statutory authority to deliver the marijuana. The court also referred to the fact that the marijuana used by the Tampa police had previously been the subject of a federal magistrate’s order to destroy it.

We are not aware of the need for specific statutory authority for the police to engage in “reverse-sting” deliveries of controlled substances. Section 893.09(5), Florida Statutes (1981), relieves law enforcement officers from civil or criminal liability as a result of lawful engagement in the enforcement of the laws relating to controlled substances. Moreover, the furnishing of a controlled substance by governmental agents in a “reverse-sting” operation has been held not to constitute entrapment as a matter of law. State v. Brider, 386 So.2d 818 (Fla. 2d DCA), petition for review denied, 392 So.2d 1372 (Fla.1980). We are not impressed with ap-pellees’ technical argument that section 893.13(4), Florida Statutes (1981), has the effect of prohibiting law enforcement agents from delivery, as contrasted to possession, of controlled substances except for medical or scientific purposes.

It may be that the federal authorities were subject to sanction for permitting the Tampa Police Department to use the marijuana. However, the Tampa police acted in good faith. The federal agents who furnished the marijuana told the officers that it was permissible to use the marijuana in a “reverse-sting” operation before it was destroyed. The propriety of such advice in no way diminishes the illegality of appellees’ conduct.

We reverse the order of dismissal with respect to both counts and remand for further proceedings.

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


author: BOARDMAN, Acting Chief Judge.

text:
    Raymond C. DISTISO, a/k/a Genero de Stefano, Appellant, v. Louie WAINWRIGHT, Appellee.
    No. 83-2110.
    District Court of Appeal of Florida, Second District.
    June 13, 1984.
    Jerry Hill, Public Defender, and Michael E. Raiden, Asst. Public Defender, Bartow, for appellant.

      Jim Smith, Atty. Gen., Tallahassee, and William I. Munsey, Jr., Asst. Atty. Gen., Tampa, for appellee.
   BOARDMAN, Acting Chief Judge.

Appellant Raymond C. Distiso, a prisoner incarcerated in DeSoto Correctional Institute, appeals the trial court’s order denying his petition for writ of habeas corpus. We reverse.

The Commonwealth of Pennsylvania requested temporary custody of Distiso pursuant to the Interstate Agreement on De-tainers, section 941.45-.50, Florida Statutes (1983). Pennsylvania’s request stated that Distiso was charged by complaint with the offense of escape, for which he would be brought to trial upon his return to that jurisdiction. A photocopy of the Pennsylvania charging document, containing a photocopied certification by a commonwealth district justice, accompanied the request.

Distiso opposed Pennsylvania’s request and subsequently filed a pro se petition for writ of habeas corpus. Appellant’s refusal to return voluntarily to the requesting jurisdiction prompted Florida Interstate Compacts Administrator Charles H. Lawson to request certified' copies of various documents, including the Pennsylvania charging instrument, from Pennsylvania District Attorney Michael E. Weinstein. Lawson advised Weinstein that Distiso’s opposition to the transfer would necessitate a judicial hearing under the United States Supreme Court’s holding in Cuyler v. Adams, 449 U.S. 433, 101 S.Ct. 703, 66 L.Ed.2d 641 (1981), and that the specified documents would be utilized in that proceeding. The record on appeal, however, does not include the particular documents supplied by Wein-stein in response to Lawson’s request.

Pursuant to Cuyler v. Adams, the state of Florida petitioned the circuit court to grant Pennsylvania’s request for temporary custody; after a hearing, the trial court conditionally granted the state’s petition. Similarly, the trial court subsequently denied appellant’s petition for writ of habeas corpus after conducting a second hearing during which the sufficiency of the photocopied certification was fully contested. The orders entered in both proceedings specifically found that the requesting state’s documents were in proper form, that criminal charges were pending against appellant in Pennsylvania, and that appellant correctly had been identified as the individual sought.

We disagree with the trial court’s conclusion that the documents relied upon by the requesting state were “in order.” Section 941.45(5)(b)2, Florida Statutes (1983), obligates the state accepting an offer of temporary custody to furnish upon demand “[a] duly certified copy of the indictment, information, or complaint on the basis of which the detainer has been lodged and on the basis of which the request for temporary custody of the prisoner has been made.” Thus, Mr. Lawson’s request for certified copies of the complaint, advanced in his official capacity as Interstate Compacts Administrator, apparently obligated Pennsylvania to furnish a “duly certified” copy of its charging document.

Suffice it to say that the record before us — which is dispositive of this appeal— simply does not contain a duly certified copy of the Pennsylvania compláint. None of the photocopied charging documents presented for our examination bears an original signature of the appropriate records custodian, and, thus, none can be said to have been duly certified. We note, of course, that Pennsylvania easily can correct this deficiency in subsequent proceedings; our decision in no way prejudices the state’s ability to gain temporary custody of Distiso by submitting a new request and, upon demand, presenting proper documentation under section 941.45(5)(b)2.

Accordingly, we REVERSE the trial court's order and REMAND with directions to grant appellant’s petition for writ of habeas corpus.

GRIMES and CAMPBELL, JJ., concur.

      . Florida Assistant State Attorney David Denny also requested triplicate certified copies of the same documents sought by Lawson. Again, the record does not contain the documents forwarded by Weinstein in compliance with this request. Nevertheless, it is clear that the copies of the Pennsylvania complaint presented to the trial court contained photocopied certifications.

      . Although neither party examines the statutory framework of the Interstate Agreement on De-tainers, both concede that a certified copy of the charging instrument was necessary in the instant case.


author: COLEMAN, T.P., Associate Judge.

text:
    INDIAN PINES, INC., Appellant, v. Paula B. PUTNAM, Appellee.
    No. 83-962.
    District Court of Appeal of Florida, Fifth District.
    June 14, 1984.
    William A. Parsons, P.A., Daytona Beach, for appellant.
    William H. Morrison, of William H. Morrison, P.A., Altamonte Springs, for appel-lee.
   COLEMAN, T.P., Associate Judge.

The sole issue raised in this appeal is whether the trial court was correct in its finding that two contracts for sale and purchase entered into by the appellant, as seller, and the appellee, as buyer, were conditioned upon the appellee obtaining mortgage financing.

The record clearly reflects that there was no representation by the appellant or its agent that the contracts were subject to such a contingency. The question then becomes whether the written contracts themselves contained language upon which one could reasonably determine that the contracts were contingent upon mortgage approval.

Each of the two contracts was identical except for the description of the condominium unit and the amounts of money required to be paid to fulfill each contract. Following are certain paragraphs from the contract related to unit Number 2C7. The contract for unit Number 1D3 contains identical operative language:

2. PURCHASE PRICE AND METHOD OF PAYMENT:
A. The purchase price for the Condominium Unit No. 2C7, as described in Paragraph 1 above is acknowledged to be $84,000.00, (including boat-slip) plus any extras specifically ordered by BUYER, and any such extras shall be ordered in writing by BUYER and paid for with the order.
B. Said purchase price shall be payable by BUYER as follows:
$ 7,400.00 DEPOSIT paid simultaneously herewith, receipt of which is hereby acknowledged by SELLER. (Not less than 10% of the Purchase Price shall be held by the undersigned Escrow Agent.)
$ 67,000.00 MORTGAGE BALANCE, if applicable as set forth herein. (See 7.C for details.)
$ 8,400.00 CASH BALANCE due from BUYER at closing, and closing to be as provided hereinafter.

Paragraphs 7C and 7D of the contracts then provide as follows:

C. Permanent loans are available from First Federal Savings and Loan Association of Mid-Florida to qualified buyers in an amount not to exceed 80% of the sales price or the appraisal, whichever is less for a term not to exceed 30 years. Interest rate on permanent loans will be the prevailing rate at the time of commitment. Permanent loans may be in the form of a renegotiable rate mortgage. No commitment will be issued sooner than 30 days from developers obtaining their Certificate of Occupancy. In addition to all normal closing costs, a 1½% loan fee will be charged on each permanent loan by the lender.
D. If BUYER desires to pay part of the purchase price from the proceeds of a first mortgage loan from other sources, BUYER may obtain such first mortgage loan through his own efforts, provided, however, that this Agreement shall not be subject to BUYER obtaining such first mortgage loan and the closing of this sale and purchase shall be as if BUYER did not require a first mortgage loan. BUYER shall pay all costs of obtaining such first mortgage loan.

Paragraph 9 of each of the contracts provides as follows:

Should BUYER fail to make any of the payments due hereunder, as hereinablve (sic) scheduled, or fail or refuse to execute the instruments required to close this transaction and the first mortgage, if any, or refuse to pay any costs or other sums required by this Agreement or otherwise default hereunder, and shall fail to correct such default within five (5) days after SELLER has given BUYER written notice of such default, then SELLER may declare this Agreement cancelled and retain all monies paid by BUYER including interest accrued on deposits made by BUYER as liquidated and agreed upon damages which SELLER shall have sustained and suffered as a result of BUYER’S default, and thereupon the parties hereto will be released from all obligations hereunder.

This Court cannot alter the factual findings of the trial court if there is any reasonable basis upon which the trial court’s findings might be warranted. However, we cannot read any of the above cited language to mean that the contracts were contingent upon the appellee qualifying for any mortgage financing. The language of the contracts clearly suggests that mortgage financing is available but does not base the obligations imposed by the contracts upon such financing.

Accordingly, we find that the trial judge erred in granting a summary judgment in favor of the appellee, and reverse that judgment for proceedings consistent with this opinion.

REVERSED.

DAUKSCH and COWART, JJ., concur.


author: ORFINGER, Chief Judge.

text:
    Donald Keith FRAZER, Appellant, v. STATE of Florida, Appellee.
    No. 83-1081.
    District Court of Appeal of Florida, Fifth District.
    June 14, 1984.

      James K. Freeland, P.A., Orlando, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Evelyn D. Golden, Asst. Atty. Gen., Dayto-na Beach, for appellee.
   ORFINGER, Chief Judge.

When the trial court denied appellant’s motion to dismiss the affidavit charging a probation violation, appellant entered a plea of guilty, specifically reserving his right to appeal the denial of his motion to dismiss.

Although there is no merit to the contention that the affidavit was insufficient and so we would ordinarily affirm, we must dismiss the appeal because there is no provision either in the statutes or the rules of procedure whereby a defendant may preserve for appeal a previously determined issue when he pleads guilty in a criminal proceeding. Appeals consequent upon the entry of a plea of guilty may only be taken as regards matters occurring contemporaneously with the entry of the plea or subsequent thereto. Robinson v. State, 373 So.2d 898 (Fla.1979). The fact that the plea here was entered in a probation violation does not change the rule.

The appeal is DISMISSED.

FRANK D. UPCHURCH, Jr. and CO-WART, JJ., concur.


author: COBB, Judge.

text:
    John Y. GADSON, Appellant, v. STATE of Florida, Appellee.
    No. 83-1374.
    District Court of Appeal of Florida, Fifth District.
    June 14, 1984.

      James B. Gibson, Public Defender, and Cynthia Karl-Stamm, Asst. Public Defender, Daytona Beach, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Evelyn D. Golden, Asst. Atty. Gen., Dayto-na Beach, for appellee.
   COBB, Judge.

The appellant, John Gadson, was convicted of forgery. He appeals, contending the state failed to prove the element of intent. We agree, and reverse.

The conviction here appealed resulted from Count VI of the information filed against Gadson, which read:

CHARGE: FORGERY, in violation of F.S. 831.01.
SPECIFICATIONS OF CHARGE: In that JOHN L. GADSON a/k/a DEWEY McLEMORE, on or about the 10th day of February, 1983, within Volusia County, Florida, did then and there falsely make or forge a BILL OF SALE and DIVISION OF MOTOR VEHICLE TAG FORM, with the intent to injure or defraud HAMILTON AUTO SALES, INC., and divers other persons.

The elements of the statutory offense of forgery are: (1) that there be a falsely made or materially altered written instrument of a specified class; (2) that the writing be of such a character that, if genuine, it might apparently be of legal efficacy for injury to another, or the foundation of a legal liability; and (3) that the writing must be made with a specific intent to injure or defraud. Brown v. State, 426 So.2d 76 (Fla. 1st DCA 1983); State v. Escobedo, 404 So.2d 760 (Fla.3d DCA 1981), review denied, 412 So.2d 464 (Fla.1982). Gadson does not dispute that the state satisfied the first two elements of the charge. However, he contends the state failed to establish a prima facie case regarding the element of intent to defraud or injure.

At trial, the state presented the following evidence relating to the forgery charge: On February 10, 1983, Gadson went to Virgil Hamilton’s car dealership where he inquired about a Chevrolet van. After Gadson test-drove the car, he gave Hamilton a $100.00 cash deposit and Hamilton wrote out a bill of sale for $1,550.00. Later that same day, Gadson returned with $1,430.00 in cash, which amount, plus the $100.00 deposit, Hamilton accepted as the purchase price. To reflect the actual price paid, Hamilton changed the amount written on the bill of sale from $1,550.00 to $1,530.00. Gadson showed Hamilton his license, which bore the name “Dewey McLemore,” and Hamilton referred to the license in filling out the bill of sale, the Division of Motor Vehicle In-Transit Tag Form and the Certificate of Title. Gadson signed the bill of sale on the buyer’s signature line, “Dewey McLemore.” Gadson also signed the In-Transit Tag Form on the “signature of applicant” line, “Dewey McLemore” and apparently used the same signature for the certificate of title. Hamilton indicated that the In-Transit Tag Form serves as a temporary registration and requires the buyer’s signature. On cross-examination, Hamilton stated that he did not feel defrauded or injured because he made a profit from the sale, even though Gadson’s real name was not “Dewey McLemore.” Another state witness, a Florida Highway Patrolman, testified, inter alia, that when he asked Gadson, who was in the van parked on a roadside, for identification, Gadson showed him a driver’s license, a Certificate of Title and an In-Transit Tag Form, all bearing the name “Dewey McLemore.”

The foregoing testimony was the only evidence which the state presented regarding the forgery charge, and at the close of the state’s case in chief, defense counsel moved for a judgment of acquittal on that charge. He argued that the state failed to establish the element of intent to defraud or injure. The court denied the motion. It also denied defense counsel’s renewed motion at the close of all the evidence.

To counter Gadson’s contention that the state failed to prove intent because Hamilton neither suffered harm nor felt defrauded, the state cites Hepburn v. Chapman, 109 Fla. 133, 149 So. 196 (1933), wherein the court recognized, “[I]t is not necessary to the crime of forgery that injury should have resulted to anyone; the intent to defraud being the essence of the offense in this regard.” Id. 149 So. at 200. The state maintains the intent element was established because both the bill of sale and the In-Transit Tag Form could deceive members of the public, e.g., using them as proof of car ownership to obtain credit. But the state did not offer evidence in this regard, nor did it make such argument at trial. Such speculation as to intended injury or fraud cannot support the third element necessary to establish the crime of forgery.

REVERSED.

DAUKSCH and COWART, JJ., concur.

      . Section 831.01, Florida Statutes (1983), provides:
      Forgery.-Whoever falsely makes, alters, forges or counterfeits a public record, or a certificate, return or attestation of any clerk or register of a court, public register, notary public, town clerk or any public officer, in relation to a matter wherein such certificate, return or attestation may be received as legal proof; or a charter, deed, will, testament, bond, or writing obligatory, letter of attorney, policy of insurance, bill of lading, bill of exchange or promissory note, or an order, acquittance, or discharge for money or other property, or an acceptance of a bill of exchange or promissory note for the payment of money, or any receipt for money, goods or other property, or any passage ticket, pass or other evidence of transportation issued by a common carrier, with intent to injure or defraud any person, shall be guilty of a felony of the third degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084.


author: SHIVERS, Judge.

text:
    George R. DEVINE, D.D.S., Appellant, v. DEPARTMENT OF PROFESSIONAL REGULATION, BOARD OF DENTISTRY, Appellee.
    No. AU-415.
    District Court of Appeal of Florida, First District.
    June 15, 1984.

      Paul Watson Lambert of Slepin, Slepin, Lambert & Waas, and Benjamin K. Phipps, Tallahassee, for appellant.
    Jim Smith, Atty. Gen. and M. Catherine Lannon, Asst. Atty. Gen., Tallahassee, for appellee.
   SHIVERS, Judge.

Appellant appeals the Board of Dentistry’s order finding that he is barred from maintaining a proceeding to challenge the results of his 1976 dental examination on the basis of laches and/or equitable estop-pel. We affirm.

Appellant, a licensed dentist in Massachusetts since 1953, participated in and failed the Florida dental licensure examina^ tions administered in 1974, 1975, 1976 and 1978. By petition dated May 6,1981, appellant challenged the grades he received on particular procedures conducted pursuant to these exams. A hearing was held on appellant’s petition on January 28th and 29th, 1982. At this hearing, appellant limited his challenge to the correctness of the scores he received on the June of 1976 examination. Specifically, appellant challenged the grades he received at the 1976 examination on the amalgam preparation and restoration procedures and the cast gold final restoration procedure.

Prior to the hearing conducted in 1982, appellant had hired an attorney to represent him in 1978 and in 1979 appellant’s attorney requested the Executive Director of the Board of Dentistry to produce appellant’s examination records. At that time, in 1979, all available examination documents were produced by the Board for appellant’s attorney. Nonetheless, appellant failed to initiate any action with respect to his examination results until 1981 based on his erroneous belief that Florida might enact a reciprocity statute whereby appellant could be licensed without taking an examination. Furthermore, the Executive Director of the Board of Dentistry testified that he was not told that appellant was bringing suit, nor that he should save any of appellant’s records, when appellant’s attorney requested appellant’s records in 1979. Pursuant to Florida Statutes Chapter 466, the Board of Dentistry (Board) destroys examination records every two years. Accordingly, the 1976 examination records likely had been destroyed by the time appellant’s attorney requested appellant’s records in 1979.

At the hearing held in 1982, appellant attempted to reconstruct all the pertinent records relating to his 1976 dental examination. Appellant even presented the testimony of the patient he actually worked on at the 1976 examination and pre- and post-examination x-rays of this patient’s teeth. However, appellant was unable to produce the actual grade sheets used by his examiners in 1976. These grade sheets generally contain check marks or comments which explain the grade given by the particular examiners.

In lieu of his grade sheets, appellant presented the testimony of an expert witness, Dr. Souviron. Dr. Souviron testified as to what grades he would have given appellant at the 1976 exam based on an examination of appellant’s patient for the 1976 exam and this patient’s above-mentioned x-rays. In rebuttal to Dr. Souvi-ron’s testimony, the Board presented the testimonies of Drs. Dannahower and Bliss, Board members and former examiners. Drs. Dannahower and Bliss did not testify as to what grades they believed appellant should have received at the 1976 examination. Rather, they testified that errors in a tooth could not be determined solely from an examination of x-rays and the candidate’s patient, and that many errors could only be determined at the time of the examination. Moreover, Dr. Dannahower testified that it would be next to impossible to say why a particular grade was given to a candidate, if he had to go back to a 1976 examination and did not have the candidate’s grade sheets for reference.

In the order adopted by the Board, the hearing officer accepted the testimonies of Drs. Dannahower and Bliss and found that without the grade sheets to indicate the criteria missed by appellant, it was not possible to determine why a particular grade was given on the procedures challenged by appellant. The hearing officer further found that appellant’s failure to timely file an appropriate challenge resulted in the Board’s proper destruction of appellant’s examination results which, in turn, effectively deprived the Board of an opportunity to adequately defend appellant’s challenge. Accordingly, the hearing officer held that the doctrine of laches and/or equitable estoppel barred appellant from challenging his 1976 examinations results. We find no error in the hearing officer’s order.

The elements of laches are set forth in Van Meter v. Kelsey, 91 So.2d 327 (Fla. 1956), the leading Florida case pertaining to this affirmative defense. The first element of laches is that there must be conduct on the part of the defendant, or on the part of one under whom he claims, giving rise to the situation of which complaint is made. The conduct in this case is the Board giving appellant a failing grade on his 1976 examination.

The second element of laches is that plaintiff, having had knowledge or notice of the defendant’s conduct, and having been afforded the opportunity to institute suit, is guilty of not asserting his rights by suit. Here, appellant received his 1976 examination results approximately six weeks after the examination had been administered, yet failed to request an administrative hearing until 1981 — five years after he had taken the 1976 examination and three years after the 1976 examination records likely had been destroyed. Under these facts, we find this element of laches present.

The third element of laches is lack of knowledge on the part of the defendant that plaintiff will assert the right on which he bases his suit. The earliest that the Board might have had an inkling that up-pellant would request an administrative hearing in connection with his 1976 examination was in 1979 when appellant’s attorney requested the production of appellant’s examination records. However, this request was made one year subsequent to the Board’s practice, as authorized by section 466.14(2), Florida Statutes, of destroying examination records every two years. Furthermore, the Board was not informed in 1979 that appellant would request an administrative hearing, nor was the Board requested to preserve from destruction any of appellant’s records. No formal request for an administrative hearing was made by appellant until five years subsequent to the 1976 examination. Again, based on these facts, we likewise find this element of lach-es present.

Finally, the fourth element of laches, and the most critical element as pertains to this case, is injury or prejudice to the defendant in the event relief is accorded to the plaintiff, or in the event the suit is held not to be barred. We find that the testimonies of Drs. Dannahower and Bliss to the effect that the Board could not verify the criteria missed by appellant without appellant’s grade sheets constitutes competent, substantial evidence, which evidence accords with logic and reason, upon which the hearing officer could properly find that this element was met. Accordingly, we find and hold that the four elements of laches are present under the facts of this case.

In support of his argument that the hearing officer’s order is error, appellant also argues that the doctrine of laches is not properly invoked in an administrative proceeding. Appellant cites this court’s recent decision in Farzad v. Department of Professional Regulation, Florida Board of Medical Examiners, 443 So.2d 373 (Fla. 1st DCA 1983), in support of his position. In Farzad, this court held that the doctrine of laches does not apply to license revocation proceedings. However, the policy behind not invoking the doctrine of laches in license revocation proceedings, in fact, supports applying laches to the present case. This policy is, as pertains to license revocation proceedings, that laches should not be a defense to proceedings conducted by the sovereign to protect the public. See Annot., 63 A.L.R.2d 1080 (1959). Similarly, the sovereign, through its administrative agencies, should not be prevented from invoking the affirmative defense of laches, in the interest of protecting the public from unqualified persons practicing their profession, where failure to apply laches would effectively deprive an administrative agency of its most effective evidence to rebut an applicant’s argument. Accordingly, we find and hold that the doctrine of laches was properly applied to the proceeding below. See generally, 2 Am. Jur.2d Administrative Law § 321 (as to laches in administrative proceedings).

The order on appeal therefore is AFFIRMED.

BOOTH and JOANOS, JJ., concur.

      . Specifically, section 466.14(2), Florida Statutes (1975) and (1977), provides:
      (2) All examination papers shall be filed with the secretary-treasurer of the board and kept for reference and inspection for a period of not less than 2 years. Examination papers while so retained shall be open to inspection only to board members and the executive director, the applicant himself, or by some person properly appointed by such applicant to examine same or pursuant to an order of a court of competent jurisdiction in a proceeding where the question of the contents of any such paper or papers is involved. The said board shall make a record of the examination grade of each applicant which shall be preserved for the 2-year period as part of his examination paper.
      Chapter 466, of the current Florida Statutes does not contain this provision.


text:
    William R. BOONE, JR., Appellant, v. STATE of Florida, Appellee.
    No. AV-60.
    District Court of Appeal of Florida, First District.
    June 15, 1984.
    Rehearing Denied July 16, 1984.

      Glenna Joyce Reeves, Asst. Public Defender, Tallahassee, for appellant.
    Jim Smith, Atty. Gen., Lawrence A. Ka-den, Asst. Atty. Gen., Tallahassee, for ap-pellee.
   SHIVERS, Judge.

Boone appeals his conviction and sentence for sale of marijuana. Appellant contends that the trial court erred in not requiring the State to disclose the identity of a confidential informant who was a material witness in the case. We agree, reverse and remand.

Prior to trial, appellant filed a motion to have the State disclose the identity of an alleged confidential informant. At the hearing on the motion, Detective McCallum testified that on February 14, 1978, he and the confidential informant drove to the residence of Ronnie Bowden. Officer McCal-lum remained in his vehicle while the confidential informant got out and talked to Bowden. From his car, Officer McCallum could see Bowden and the informer but could not hear them. The informer returned and told McCallum that Bowden had said that marijuana could be obtained down the road at a trailer next to a motel.

McCallum further testified that he and the informer went to the described trailer, parked, and walked to the door. The informer knocked on the door, and appellant answered the door. The informer then told appellant that Ronnie Bowden had sent them to “get a bag.” Appellant then went back into the trailer and returned with a bag of marijuana. Detective McCallum took the bag and handed appellant $25. Detective McCallum did not arrest appellant on the date of this alleged purchase, but did so on March 30, 1978.

Ronnie Bowden testified at the motion hearing that he never had a conversation on February 14, 1978, or any time, about sending someone to appellant’s house to buy marijuana. He stated that the first time he saw Detective McCallum was on March 29, 1978, at appellant’s house. On that date Detective McCallum asked appellant to sell him a bag of marijuana but appellant refused.

The trial court denied appellant’s motion to compel disclosure of the confidential informant. At trial, Detective McCallum and Ronnie Bowden repeated their testimony. Detective Spicer testified that he conducted surveillance of the activities on February 14, 1978. Detective Spicer’s testimony basically corroborated that of Detective McCallum. Detective Spicer, however, could not see who it was that the informer and Detective McCallum were talking to in front of the trailer. Appellant testified in his own behalf at trial and, like Bowden, stated that the first time he saw Detective McCallum was on March 29. Appellant denied that he sold Detective McCallum marijuana on February 14, or any other time.

During the trial, defense counsel attempted to cross-examine Detective McCal-lum as to the identity of the informer, but the State’s objection to this attempt was sustained. Appellant was convicted and moved for a new trial on the ground, inter alia, that the court erred in denying the defendant’s motion to compel disclosure. The motion was denied.

In Roviaro v. United States, 353 U.S. 53, 77 S.Ct. 623, 1 L.Ed.2d 639 (1957), Roviaro was accused of selling heroin to “John Doe.” Four law enforcement officers, Durham, Fields, Bryson, and Sims, met with John Doe and searched his automobile finding no narcotics. Bryson secreted himself in the trunk of Doe’s car while Durham, Fields and Sims attempted to maintain surveillance of Doe’s car. Roviaro entered Doe’s car and the two proceeded to a location. Durham observed Roviaro retrieve a small package from a nearby tree, return to Doe’s vehicle, and make a motion as if depositing the package in the car. Durham recovered a package which contained three glassine envelopes containing heroin from the floor of Doe’s ear. From his position in the trunk of Doe’s car, Bry-son had heard the conversations between Roviaro and Doe, which included Roviaro’s statement that he had brought “three pieces this time.” Bryson also observed Roviaro retrieve the package and return to the car and heard him state “Here it is.”

The Roviaro Court discussed the government’s privilege to withhold from disclosure the identity of persons who furnish information to law enforcement officers. The purpose of this privilege is the furtherance and protection of the public interest in effective law enforcement. One limitation on this privilege, however, arises from fundamental requirements of fairness. “Where the disclosure of an informer’s identity, or the contents of his communication, is relevant and helpful to the defense of an accused, or is essential to a fair determination of a cause, the privilege must give way.” 353 U.S. at 60-61, 77 S.Ct. at 628 (footnote omitted). The Court also stated:

We believe that no fixed rule with respect to disclosure is justifiable. The problem is one that calls for balancing the public interest in protecting the flow of information against the individual’s right to prepare his defense. Whether a proper balance renders nondisclosure erroneous must depend on the particular circumstances of each case, taking into consideration the crime charged, the possible defenses, the possible significance of the informer’s testimony, and other relevant factors.

Id. at 62, 77 S.Ct. at 628. The Court held that disclosure should have been ordered because, under the facts of that case, John Doe’s possible testimony was highly relevant and might have been helpful to the defense.

In Treverrow v. State, 194 So.2d 250 (Fla.1967), the court cited Roviaro and discussed additional factors to be considered in determining whether disclosure is required.

Some of the factors are whether it was necessary for the prosecution to refer to the informer in the presentation of the case, or whether the informer’s existence was first brought out on cross-examination by the defendant; whether the informer was an ‘active participant’ in the offense with which the defendant is charged or is a ‘mere informer’ who supplies a ‘lead’; whether the accused admits or does not deny guilt; and whether there is independent evidence of the accused’s guilt.

194 So.2d at 252.

Applying the Treverrow factors to the instant case favors disclosure. First, it was necessary for the prosecutor to refer to the confidential informant during the presentation of the State’s case-in-chief. In fact, testimony concerning the confidential informant permeated the State’s case. Second, the confidential informant here was an active participant in the offense as opposed to an informer who merely supplies a lead or tip. Third, the accused denied his guilt. Additionally, appellant in the instant case had a witness who partially corroborated his exculpatory testimony. Fourth, the only evidence of the accused’s guilt was in the form of one witness, Detective McCallum.

The instant case appears most similar to Woods v. State, 355 So.2d 437 (Fla. 4th DCA 1978). Although the facts of Woods are not recited in detail, the informer in that case was present to some extent during the criminal transaction, the appellant’s defense was misidentification and alibi, and the only evidence against appellant was the testimony of one police officer. The court in Woods held that the testimony of the informer could have been very helpful to appellant’s case and reversed and remanded. Accord, Coby v. State, 397 So.2d 974 (Fla. 3d DCA), rev. denied, 407 So.2d 1105 (Fla. 1981); Riggins v. State, 374 So.2d 1126 (Fla. 1st DCA 1979); Ricketts v. State, 305 So.2d 296 (Fla. 4th DCA 1974).

Hawkins v. State, 312 So.2d 229 (Fla. 1st DCA 1975), cited by the trial court in the order denying appellant’s motion to disclose, is distinguishable. In Hawkins, the motion to disclose was untimely and failed to refer to an'existing or proposed defense to which the informer’s testimony was relevant or material. Further, the State did not refer to the informer during the trial, and the defendant produced no testimony to rebut the State’s case.

Appellee contends, however, that in the instant case appellant did not adequately show the relevance of the informer’s testimony to his defense. We find that the informer’s testimony would have been highly relevant to appellant’s defense that the criminal transaction never took place. As one of only three witnesses to the alleged criminal transaction, the informer would presumably corroborate either appellant’s testimony or Detective McCallum’s. As the Court stated in Roviaro, “The informer was the only witness in a position to amplify or contradict the testimony of government witnesses.” 353 U.S. at 64, 77 S.Ct. at 630.

Appellee also contends that the informer’s testimony could not be material. We do not agree with appellee’s concept of materiality. Appellee seeks to place on appellant the burden to prove that the informer’s testimony actually would corroborate appellant’s testimony. To hold thus would place upon appellant the impossible burden of proving what a witness will say without even knowing the identity of the witness. We do not read McCants v. State, 363 So.2d 362 (Fla. 1st DCA 1978), cert. denied, 372 So.2d 469 (Fla.1979), to stand for. such a proposition. Unlike McCants, where the defendant never indicated a line of defense to which the informer’s testimony would be material, appellant here made clear at the hearing on the motion to disclose that his defense was that the transaction never occurred and that McCallum was lying. The instant case involves more than the mere possibility that the informer’s testimony might have helped the defense or affected the outcome of the trial. There exists here a strong probability that the informant’s testimony could have affected the outcome of the trial. Therefore, it is material.

We find that under the circumstances of this case justice and fundamental requirements of fairness mandate disclosure or, at least, an in-camera hearing by the trial court to determine whether the informer’s testimony might be helpful to the defense. Appellant concedes that there will be no need for a new trial if the confidential informant is available and his or her testimony is inculpatory. We think it proper, therefore, to remand for an in-camera hearing. United States v. Freund, 525 F.2d 873, after remand, 532 F.2d 501 (5th Cir.), cert. denied, 426 U.S. 923, 96 S.Ct. 2631, 49 L.Ed.2d 377 (1976); See Coby v. State and Riggins v. State, supra. See also State v. Acosta, 439 So.2d 1024 (Fla. 3d DCA 1983); Mingle v. State, 429 So.2d 850 (Fla. 4th DCA 1983). If the trial court finds that the informer’s testimony might be helpful to the defense, a new trial is required.

REVERSED and REMANDED for proceedings not inconsistent with this opinion.

JOANOS and BARFIELD, JJ., concur.

      . See Fla.R.Crim.P. 3.220(c)(2) and (i).


author: ZEHMER, Judge.

text:
    ALRO METALS and Home Indemnity Company, Appellants, v. Charles PULLINS, Appellee.
    No. AW-256.
    District Court of Appeal of Florida, First District.
    June 15, 1984.
    Anthony J. Beisler, III, Fort Lauderdale, for appellants.
    Emil Jaczynski, Fort Lauderdale, for ap-pellee.
   ZEHMER, Judge.

The employer and carrier appeal the deputy commissioner’s order awarding wage-loss benefits from December 1, 1980, to September 1, 1981. With the single exception noted below, we find the order is supported by competent and substantial evidence.

The order allows wage-loss benefits commencing December 1, 1980. The claim alleged benefits were due commencing December 14. The undisputed evidence shows that claimant was employed until December 18. The order is hereby modified to commence benefits on December 18. Ordinarily, we would not correct this discrepancy on appeal because it could have, and indeed should have, been brought to the attention of the deputy within the thirty-day statutory period before becoming final. E.g., Juma Construction v. Villaneuva, 437 So.2d 715 (Fla. 1st DCA 1983); Sunland Hospital v. Garrett, 415 So.2d 783 (Fla. 1st DCA 1982); § 440.25(4)(a), Fla.Stat. (1981). We do so only because claimant concedes this error.

The only error demonstrated by appellants should have been presented to the deputy for correction. The other contentions of appellants are so lacking in merit as to render this appeal frivolous. A fee in the amount of $2,000 is allowed for the services of claimant’s attorney.

The appealed order, as modified, is AFFIRMED.

SMITH and JOANOS, JJ., concur.


author: SMITH, Judge.

text:
    WOODHOLLY ASSOCIATES, Appellant, v. DEPARTMENT OF NATURAL RESOURCES and City of Hollywood, Florida, Appellees.
    No. AX-393.
    District Court of Appeal of Florida, First District.
    June 15, 1984.
    Donald J. Doody of Josias & Goren, Fort Lauderdale, for appellant.

      Andrew DeGraffenreidt, III, City Atty. and Leonard Lubart, Deputy City Atty., Hollywood, for appellees.
   SMITH, Judge.

Woodholly Associates, Inc. (Woodholly) petitioned for and received a formal administrative hearing for the purpose of contesting the City of Hollywood’s (City) application for a permit under Chapter 161, Florida Statutes, for construction of certain improvements seaward of the coastal construction control or setback line. The hearing officer, after a two-day hearing, entered a recommended order that the permit be granted, and the Governor and Cabinet, sitting as the agency head for the Department of Natural Resources, approved the recommended order. We affirm.

The proposed project (Dunewalk Phase I) called for certain improvements to be constructed seaward of the coastal construction control line or setback line, on property of the City, consisting of an extension of existing Surf Road, an extension of an existing asphalt broadwalk, construction of a parking area with landscaped island, swa-les and associated lighting. Phase II, which has already been permitted by the Department and is not involved in this proceeding, calls for the construction of sand dunes between the parking area and the Atlantic Ocean. Woodholly is the builder and developer of a condominium development known as Summit Condominium, which is located directly landward, adjacent and contiguous to the site of the proposed development. Woodholly’s petition for hearing essentially set forth its concerns that the City’s proposed construction and the project itself would jeopardize the stability of the existing beach dune system, that it would accelerate erosion, provide inadequate protection to the upland structures, and would endanger the adjacent property on which Summit Condominium is located. All of the extensive testimony and evidence presented at the hearing, some of it conflicting, was addressed to these concerns specifically raised by the petition and included in the outline of issues contained in the pretrial stipulation filed by the parties. The hearing officer’s resolution of these factual issues adverse to Woodholly is not the subject of this appeal.

The sole issue presented by Woodholly is whether the City carried its burden of proving the necessity or justification for the development in accordance with Rule 16B-33.05(1), Florida Administrative Code, which provides:

(1) A coastal construction control line (Section 161.053) is intended to define that portion of the beach and dune system which is subject to severe fluctuations based on a one-hundred-year storm surge or other predictable weather conditions. The control and setback lines call attention to the special hazards and impact associated with the use of such property. Establishment of a coastal construction control line or the 50-foot setback requirement (Section 161.052) does not preclude all development of or alteration of coastal property seaward of such lines. However,- activities seaward of a coastal construction control line or 50-foot setback shall be limited and the necessity of such development, construction or alteration shall be stated and clearly justified by the applicant.

We find from examination of the record that the City’s application complied with the requirement of this rule by stating:

Permit approval is requested at this time for DUNEWALK — PHASE ONE only. The project, when completed in its entirety, will provide public access to Hollywood’s Beachfront and handicap access via a dune crossover structure designed for that purpose. It will provide uninterrupted travel along Surf Road, and extend pedestrian access southward by extending the existing asphalt broadwalk. It will reconstruct, revitalize, and create an aesthetically pleasing beach area.

The hearing officer’s specific finding that the City’s application was “complete” is correct.

Nevertheless, Woodholly contends that it was incumbent upon the City to present evidence at the hearing to show necessity and justification for the project beyond the mere formality of introducing the application itself into evidence. On the state of the record before us, we find that this contention has no merit. Woodholly’s petition for a formal hearing does not challenge the completeness of the City’s application, nor does it contest the adequacy of the City’s explanation of necessity and justification for the project, either as a matter of fact or as a matter of law. Neither does the prehearing stipulation filed by the parties set forth any issue to be heard and determined with respect to the necessity or justification for the project.

As pointed out by this court in Florida Department of Transportation v. J.W.C., Inc., 396 So.2d 778 (Fla. 1st DCA 1981), although the applicant for a permit has the burden of proof in hearings where the application is contested, the petitioner challenging the issuance of the permit “must identify the areas of controversy and allege a factual basis for the contention that the facts relied upon by the applicant fall short of carrying the ... burden cast upon the applicant.” Id. at 789. Thus, Woodholly simply failed to make an issue, for resolution by the hearing officer, of the matter of which it now complains.

Further, at the hearing, the City submitted as evidence its application and supporting documentation, including the Department’s certification of completeness, without objection by Woodholly. In addition, the Department’s witness, Ralph Clark, Bureau Chief of the Bureau of Coastal Engineering and Regulation, Division of Beaches and Shores, was asked on cross-examination whether the application was complete, to which he responded: “Yes sir, I do believe in my opinion the application is complete.” No further reference was made to the completeness or incompleteness of the application. It is apparent that the City satisfied the requirements of a “prima facie case,” as discussed in J. W. C. Company, Inc., 396 So.2d at 788, 789. Woodholly’s brief contains no record reference to any evidence presented during the two-day hearing in opposition to the City’s claim of necessity and justification, nor does it point to any portion of the record raising the issue during the hearing. We have not overlooked Woodholly’s proposed order which was submitted to the hearing officer after the hearing. This proposed order did refer to an absence of proof of necessity or justification, and contained a proposed finding that necessity or justification had not been shown by the City. However, it was too late for Woodholly by this means to inject into the proceeding a new issue which was not raised in the pleadings or the pretrial stipulation of issues to be tried, and as to which Woodholly presented no evidence to contradict the prima facie showing made by the City. Woodholly has not urged in this proceeding, nor would we agree if it did, that the inadequacy of the City’s stated necessity or justification for the project is determinable on this record simply as a matter of law.

For the above reasons, the order appealed from must be and is hereby, AFFIRMED.

JO ANOS and ZEHMER, JJ., concur.


text:
    Jack D. PELHAM, Petitioner, v. SCHOOL BOARD OF WAKULLA COUNTY, Florida, Respondent.
    No. AX-442.
    District Court of Appeal of Florida, First District.
    June 15, 1984.

      David A. Barrett and Alfred Craig Pen-son, Barrett & Bajoczky, Tallahassee, for petitioner.
    Silas R. Eubanks, Tallahassee, for respondent.
   PER CURIAM.

Upon consideration of the petition for writ of prohibition and the response thereto, we find that petitioner has shown a “well-grounded fear that he will not receive a fair [hearing] at the hands of the [respondent agency.]” Sikes v. Seaboard Coastline RR Co., 429 So.2d 1216, 1224 (Fla. 1st DCA 1983). The petition for writ of prohibition is therefore granted, and the members set forth in the petition are disqualified from participating in the hearing on the amended recommended order entered below on October 12, 1983. Within 10 days of the date of the order entered herein April 5, 1984, respondent shall make application to the Governor, pursuant to Section 120.71, Florida Statutes (1983), for appointment of a sufficient number of persons to respondent school board so that a quorum will be present at the hearing on the recommended order, such hearing to be set within 30 days of the date of that appointment.

MILLS, SMITH and NIMMONS, JJ., concur.

      . This writ was granted by order of April 5, 1984. This opinion follows.


author: PER CURIAM. BASKIN, Judge

text:
    Mitchell WOLFSON, Jr., Louis Wolfson, III, Sylvan Myers, Arthur H. Hertz and Stanley L. Stern, Personal Representatives of the Estate of Mitchell Wolfson, deceased, Appellants, v. The INSURANCE COMPANY OF FLORIDA and Central National Insurance Company of Omaha, Appellees.
    No. 83-1407.
    District Court of Appeal of Florida, Third District.
    June 19, 1984.

      Starr W. Horton, Miami, for appellants.
    Beckham & McAliley and James S. Robertson, Miami, Raggio, Jaffee, Kayser & Hunting and Laurie R. Rockett and Leo Kayser, III, New York City, for appellees.
    Before HUBBART, BASKIN and JOR-GENSON, JJ.
   PER CURIAM.

The final judgment under review is reversed and the cause is remanded to the trial court for a new trial upon a holding that: (1) the trial court abused its discretion in allowing the defendant insurers herein to call at trial two material witnesses not listed in their pre-trial catalog because: (a) the trial court’s pre-trial order required both parties to exchange the names and addresses of all material witnesses, except impeachment witnesses, whom the parties expected to-call at trial, (b) the aforesaid witnesses omitted from the insurers’ pre-trial catalog were substantive, not impeachment witnesses, called by the defendant insurers on the central issue tried below, to wit: whether the said insurers were prejudiced by the plaintiff-insured’s late notice concerning the illness of the insured horse, (c) based on this record, the plaintiff-insured was surprised and prejudiced when these witnesses were called at trial in violation of the trial court’s pre-trial order, Binger v. King Pest Control, 401 So.2d 1310 (Fla.1981); (2) the trial court’s error in allowing the above two material witnesses to testify cannot be considered a harmless error inasmuch as their testimony was relevant to what we consider a legitimate issue under Florida law concerning whether the insurers were prejudiced by the late notice herein, Tiedtke ¶. Fidelity & Casualty Co. of New York, 222 So.2d 206 (Fla.1969); (3) the plaintiff insured on this record was not entitled to a summary judgment on the above-stated central issue concerning the prejudice issue and the trial court committed no error in denying his motion for summary judgment herein.

We are unaware of any Florida cases which limit the effect of the Tiedtke decision in the manner suggested by the dissent; moreover, we see nothing in the Tiedtke decision itself which supports such a proposed limitation. If, in fact, the defendant insurers have not been prejudiced by the insured’s failure to comply with the notice of injury or damage provisions of an insurance policy, Tiedtke plainly holds that the said insurers should not be relieved of all liability under the policy. The fact that the notice in question is required to be made before, rather than after, the loss in question is suffered should make no difference, as in either event the defendant insurers have not been prejudiced in any way. We are further persuaded that even if this proposed limitation be valid, it should be for the Florida Supreme Court, rather than this court, to adopt such a limitation. Hoffman v. Jones, 280 So.2d 431 (Fla.1973).

As an aside, we are not impressed with the argument that the result we reach in this case will have any adverse impact on insurance rates in Florida. No such showing has been made in the record or briefs in this case, and indeed, the issue has not even been argued by any of the parties herein. We also note the defendant insurers have filed no cross-appeal contending that they were entitled to summary judgment in this case, and make no argument with respect to the exclusion of witnesses issue that the error herein was harmless because they were entitled to a summary judgment in their favor.

Reversed and remanded for a new trial.

BASKIN, Judge

(dissenting).

I respectfully dissent from the majority opinion which overturns a jury verdict in favor of the insurance company and remands for a new trial to afford appellant an opportunity to demonstrate the absence of prejudice to the insurer.

The parties agree that Wolfson intentionally failed to furnish the notice required by the insurance contract:

1. NOTICE OF SICKNESS OR INJURY:

In the event of any illness, disease, lameness, injury, accident or physical disability whatsoever of or to an insured animal the Assured shall immediately at his own expense employ a qualified Veterinary Surgeon, to give proper care and to use every possible means to save the life of the animal and THE ASSURED SHALL IMMEDIATELY GIVE NOTICE. (PLEASE REFER TO CLAIM INFORMATION CARD ATTACHED TO THIS POLICY FOR SPECIFIC INSTRUCTIONS) TO THE COMPANY (WHO WILL INSTRUCT A VETERINARY SURGEON TO EXAMINE THE ANIMAL IF DEEMED NECESSARY) AND ANY FAILURE BY THE ASSURED TO DO SO SHALL RENDER THE ASSURED’S CLAIM NULL AND VOID AND RELEASE THE COMPANY FROM ALL LIABILITY IN CONNECTION THEREWITH, WHETHER THE ASSURED HAS PERSONAL KNOWLEDGE OF SUCH EVENTS OR SUCH KNOWLEDGE IS CONFINED TO THE REPRESENTATIVES OF THE ASSURED OR OTHER PERSONS WHO HAVE CARE, CUSTODY AND CONTROL OF THE ANIMAL(S).

The decision in Tiedtke v. Fidelity & Casualty Co. of New York, 222 So.2d 206 (Fla.1969), relied on by the majority, concerned the failure of the insured to give timely notice of an accident. Tiedtke presented a situation significantly different from the facts before us. Other cases in Florida agree that a showing of prejudice is necessary when the event rendering the insurer liable has already taken place. Holinda v. Title and Trust Co. of Florida, 438 So.2d 56 (Fla. 5th DCA 1983); Ideal Mutual Insurance Co. v. Waldrep, 400 So.2d 782 (Fla. 3d DCA 1981). In those circumstances, the insurer is unable to prevent the occurrence resulting in the loss. On the other hand, in this case, the notice requirement in the contract, a livestock mortality policy, permits the insurer to prevent the loss and claim by allowing the insurer to employ its own veterinary assistance. In accordance with this position, a Texas statute requiring a showing of prejudice when the insurer asserts a defense of lack of notice was held inapplicable to a notice of illness clause in a livestock mortality insurance policy. In Circle 4 Stables, Inc. v. National Surety Corp., 451 S.W.2d 564 (Tex.Civ.App.1970), the court stated:

The notice provision obviously is for the benefit of the insurer in that the company may have the opportunity of securing its own chosen veterinarian to attend the animal.

Other jurisdictions have enforced the notice requirements of livestock mortality insurance contract. Hough v. Kaskaskia Live Stock Ins. Co., 230 Ill.App. 341 (1923); Hartford Live Stock Ins. Co. v. Henning, 206 Ky. 9, 266 S.W. 912 (1924); Menard v. Citizen Ins. Co. of N.J., 184 So.2d 85 (La. App.1966); Patti v. Monarch Ins. Co. of Ohio, 92 Misc.2d 888, 401 N.Y.S.2d 682 (N.Y.Sup.Ct.1977). Contra Hood v. Fireman’s Fund Ins. Co., 412 F.Supp. 846 (S.D.Miss.1976).

In my view, this court should decline to extend the rule of Tiedtke to livestock mortality policies. It takes little imagination to speculate on the effect on insurance rates for Florida horsemen if this rule is implemented. Apart from the increased loss to insurance companies unable to mitigate damages, the threat that every insurance claim will be subject to litigation to determine the existence of prejudice will probably escalate rates for livestock mortality insurance in Florida. The burden of notifying the insurer, either by phone call or letter, is minimal.

This court rendered inconsequential the failure to comply with insurance agreements, and its opinion may spell disaster for Florida's efforts to entice the breeding industry to locate in this state. If Florida is to compete with other states, it is important that these contracts be construed in the same manner as in other breeding states. For these reasons, I conclude that the insurer was entitled to summary judgment on the merits. I therefore would not reach the issue of failure to disclose impeachment witnesses. Even if that testimony is deemed substantive, the question of failure to disclose the names of the witnesses does not arise when summary judgment is granted in favor of the insurer.


text:
    Max HOCHMAN, Joseph Gordon, Edna Wiesser and Sam Lindinaur, Tall Trees Condominium, Appellants, v. Jack DUTCH, Appellee.
    No. 83-1507.
    District Court of Appeal of Florida, Third District.
    June 19, 1984.
    Leff, Pesetsky & Zack and Dean A. Mitchell, Joseph C. Segor, Miami, for appellants.
    Hyman & Kaplan and Michael Hyman, Miami, for appellee.
    Before SCHWARTZ, C.J., and BARK-DULL and DANIEL S. PEARSON, JJ.
   PER CURIAM.

Affirmed. Sec. 718.303(1), Fla.Stat. (1983); Kirou v. Oceanside Plaza Condominium Association, Inc., 425 So.2d 650 (Fla. 3d DCA 1983).


author: DANIEL S. PEARSON, Judge.

text:
    Dolores DeLUCIA, Appellant, v. METROPOLITAN DADE COUNTY, a political subdivision of the State of Florida, Appellee.
    No. 83-1582.
    District Court of Appeal of Florida, Third District.
    June 19, 1984.

      Horton, Perse & Ginsberg and Arnold R. Ginsberg; Friedman & Lipcon and Mitchell J. Lipcon, Miami, for appellant.
    Robert A. Ginsburg, County Atty., and John E. Finney, Asst. County Atty., for appellee.
    Before SCHWARTZ, C.J., and BARK-DULL and DANIEL S. PEARSON, JJ.
   DANIEL S. PEARSON, Judge.

The appellant, Dolores DeLucia, sued Metropolitan Dade County for damages incurred when she was assaulted by a fellow passenger on a bus owned and operated by the County. The trial court entered summary judgment in favor of the County, and DeLucia appeals. We reverse.

The law by which we are guided in determining the liability of a carrier, here the County, to a passenger assaulted by a fellow passenger is set forth in Hall v. Seaboard Air Line Ry. Co., 84 Fla. 9, 93 So. 151 (1921).

“The rule ... is in substance, that the carrier is held to the highest degree of care, vigilance, and precaution in making arrangements to guard against all dangers from whatever source arising which may naturally and according to the usual course of things be expected to occur.
“The uniform and salutary rule adopted by the American courts is that the conductor or person in charge of a [carrier] is invested with all the powers of a peace officer to protect passengers from assault by fellow passengers or by strangers; he must exercise such powers earnestly and faithfully, and if he fails in this duty and one passenger is assaulted by another, the conductor is guilty of negligence and the company must answer for the injury inflicted.
“The liability of the carrier in such case rests, not upon the tort of the passenger, but upon the negligent omission of the carrier through its servants to prevent the tort being committed. A failure to do anything which could have been done by the servant to prevent the injury renders the carrier liable. But to do something to prevent an injury resulting from an assault by a fellow passenger implies knowledge on the part of the servant that the act is contemplated by the stranger, or by due diligence the servant could have obtained such knowledge, or had the opportunity to acquire it sufficiently long in advance of its infliction to have prevented it with the force at his command.
“It is the failure of the carrier through its agents to afford the required protection, after they had reasonable grounds for believing that violence or the insult was imminent, upon which the liability of the carrier rests_” 84 Fla. at 25-26, 93 So. at 156-57 (citations omitted).

In the present case, the County has not conclusively shown, as it is required to do to be entitled to summary judgment, that its agent, the bus driver, had no reasonable ground for believing that the assault upon DeLucia was imminent. The record reveals that DeLucia was proceeding down the aisle of the bus towards the front exit door when she apparently stepped on the fellow passenger’s foot. The fellow passenger did not take this perceived insult lightly and began directing “profanities and street talk” at DeLucia. DeLucia apologized to no avail. Then, according to her deposition:

“A. I was standing at the top of the steps, ready to depart the bus. I had apologized. , He was still brushing himself off and using profanity. I was about to step down the first step. As he was carrying on, I said, T am really sorry. I didn’t mean to brush your feet. They were in the middle of the aisle.'
“And as I started to depart, he spit in my face. At that moment, I stopped. I put my hand to my face, and backed up right next to the cash box.
“Q. In other words, you came up off the step back towards—
“A. My left foot never made it down. I simply put the other one back up and backed up.
“Q. What next happened?
“A. He was still carrying on and talking to the bus driver, and saying, ‘She’s stepping all over me, messing me up.’
“He was spitting at me, calling me things. I looked at the bus driver. I said, ‘He spit at me.
“The bus driver said, ‘Yes, I know, I saw him. ’
“I just stood there observing him. He was very, very angry. By this time he was absolutely belligerent. He stood up, still talking, and the next thing I know he had punched my face.” (R. 172-73) (emphasis supplied).

A fact-finder could conclude from the foregoing testimony that the bus driver was apprised that an assault and battery by the fellow passenger had occurred, see W. LaFave and A. Scott, Criminal Law § 81 at 604 n. 3 (1972) (spitting as assault or battery); R. Perkins, Perkins on Criminal Law 108 (2d ed. 1969) (same); J. Miller, Handbook of Criminal Law § 98 at 304, § 101 at 312 (1934) (same), that the bus driver had reasonable ground to believe that an act of violence by the fellow passenger in one form or another would follow, and that the bus driver did not act to prevent such violence. Summary judgment for the County was thus improperly entered.

Alvarez v. Metropolitan Dade County, 378 So.2d 1317 (Fla.3d DCA 1980), upon which the County relies, lends no support to the County’s position. Indeed, the rule of law announced in Alvarez that “[t]he County would only be liable for the assault of one patron on another patron if the defendant knew that the particular assailant had dangerous propensities,” 378 So.2d at 1318 (emphasis in original), as the Alvarez case acknowledges, derives from Hall v. Seaboard Air Line Ry. Co., and requires the very result we reach. Here, unlike the defendant in Alvarez, there is evidence from which a fact-finder could conclude that the County, through its agent, was on notice that the fellow passenger who assaulted DeLucia had dangerous propensities.

Accordingly, the summary judgment in favor of the County is reversed and the cause remanded for further proceedings.

Reversed and remanded.


text:
    James T. GILLUM, Appellant, v. The STATE of Florida, Appellee.
    No. 83-2272.
    District Court of Appeal of Florida, Third District.
    June 19, 1984.
    Bennett H. Brummer, Public Defender, and McGhee & Sharpe, Sp. Asst. Public Defenders, for appellant.
    Jim Smith, Atty. Gen., and Renee E. Rus-ka, Asst. Atty. Gen., for appellee.
    Before HUBBART, BASKIN and FERGUSON, JJ.
   PER CURIAM.

Affirmed. Rawlings v. Kentucky, 448 U.S. 98, 100 S.Ct. 2556, 65 L.Ed.2d 633 (1980); Adams v. State, 295 So.2d 114 (Fla. 2d DCA), cert. denied, 305 So.2d 200 (Fla. 1974).


text:
    Flossie ROBERTS, Appellant, v. METROPOLITAN DADE COUNTY, d/b/a M.T.A., Appellee.
    No. 83-2388.
    District Court of Appeal of Florida, Third District.
    June 19, 1984.
    Murphy, Buschbom & Murphy, Coral Gables, for appellant.
    Robert A. Ginsberg, County Atty., and Edward Z. Shafer, Asst. County Atty., for appellee.
    Before SCHWARTZ, C.J., and BASKIN and JORGENSON, JJ.
   PER CURIAM.

Affirmed. See Porter v. State, 386 So.2d 1209 (Fla. 3d DCA 1980).


text:
    LAWNLITE COMPANY, a Delaware corporation, Appellant, v. AMERICAN RE-INSURANCE COMPANY, a foreign insurance corporation, Appellee.
    No. 83-2649.
    District Court of Appeal of Florida, Third District.
    June 19, 1984.
    Hauser & Metsch and Lawrence R. Metsch and Lydia A. Fernandez, Miami, for appellant.
    Fowler, White, Burnett, Hurley, Banick & Strickroot and Michael A. Mullen, Miami, for appellee.
    Before SCHWARTZ, C.J., and BARK-DULL and DANIEL S. PEARSON, JJ.
   PER CURIAM.

Affirmed. Jemco, Inc. v. United Parcel Service, Inc., 400 So.2d 499 (Fla. 3d DCA 1981), rev. den., 412 So.2d 466 (Fla. 1982).


text:
    Ruben MENA, Appellant, v. The STATE of Florida, Appellee.
    No. 83-2760.
    District Court of Appeal of Florida, Third District.
    June 19, 1984.
    Penzell & Diamond andfBarry Clyman, Miami, for appellant.
    Jim Smith, Atty. Gen. and Randi B. Klay-man, Asst. Atty. Gen., for appellee.
    Before HUBBART and FERGUSON, JJ. and PEARSON, TILLMAN (Ret.) Associate Judge.
   PER CURIAM.

We affirm the final judgments of conviction and sentences under review. The defendant has failed to demonstrate any reversible error in the three contentions he raises on appeal.

First, we are not persuaded that the trial court erred in denying the defendant’s pre-trial motion to suppress the defendant’s statements to the police. The thrust of the contention here appears to be that the police unlawfully entered the defendant’s home to arrest the defendant because the consent the police obtained from his live-in girlfriend to enter the premises was a coerced consent — thereby tainting (a) the arrest of the defendant effected in his home and (b) the statements of the defendant subsequently given to the police. Wong Sun v. United States, 371 U.S. 471, 83 S.Ct. 407, 9 L.Ed.2d 441 (1963). We cannot agree with this analysis inasmuch as the record indicates that the aforesaid consent was freely and voluntarily given to the police to enter the defendant’s premises. Schneckcloth v. Bustamonte, 412 U.S. 218, 93 S.Ct. 2041, 36 L.Ed.2d 854 (1973); Denehy v. State, 400 So.2d 1216 (Fla.1981); Plant v. State, 336 So.2d 437 (Fla. 1st DCA 1976).

Second, the trial court did not err in denying defense motions for a judgment of acquittal. The evidence of guilt in this case was more than sufficient to submit to the jury on the charges of first degree murder and attempted first degree murder. Buford v. State, 403 So.2d 943 (Fla.1981), cert. denied, 454 U.S. 1164, 102 S.Ct. 1039, 71 L.Ed.2d 320 (1982); Sireci v. State, 399 So.2d 964 (Fla.1981), cert. denied, 456 U.S. 984, 102 S.Ct. 2257, 72 L.Ed.2d 862 (1982); Tibbs v. State, 397 So.2d 1120, 1123 (Fla. 1981), aff'd, 457 U.S. 31, 102 S.Ct. 2211, 72 L.Ed.2d 652 (1982); Mead v. State, 438 So.2d 410 (Fla. 3d DCA 1983).

Third, no error was committed in denying a defense motion to continue the trial and to allow defense counsel to withdraw as counsel for the defendant. No valid grounds existed for these motions. The motions were untimely presented at the outset of trial and the entire matter was a transparent ploy by the defendant himself to avoid going to trial. See Fla.R. Crim.P. 3.190(g)(2), (3).

Affirmed.