author: ANSTEAD, Chief Judge.

text:
    Debra Sue RESTIVO, Appellant, v. ANDERSON & ANDERSON, P.A., etc., et al., Appellees. ANDERSON & ANDERSON, P.A., and Carol Anderson, Appellants, v. Debra Sue RESTIVO, Appellee.
    Nos. 81-2222, 82-1670.
    District Court of Appeal of Florida, Fourth District.
    July 25, 1984.
    Rehearing Denied Aug. 22, 1984.

      Robert D. Peltz of Rossman & Baumber-ger, P.A., Miami, for Debra Sue Restivo.
    D. Culver Smith III and James A. Farrell of Steel, Hector, Davis, Burns & Middleton, Palm Beach, for Anderson & Anderson, P.A. and Carol M. Anderson.
   ANSTEAD, Chief Judge.

These are consolidated appeals involving a dispute between lawyers and their client as to the disbursement of proceeds of a settlement of the client’s personal injury claim under the terms of a contingency fee agreement. Restivo claims error in the striking of her claim for conversion and the Andersons claim error in the entry of summary judgment against them on their claim for fees under the contingency fee agreement.

Upon review of appellant Restivo’s allegations we conclude that the trial court erred in striking her claim for conversion. We find that she stated a cause of action for conversion in alleging that her lawyers wrongfully withheld funds to which Resti-vo was lawfully entitled. Restivo alleged that the lawyers received the proceeds of a settlement and withheld all of the proceeds of the settlement while demanding that Restivo agree to the attorneys’ claim as how their fee was to be computed as a condition to releasing any of the funds. Restivo asserts that she was immediately entitled to at least that portion of the settlement proceeds that would be due her even if the attorneys’ claim was valid. We agree. We reject the attorneys’ claim that they were entitled to withhold all of the proceeds until their fee claim was resolved. For that reason we reverse and remand for further proceedings in Case No. 81-2222.

In Case No. 82-1670 we find no error by the trial court in granting a partial summary judgment for Restivo on her claim that the lawyers breached the contract of employment by withholding a sum for their fee based on a percentage of the court judgment rendered in the case rather than the settlement proceeds. In granting summary judgment the trial court construed the words “recovery” and “total recovery” in the contingency fee agreement to mean the amount of funds actually recovered by settlement, after a larger sum was awarded at trial and the case was settled to avoid the risks of further proceedings by motion or appeal. The attorneys contend that their fee should be predicated upon the amount of the court award rather than the actual settlement.

Both parties rely on the case of Forman v. Kennedy, 156 Fla. 219, 22 So.2d 890 (1945), wherein a recovery for a lawyer based upon a percentage of the court judgment rather than a subsequent settlement was affirmed. Although the specific language of the employment contract was not quoted, the following language from the trial court judgment was approved:

By the weight of authority, where an attorney is employed on a contigent fee consisting of a percentage of the amount recovered, the amount for which the case is settled is the basis on which the attorney’s percentage is to be computed, * *. There are, however, decisions to the effect that when an attorney contracts for a contingent fee to depend upon the result of the suit, and the client compromises such suit without the consent of the attorney, the latter will be entitled to recover the whole amount of the fee in like manner as if the contigency had transpired upon which the payment of the fee was made to depend. [Emphasis in original.]

22 So.2d at 890-91. We agree with the trial court’s holding that the contingency fee agreement involved herein, on its face, was not one providing “for a contingent fee to depend upon the result of the suit” and, accordingly, that the fee was not to be determined based upon the amount of the court judgment. Rather, we believe the agreement herein was for a “contingent fee consisting of a percentage of the amount recovered” and that, accordingly, the settlement was the amount upon which the fee was to be computed.

The fee anticipated in the agreement is to be computed and paid out of the proceeds of a recovery, i.e., an amount actually collected. The agreement expressly provides, no recovery — no fee. In our view, this can only mean no amount collected— no fee to be paid. Obviously the words “recovery” and “total recovery” when used in connection with a settlement before suit could only refer to an amount actually received. In addition, however, we believe such words when used in the eventuality of suit being filed also mean the same thing, i.e., actual recovery. Clearly there could be a settlement after suit is filed and any fee, while increasing in percentage, would still be based on the amount received. Even if there was a settlement after a verdict or judgment was rendered, it seems apparent that the parties intended that the fee would still be based on the amount actually recovered. For instance, if the attorneys agreed that there was a substantial chance that the judgment might be overturned by motion or appeal, they would no doubt concur in a settlement for a lesser amount. It would make little sense in such a situation for the attorneys to receive a fee based on a percentage of the verdict rather than their own recommended settlement. And, of course, if a judgment was secured and it had to be collected in whole or in part by levy or garnishment, the percentage fee would still be based upon the amount actually recovered. This interpretation gives a consistent and uniform meaning to the term recovery as it is used throughout the agreement while permitting the percentage of the recovery to increase the further the claim progresses through its legal stages.

The real problem with the agreement is the absence of any provisions dealing specifically with the situation that actually occurred, i.e., the settlement of the case for a lesser amount after a verdict was rendered. However, it is clear that there is no provision in the agreement limiting the client’s right to settle. Absent such a provision we believe the client, under the terms of the agreement here, had a right to settle, notwithstanding the fact that the settlement resulted in a lesser recovery for both the client and the attorney. Of course, if the agreement specifically provided for a fee based on the amount of a court award rather than the amount actually received then that provision would control. However, there is no language in the agreement that the fee is based “upon the result of the suit” i.e. the amount of the verdict or judgment recovered. Rather, the increasing percentages seemed to be pegged to the increasing work, responsibility and risk that occur as the claim progresses. This does not mean that the parties may not make provisions providing for a different basis for computing a fee. It only means that to do so the language used will have to be different from that provided here. This interpretation is consistent with public policy considerations recognizing the right of a litigant to control his case and to settle it if he so desires absent specific limitations in the employment agreement to the contrary. We also stress that this case involves no allegations by the attorneys of any bad faith in the settlement on the part of the clients to intentionally deprive the attorneys of a greater fee by settling for a lesser amount than the verdict recovered.

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

DOWNEY and DELL, JJ., concur.

      . RETAINER FOR LEGAL SERVICES
      I, the undersigned Client, do hereby retain and employ the law firm of Anderson & Anderson as my attorneys to represent me in my claim for damages against James David Campbell, or any other person, firm or corporation liable therefor, resulting from injuries sustained by me which arose from an accident which occurred on October 6, 1977, at State Road 823.

      I hereby agree to pay for the costs of investigation, and, should it become necessary to institute suit, I agree to pay all further costs incurred in connection with my case.
      As compensation for these services, I agree to pay my said attorneys from the proceeds of any recovery the following fee:
      33½% of the total recovery if settled without filing suit;
      of the total recovery in the event that suit is filed; 40%
      45% of the total recovery if an appeal is taken from the lower Court by either side, or if garnishment or any proceeding after judgment must be brought to collect the judgment or any portion thereof.
      I further authorize my attorneys to pay out of the proceeds of any recovery all unpaid hospital bills or medical bills for which I may be indebted as a result of the accident which is the subject matter of this Contract.
      It is agreed and understood that this employment is upon a contingent fee basis, and if no recovery is made I will not be indebted to my said attorneys for any sum whatsoever as Attorneys' Fees.
      DATED at Fort Lauderdale, Broward County, Florida, this_ day of-, 19-
      _(SEAL)
      Client


source: Caselaw Access Project

author: LETTS, Judge. LETTS, Judge,

license: Public Domain

text:
    Anthony PALUMBO, Appellant, v. LIL GENERAL STORES CORPORATION, Liberty Mutual Insurance Company, Julius Finkelstein, David Alper and Aetna Casualty & Surety Company, Appellees.
    No. 83-2015.
    District Court of Appeal of Florida, Fourth District.
    July 25, 1984.
    Rehearing Denied Sept. 6, 1984.
    Nancy Little Hoffmann of Hoffmann & .Burris, P.A., Fort Lauderdale, and Harry A. Gaines, Miami, for appellant.
    William R. Lemos and Kevin P. O’Connor of Lanza, Sevier, Womack & O’Connor, P.A., Coral Gables for appellees — Lil General and Liberty Mut.
    Shelley H. Leinicke of Wicker, Smith, Blomqvist, Tutan, O’Hara, McCoy, Graham & Lane, Fort Lauderdale, for appellees— Finkelstein, Alper and Aetna.
   LETTS, Judge.

The appellant was beaten in the parking lot of a convenience store. He filed suit claiming that the store owed him the duty to keep the parking lot safe because prior criminal activity had occurred there.

The convenience store argued there had been no prior beatings and that this particular attack was not foreseeable. The trial judge agreed and granted summary judgment. We reverse.

There had previously occurred both disorderly conduct and an aggravated assault on the premises. Upon the authority of Allen v. Babrab, Inc., 438 So.2d 356 (Fla.1983), we believe the trial judge must be reversed. As Babrab noted, “Foreseeability of an intervening cause is a question for the trier of fact.” Accordingly, the entry of summary judgment in favor of the convenience store must be reversed.

Without further comment we do, however, affirm the summary judgment in favor of the convenience store’s landlord.

AFFIRMED IN PART. REVERSED AND REMANDED IN PART.

HURLEY and DELL, JJ., concur.

LETTS, J., concurs specially with opinion.

LETTS, Judge,

concurring specially.

While Babrab constitutes more welcome fruit trees for the lawyers’ gardens, one wonders about its far reaching consequences. There cannot be many parking lots in South Florida which have not seen criminal violence. This being so, it would appear the current state of the law requires merchants to assume the burden of regular law enforcement — and be unfailingly successful — otherwise a cause of action can be stated against them. One can also contemplate a homeowner’s liability to his guests upon the occasion of a second armed robbery at a dinner party.


author: PER CURIAM.

text:
    David C. WOODSON, Appellant, v. STATE of Florida, Appellee.
    No. 84-213.
    District Court of Appeal of Florida, Fourth District.
    July 25, 1984.
    Rehearing Denied Sept. 5, 1984.
    Bernard F. Daley, Jr., Tallahassee, for appellant.
    No appearance required for appellee.
   PER CURIAM.

Affirmed. See Brod v. State, 418 So.2d 363 (Fla. 4th DCA 1982), aff'd, 437 So.2d 152 (Fla.1982).

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


author: SCHWARTZ, Chief Judge.

text:
    METROPOLITAN DADE COUNTY, Appellant, v. Minnie COX, Appellee.
    No. 83-2687.
    District Court of Appeal of Florida, Third District.
    Aug. 7, 1984.

      Robert A. Ginsburg, County Atty., and Thomas W. Logue, Asst. County Atty., for appellant.
    Gary E. Garbis, Miami, for appellee.
    Before SCHWARTZ, C.J., and NESBITT and DANIEL S. PEARSON, JJ.
   SCHWARTZ, Chief Judge.

Dade County appeals from a $50,-000 judgment reduced from a $60,000 jury verdict under Sec. 768.28(5), Fla.Stat. (1981). The recovery was based upon findings that the plaintiff, who had slipped and fallen in an accumulation of water in a Jackson Memorial Hospital corridor caused by a backed-up drain, had sustained $100,-000 in damages and was 40% comparatively negligent. The only point which deserves discussion is the claim that the fact that the county “admitted liability” — leaving the contributory-comparative negligence issue for jury determination — rendered it erroneous for the trial court to have admitted an internal memorandum from the chairman of the hospital’s safety committee indicating that it had been on actual notice of the defective condition for some time prior to Ms. Cox’s accident and that there had been at least one previous fall at the area in question. We reject this argument and affirm.

While the county correctly contends that evidence concerning liability is irrelevant and prejudicial when, as in the decisions it cites, Barton v. Miami Transit Company, 42 So.2d 849 (Fla.1949); Neering v. Johnson, 390 So.2d 742, 743 (Fla. 4th DCA 1980); and School Board of Palm Beach County v. Taylor, 365 So.2d 1044 (Fla. 4th DCA 1978), the defendant admits entire responsibility for the accident and only the amount of damages remains to be decided, this rule had no application whatever when, as here, the jury must determine the percentage, that is the relative extent of each party’s negligence under the comparative negligence doctrine. The fact-finders’ task in such a case is to determine

such proportion of the entire damages plaintiff sustained as the Defendant’s negligence bears to the combined negligence of both the Plaintiff and the Defendant.

Hoffman v. Jones, 280 So.2d 431, 438 (Fla.1973); see Insurance Company of North America v. Pasakarnis, 425 So.2d 1141, 1143, n. 4 (Fla. 4th DCA 1982) (Schwartz, A.J., dissenting), approved in Insurance Company of North America v. Pasakarnis, 451 So.2d 447 (Fla.1984). Obviously, this cannot be done without complete information as to the quantity, quality, nature and degree of the defendant’s conduct so that the jury knows just what to “compare” with its assessment of the plaintiff’s. In this case, by entering the so-called admission of liability, the defendant below essentially conceded only that it was 1% responsible for the plaintiff’s injuries. When the issue of the relative percentages thus remains virtually entirely open and depends upon the extent of the county’s own negligence, it surely cannot insist that it does not matter that it knew of, but ignored the condition which caused the accident.

In like manner, it could not be contended that by admitting liability in an intersection accident while claiming that the plaintiff was comparatively negligent in exceeding the speed limit, the defendant could preclude, as “irrelevant,” testimony that he had run a stop sign at 90 miles per hour while blind drunk. That was the exact holding in Amend v. Bell, 89 Wash.2d 124, 570 P.2d 138 (1977), where the court said:

The critical matter then is whether all of the evidence of the defendant’s conduct is admissible on the issue of comparative negligence when a defendant admits that one of his acts was a proximate cause of the injury, but claims plaintiff’s negligence was also a proximate cause. Specifically in this case, can plaintiff introduce evidence of alleged intoxication and speed when defendant admits that his failure to yield the right of way was a proximate cause of the collision and plaintiff’s injuries?
The essential question is whether, in a comparative negligence setting, a defendant can shield his total alleged acts of negligence from the jury by admitting to one act of negligence while exposing all of the blameworthy conduct of the plaintiff. We think not.
Comparative negligence means comparison. The trier of fact compares the negligence of plaintiff and defendant. Fault is compared to fault. Thus to determine the negligence of the parties, the trier of the facts must hear the totality of fault. Failure to yield the right of way may be a proximate cause of a collision, but how much more responsibility for the injury was attributable to the defendant who might have been intoxicated or speeding. If we have comparative negligence, we must look at all of the proximate causes of the collision and its consequent injuries. counsel was careful to state that the purpose of the letter was simply to show that the defendant had knowledge of the alleged hazard from and after the date it received the letter. So limited, the exhibit should have been admitted. See 6 Wigmore, Evidence, § 1789 at 235 (3d ed. 1940).

570 P.2d at 142.

The general law on the subject is summarized in the leading and remarkably similar case of Sears v. Southern Pacific Company, 313 F.2d 498 (9th Cir.1963), decided under the Federal Employers’ Liability Act, which embodies a comparative negligence rule identical to Florida’s. See St. Pierre v. Public Gas Co., 423 So.2d 949 (Fla. 3d DCA 1982) (applying FELA-Jones Act authority to resolve Florida comparative negligence issue). In Sears, the trial court excluded from evidence a “notice letter,” like the one in this case, concerning the area in which the plaintiff was injured. On his appeal from an allegedly inadequate verdict, the railroad countered that the ruling was harmless. The court disagreed. It stated that

Defendant, however, contends that any adverse effect the ruling may have had on plaintiffs case was cured by the court’s instructions. Defendant points out that although its knowledge, actual or constructive, of the peril was a material fact essential to the existence of negligence ... the court completely ignored this issue and flatly told the jury that defendant had the duty to provide plaintiff with a reasonably safe place to work. Defendant’s contention would have merit if this case were governed by common law rules, for under them relative negligence by either party is immaterial, and any causal negligence of the plaintiff operates to bar his recovery. But this case is prosecuted under the FELA and section 3 of that Act expressly provides that a plaintiffs contributory negligence is no bar “but the damages shall be diminished by the jury in proportion to the amount of negligence attributable to [him].”
Katila v. Baltimore & O.R.R., 104 F.2d 842 (6th Cir.1939) affords a concrete illustration of the effect of the doctrine of comparative negligence in an action prosecuted under the provisions of the FELA. From that opinion it appears plaintiff had prevailed in the trial court but nevertheless appealed, assigning as error the court’s failure to instruct the jury on two of the four separate acts of negligence charged against defendant. The Court of Appeals reversed, saying that ordinarily:
“[W]hen negligence of a defendant is established compensation is based not upon the gravity of the fault or the number of faults that led to the injury, but is measured by the loss suffered, damages in the usual case being compensatory and not punitive. But once there is introduced into the law, as here, the doctrine of comparative negligence, and a jury permitted to reduce damages in proportion as the plaintiff’s negligence bears to total negligence, then there may not be adequate assay of total negligence unless all negligence supported by evidence is given consideration.” Id. at 843.
* ⅜ * ⅜ * *
Does Section 3 of the FELA, in referring to “amount of negligence,” relate only to the quantity of a party’s negligence, or does it relate also to its quality?
Norfolk & Western Railway v. Earnest, supra, seems to contemplate the latter. The Court did not state that a plaintiff is entitled to receive a share of the damages based on the amount of the injury caused by the negligence of the defendant, but stated in effect that the plaintiff is entitled to a share of the damages based upon the amount of the defendant’s negligence as it compares to the negligence of both parties. Id. 229 U.S. [114] at 122, 33 S.Ct. [654] at 657 [57 L.Ed. 1096 (1913) ]. In thus placing emphasis on comparative fault, rather than comparative contribution, the Supreme Court apparently regarded as important all circumstances tending to characterize the fault of the parties. The Sixth Circuit, in commenting on the Earnest case, has so held. In New York, C. & St. L.R.R. v. Niebel, 214 F. 952 (6th Cir., 1914) ..., the court said
“It does not follow that rule C-14 and testimony of its meaning in practice are wholly inadmissible because its violation was neither declared upon as negligence nor could operate to justify wholly plaintiff’s conduct. Under the rule of comparative negligence, the jury is entitled to consider all the circumstances which characterize the negligence of either party and which tend to fix the quantity and quality of that negligence in its relation to the sum total of the negligence of both parties. Even though the negligence of either party clearly appears, all circumstances of aggravation or of mitigation must be considered; and in view of some of the evidence found in the record regarding the proper practice under this rule, it cannot be said as a matter of law that its nonobservance could have no effect in lessening the quantum of [decedent’s] fault....”
We share the view of the Sixth Circuit that no fair appraisal of the fault of the party can be made unless all incidents of an act of negligence, as well as the act itself, are presented to the jury for its consideration, [e.s.] [footnotes omitted]

313 F.2d at 501-503. Accord, e.g., Murphy v. National Railroad Passenger Corp., 547 F.2d 816, 818 (4th Cir.1977); Hval v. Southern Pacific Transportation Co., 39 Or.App. 479, 592 P.2d 1046 (1979); Mole & Wilson, A Study of Comparative Negligence (pts. 1-2), 17 Corn. L.Q. 333, 604 (1932); Philbrick, Loss Apportionment in Negligence Cases (pts. 1-2), 99 U.Pa.L.Rev. 572, 766 (1951); Prosser, Comparative Negligence, 51 Mich.L.Rev. 465 (1943); Turk, Comparative Negligence on the March (pts. 1-2), 28 Chi-Kent L.Rev. 189, 304 (1951).

The other points raised are devoid of merit.

Affirmed.

      . On appeal, the county alternatively argues that an allegedly inflammatory portion should have been deleted from the memorandum and that the exhibit was not properly authenticated under Sec. 90.803, Fla.Stat. (1981). Since these contentions were not made below, we do not consider them here. Tabasky v. Dreyfuss, 350 So.2d 520 (Fla. 3d DCA 1977); Sears v. Southern Pacific Co., infra, 313 F.2d at 54, n. 2.


text:
    Dorothy W. ROGERS, Appellant, v. Mary L. WILLARD, Jeffrey Willard and Pigeon House Patio, Inc., a Florida corporation, Appellees.
    No. 83-2785.
    District Court of Appeal of Florida, Third District.
    Aug. 7, 1984.
    Mary King Leban, Miami, and Fred But-ner, Key West, for appellant.
    Joseph B. Allen, III, Key West, for appel-lees.
    Before SCHWARTZ, C.J., and NESBITT and DANIEL S. PEARSON, JJ.
   PER CURIAM.

We reverse the directed verdict entered in favor of the defendant upon a finding that the plaintiff had at least made out a prima facie case for recovery of a debt on a simple contract. See Locke v. Aetna Acceptance Corp., 309 So.2d 43 (Fla. 1st DCA 1975). See generally 6 Fla.Jur.2d Bills and Notes § 21. We further hold that the court erred in finding the instrument nonnegotiable because it was payable out of “restaurant earnings.” Payment was not conditioned to be made only out of that source. § 673.105(1)(f), Fla.Stat. (1975); Wright v. Board of Public Instruction for County of Sumter, 77 So.2d 435, 437 (Fla.1955); Barnett Bank of Palm Beach County, N.A. v. Regency Highland Condominium Association, 452 So.2d 587 (Fla. 4th DCA 1984).


author: WENTWORTH, Judge.

text:
    STATE OF DELAWARE, ex rel. Charles M. OBERLY, III, the Attorney General, Appellant, v. J.C. BELIN, T.S. Coldewey, W.L. Thornton, William B. Mills, Alfred Dupont Dent, Jacksonville National Bank, and The Nemours Foundation, a non-profit Florida corporation, Appellees.
    No. AW-440.
    District Court of Appeal of Florida, First District.
    Aug. 8, 1984.
    John F. Corrigan, of Ulmer, Murchison, Ashby, Taylor & Corrigan, Jacksonville, for appellant.
    Fred Kent, Jr., of Kent, Watts, Durden, Kent, Nichols & Mickler, Jacksonville, for appellees.
   WENTWORTH, Judge.

This is an appeal from an order denying appellant attorney’s fees for his Florida counsel. Appellant contends the trial court erred in finding no entitlement to reimbursement from the trust, administered by appellees, for attorney’s fees incurred in bringing an action which is alleged to benefit the trust. We find such benefit but affirm for other reasons.

This litigation commenced in 1981 when the Attorneys General of Delaware and Florida alleged that the trustees had violated a 1980 settlement agreement. That settlement agreement was entered into after a previous action was filed by the State of Delaware. In that case, the trial court had dismissed the Delaware Attorney General’s complaint partly based on a conclusion that the Attorney General for the State of Delaware did not have standing to bring the suit. That conclusion was reversed by this court in State of Delaware v. Florida First National Bank, 381 So.2d 1075 (Fla. 1st DCA 1979). This court found that the people of Delaware had a special interest in the enforcement of the trust, and that the Attorney General of Delaware was the proper party to represent the people of that state. After that decision, the parties entered into the above referenced settlement agreement. The outcome of the current action, which was based on alleged breaches of the settlement agreement, was a finding that the trustees had been undervaluing the fair market value of the trust’s principal asset by approximately $164,000,-000. This finding resulted in a requirement that approximately $5,000,000 in additional income be paid to the beneficiaries. In order to conduct the proceedings in the Florida courts, the Attorney General of Delaware hired private Florida counsel. It is the denial of the motion for attorney’s fees incurred in the “protracted quest to protect the special interests of the Delaware beneficiaries” from which this appeal is taken.

First, appellant argues that the trial court erred in applying to this ease the general rule that an attorney general may not be reimbursed for successfully bringing an action which benefits a charitable trust, even when he retains private counsel. Wemme v. First Church of Christ, 110 Or. 179, 223 P. 250 (1924). The reason for the general rule is that the attorney general has a common law duty to protect and preserve charities in the interest of the public at large, which is unable to bring an action itself. Appellant asserts that in this case he was not representing the public at large (as was the Attorney General of Florida) but was representing a group with a special interest. Appellant also disputes the trial court’s alternate finding that although the litigation benefitted the beneficiaries, it did not benefit the trust. The direct result of the action is that the value of the trust’s asset has been increased by 25%, and appellant asserts that it is plainly wrong to hold that such an increase in value does not benefit the trust.

Appellee argues that the general rule is applicable here because the Attorney General is paid a salary by the State of Delaware to protect the interests of the citizens of Delaware, and that is what he was doing in this case. The rule relied on is that the Attorney General is not entitled to fees when enforcing a charitable trust, and appellant asserts that there are no grounds for an exception in this situation. The complaint in this case alleged that the Attorney General was the representative of Delaware's charitable beneficiaries and “as head of the Department of Justice of the State of Delaware, is charged with protecting the rights of the Delaware beneficiaries under the trust and foundation.” Finally, the trustees argue that the result of the litigation was a benefit only to the beneficiaries, not to the trust. See Barnett v. Barnett, 340 So.2d 548 (Fla. 1st DCA 1977).

To determine whether the cost of an attorney general’s services, rendered for the purpose of enforcing a charitable trust, is reimbursable, we examine the underlying rationale for the attorney general’s power to protect such trusts generally. Clearly, the attorney general is the proper party to protect the interest of the public in insuring that charitable trusts are properly administered. Thus, the Attorney General of the State of Florida was a proper party in this case. In fact, it was the position of the trustees that the Attorney General of the State of Florida was the only proper party. However, that contention was rejected by this court in Delaware v. Florida First National Bank, supra. In that case, this court held that the Attorney General of the State of Delaware was also a proper party because he was representing a special interest of the people of Delaware, in that the trust particularly provides that first consideration be given to beneficiaries (crippled children and old people) who are residents of Delaware. Thus, appellant argues that, unlike the Florida Attorney General, he did not in this suit rely on his general authority to protect the public at large. Even if we assume (without deciding) that such general authority would not ordinarily extend beyond the boundaries of his state, that authority is not necessarily the exclusive basis for his enforcement of a charitable trust. In Jordan v. Landis, 128 Fla. 604, 175 So. 241 (1937), the Supreme Court noted:

The position of the attorney general is as the representative of the beneficial interest where the beneficiaries are the public at large or an indefinite class of persons ‘who because they constitute an indefinite class, cannot themselves appear in person or constitute an attorney.’

Id. 175 So. at 244. The attorney general’s representative interest is accordingly not limited to the public at large, but extends to protection of the interests of beneficiaries when those beneficiaries are not legally able to protect themselves for the reason noted, supra. That the crippled children and old people of the State of Delaware constitute an indefinite class is an inescapable conclusion, since there is no question that this trust is properly classified as a charitable trust, and benefit to the public or community is a necessary factor for classification as a public trust. See Porter v. Baynard, 158 Fla. 294, 28 So.2d 890 (1946). Generally, of course, the interests of the public at large and the interests of the beneficiaries in seeing that the charitable trust is properly administered will go hand in hand. In this case, the Attorney General’s implicit position is that because the Florida Attorney General was charged with the duty of protecting the interests of the public at large, his participation in the case was not pursuant to his official position as Attorney General of the State of Delaware. This position is incorrect because, as indicated by the above quoted passage in Jordan, the attorney general functions both as a representative of the beneficiaries and the public at large.

Although our determination on the first issue requires affirmance without regard to the further finding that the litigation benefitted only the beneficiaries and not the trust, we note that the trial court has applied too broad an interpretation of Barnett to the facts here presented. In Barnett, an action brought by an individual claiming to be a trust beneficiary was unsuccessful. The defending beneficiaries sought attorney’s fees for their successful defense, but the court reversed the attorney’s fee award insofar as it reimbursed the defendants for services which benefit-ted only the beneficiaries and not the trust. That case is not similar to this, which resulted in a proper valuation of the trust’s assets. It would seem obvious that for purposes of efficient and intelligent as well as lawful administration, the trust benefits by being properly valued. Thus, the trial court erred in finding that the trust did not benefit from the representation. The court’s reason for denying fees was therefore improper, but the denial of fees was nevertheless correct for the reason first above detailed, i.e., because the party claiming fees, the appellant Delaware Attorney General who employed Florida counsel and brought the action in this state, was performing a function of his office for which he is not entitled to fees.

Affirmed.

ERVIN, C.J., and BOOTH, J., concur.


text:
    Melvin KELLY, Sheriff of Hernando County, Florida, Appellant, v. The Honorable Wallace E. STURGIS, Circuit Court Judge, Appellee.
    No. 83-45.
    District Court of Appeal of Florida, Fifth District.
    Aug. 9, 1984.

      David C. Sasser of Law Offices of Joseph E. Johnston, Jr., P.A., Brooksville, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Margene A. Roper, Asst. Atty. Gen., Day-tona Beach, for appellee.
   PER CURIAM.

This case involves repression of a portion of a grand jury presentment relating to an individual private citizen.

A grand jury investigated allegations made by a private citizen, B, and others that officials in the office of appellant, Sheriff of Hernando County, and in the office of the state attorney, were guilty of official and unlawful misconduct including the wrongful use of law enforcement investigations for personal and advantageous political and publicity purposes. The grand jury returned neither a true bill nor an indictment but did return an interim presentment or report. The report found that the charges of official misconduct were not substantiated by the evidence but did make findings critical of the administration, supervision and procedures in the two public offices involved and recommended certain procedural changes in those public offices. The report also made critical comments relating to B.

B moved the circuit court to repress those portions of the report that commented on B. The sheriff moved the circuit court to publish those portions of the report that B sought to repress. The presiding circuit judge (the appellee, Honorable Wallace E. Sturgis) granted B’s motion to repress and the sheriff appeals.

Prior to 1973 the Supreme Court of Florida stated that grand juries should make a fair report of their findings, and would not be permitted to single out either public officials or private citizens and censure or defame them or impugn their motives or, by word, imputation, or innuendo, hold them up to scorn, ridicule or criticism without cause or without an accompanying indictment.

Section 905.28(1), Florida Statutes, enacted -in 1973, provides:

No report or presentment of the grand jury relating to an individual which is not accompanied by a true bill or indictment shall be made public or be published until the individual concerned has been furnished a copy thereof and given fifteen days to file with the circuit court a motion to repress or expunge the report or that portion which is improper and unlawful.

In 1977 in Miami Herald Publishing Company v. Marko, 352 So.2d 518 (Fla.1977), the supreme court construed section 905.28(1), Florida Statutes. The court expressly declined to equate the statutory provisions with the judicially created standard of fairness and construed the word “unlawful” to mean portions of a presentment outside the lawful ambit of grand jury authority and the word “improper” to denote a report lacking factual foundations in the record.

The appellant sheriff in this ease argues that the trial judge erred in applying the pre-Marko standard of fairness and that the sole issues are whether the grand jury report is germane to the inquiry and whether findings and recommendations have factual foundations. We do not agree with appellant’s interpretation of Marko’s construction of the statute.

Marko related to a refusal to suppress a grand jury report finding that two Florida Highway Patrol officers were unfit to serve and recommending that they be removed from their official positions. In Marko the supreme court stated that the focus of judicial inquiry on the motion of the public officers to repress under the statute did not turn on the notion of “fairness” but was addressed “to the germaneness and factual foundations of the particular recommendations contained in a report” (emphasis supplied). The court explained that this holding was in conformity with the proper function of our state’s grand juries; in Florida, grand juries are not confined to the indictment function but also have the right to express the view of the citizenry with respect to public bodies and officials in terms of a presentment describing misconduct, errors, and incidences in which public funds are improperly involved and in making recommendations relating thereto. The court stated:

It is inevitable under these circumstances that public officials will be subject to criticism and that, at a minimum, their private reputations will be exposed to opprobrium. In a broad sense, that is not “fair” ... a report may be “proper” by all objective standards but appear “unfair” to some observers. The notion of unfairness is highly subjective, and we fail to discern any legislative directive to add that dimension to the more objective standards specifically set out in the statute.

352 So.2d at 522.

Grand juries have a lawful function to investigate possible unlawful actions for all persons, private citizens and public officials alike, and to return indictments when warranted.

As Marko notes, grand juries also have a lawful and proper function to consider the actions of public bodies and officials in the use of public funds and report or present findings and recommendations as to practices, procedures, incompetency, inefficiency, mistakes and misconduct involving public offices and public monies. 352 So.2d at 522. See also Appeal of Untreiner, 391 So.2d 272 (Fla. 1st DCA 1980). However, grand juries have no legitimate or proper function to go beyond an investigation of criminal activity and matters involving public officials and public monies and to make any report or recommendation that names, embarrasses, ridicules, criticizes, censures, or defames private citizens. Even at the behest of obviously interested persons a grand jury may, in the public interest, properly inquire into alleged misconduct of public officials and the public interest is properly served by an accurate report as to whatever is found to be true without comment on the actions or motives of private citizens that are not a necessary part of the findings relating to the public officials. Here unrepressed portions of the interim presentment contained some criticism of the office of the sheriff and of the state attorney. As Marko explains, this is lawful and proper whether or not it might be considered fair or unfair because it is within the legitimate interest and concern of a grand jury inquiry. However, the private citizen, B, in this case was not found indictable for criminal conduct. The grand jury comments as to B do not relate to anything B did acting as a public official nor do they relate to the use or misuse of public funds. Neither were the grand jury’s commentary on B a necessary part of, or even relevant to, its critical but proper findings as to the two public offices or its recommendations relating to those findings and those offices. Therefore, the grand jury's comments on the private citizen were outside the lawful ambit of grand jury authority and an “improper” object of the proper and official concern to the grand jury and the appellee circuit judge was correct in applying a standard of fairness to the grand jury report and in repressing those portions commenting on the private citizen.

Section 905.28, Florida Statutes, does not authorize or legitimatize a grand jury making an unfair commentary as to the actions or motives of a purely private citizen and Marko does not so hold. We do not read Rubin v. Interim Report of Dade County Grand Jury, 159 So.2d 918 (Fla. 3d DCA 1964), cert. den., 166 So.2d 755 (Fla.1964) to authorize a grand jury to depart from a standard of fairness relating to a private citizen and to make unfair and unnecessary comments as to a private citizen merely because that citizen might be incidentally involved as a complainant or witness in the grand jury’s proper investigation and inquiry into the conduct of some public office or officeholder. Such a rule of law would certainly serve to deter citizen’s complaint to a grand jury to the disadvantage of the public interest.

AFFIRMED.

FRANK D. UPCHURCH, JR., SHARP and COWART, JJ., concur.

      . See generally State v. Clemmons, 150 So.2d 231 (Fla.1963); State ex rel. Brautigam v. Interim Report of Grand Jury, 93 So.2d 99 (Fla.1957); Owens v. State, 59 So.2d 254 (Fla.1952); Re Report of Grand Jury, 152 Fla. 154, 11 So.2d 316, 318 (1943).


author: DAUKSCH, Judge. SHARP, Judge,

text:
    STATE of Florida, Appellant, v. Paul R. FARDELMAN, Appellee.
    No. 83-513.
    District Court of Appeal of Florida, Fifth District.
    Aug. 9, 1984.
    Jim Smith, Atty. Gen., Tallahassee, and Mark C. Menser, Asst. Atty. Gen., Daytona Beach, for appellant.
    Steven W. Huss, Asst. Gen. Counsel, Dept, of Health and Rehabilitative Services, Tallahassee, amicus curiae, for appellant.
    Dan R. Warren, of Judge & Warren, P.A., Daytona Beach, for appellee.
   DAUKSCH, Judge.

This is an appeal from an order suppressing evidence of the results of an intoxilyzer test in a manslaughter case. An intoxilyzer is a device which measures blood/alcohol levels.

This case is like Drury v. Harding, 443 So.2d 360 (Fla. 1st DCA 1983) and we are in agreement with the Drury ruling.. Thus we must reverse the order of suppression. Appellee here also argues that the intoxilyzer device itself was not approved by the Department of Health and Rehabilitative Services as the statutes required. We conclude that the Department of Health and Rehabilitative Services Rule 10D-42.24(5) does approve the device which was apparently used in this case, thus find appellee’s argument without merit. We certify to the supreme court the same question posed in Drury as being of great public importance.

REVERSED and REMANDED.

ORFINGER, J., concurs.

SHARP, J., concurs specially with opinion.

SHARP, Judge,

concurring specially.

The test results in this case had independent scientific standing to justify its admission, even if there were no operable rules then in effect adopted by HRS. I think this item of evidence was admissible quite independent of sections 316.1932(1)(f)1 or 316.1934(3), Florida Statutes (Supp.1982). See Pardo v. State, 429 So.2d 1313 (Fla. 5th DCA 1983).

Relying upon the principle that procedural rules may be retroactively applied, as the majority opinion appears to do, invites the dilemma of having to also hold that procedural rules governing admissibility of evidence in courts may be passed by the legislature. The contrary is well established. Procedural rules governing the operation of the courts of this state are deemed to be the special province of the Florida Supreme Court. Markert v. Johnston, 367 So.2d 1003 (Fla.1978); Benyard v. Wainwright, 322 So.2d 473 (Fla.1975); Military Park Fire Control Tax District No. 4 v. DeMarois, 407 So.2d 1020 (Fla. 4th DCA 1981). Substantive matters affecting the courts may be passed by the legislature, but they are not given retroactive effect. See Barton v. Keyes Company, 305 So.2d 269 (Fla. 3d DCA 1974).


text:
    Lonnie LOWMAN, Appellant, v. STATE of Florida, Appellee.
    No. 83-643.
    District Court of Appeal of Florida, Fifth District.
    Aug. 9, 1984.
    James B. Gibson, Public Defender, and Larry B. Henderson, Asst. Public Defender, Daytona Beach, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Sean Daly, Asst. Atty. Gen., Daytona Beach, for appellee.
   PER CURIAM.

AFFIRMED. See Lennear State, 424 So.2d 151, (Fla. 5th DCA 1982); Kelly v. State, 397 So.2d 709 (Fla. 5th DCA 1981).

FRANK D. UPCHURCH, Jr., SHARP and COWART, JJ., concur.


author: RYDER, Chief Judge.

text:
    ANDRE PIRIO ASSOCIATES, INC., Petitioner, v. PARKMOUNT PROPERTIES, INC., N.V., Respondent.
    No. 84-1348.
    District Court of Appeal of Florida, Second District.
    Aug. 10, 1984.
    Charles J. Bartlett of Icard, Merrill, Cul-lis, Timm & Furen, P.A., Sarasota, for petitioner.
    James W. Whatley of Kanetsky, Moore, DeBoer, Horlick & Whatley, P.A., Venice, for respondent.
   RYDER, Chief Judge.

On May 9, 1984, the plaintiff/petitioner, Andre Pirio Associates, Inc., filed a complaint seeking specific performance of a real estate contract or, in the alternative, damages. On that same day, the petitioner filed a notice of lis pendens. On June 8, 1984, the defendant/respondent filed a motion to strike the lis pendens and a motion to require the posting of bond, together with a notice to set the hearing for these motions on June 13, 1984. Also on June 8, counsel for petitioner immediately advised counsel for respondent that the hearing date conflicted with an important deposition which had been scheduled for two months and a previously scheduled hearing on another case. Counsel for respondent refused to reschedule the hearing. Counsel for petitioner filed a motion for continuance of the hearing on the motions, but was unable to obtain a hearing time for consideration of this motion prior to June 13, 1984. On that date, counsel for petitioner sent another attorney who had limited familiarity with the case to argue the motion for continuance, the motion to strike lis pendens, and the motion to require the posting of bond. The hearing had been noticed for a duration of thirty minutes.

At the June 13 hearing, the petitioner’s counsel argued several times that before being required to post bond, there must be a full evidentiary hearing as to the measure of damages and that five days notice was insufficient time to prepare for such a hearing. The judge initially agreed that the bond question was a matter to be resolved at an evidentiary hearing. However, the judge then ruled that the motion for continuance would be denied unless the petitioner was able to schedule, before another judge, a full evidentiary hearing on the question of bond prior to 11:00 a.m. on June 19, 1984. June 19 was the date on which the respondent was schéduled to close on the sale of the contested property with another buyer. The court also ruled that unless an evidentiary hearing was held before June 19, or unless the petitioner posted a $200,000.00 bond before 11:00 a.m. on that date, that the petitioner’s notice of lis pendens would be stricken.

Once again, petitioner’s counsel objected to the court setting a bond without a full evidentiary hearing. The court then took testimony from another attorney for respondent who allegedly was familiar with the facts and circumstances regarding the contested piece of property. The attorney testified that a valid contract had been entered into with another buyer, that the contract was scheduled to close on June 19, and that the financial terms of the contract were identical to the contract which respondent had entered into with the petitioner. The contract upon which the June 19 closing was scheduled to take place was entered into evidence. Petitioner’s counsel objected that this was the first time he had seen the contract and that he had not been able to prepare any testimony or evidence in response to it. Petitioner’s counsel then declined to cross-examine the respondent’s attorney for that reason and reasserted the objection that the court had not had sufficient evidentiary testimony presented to it to enable it to set and order the posting of the $200,000.00 bond.

The written order containing the judge’s rulings was entered on June 15, 1984. Petitioner’s counsel was unable to obtain a time for a full evidentiary hearing on the amount of bond before June 19. However, on June 15, petitioner was able to obtain an emergency hearing on a motion to stay pending review of the June 15 order. After that hearing, the judge entered a verbal ruling which stayed the order pending review upon the filing of a petition for a writ of certiorari in the Second District Court of Appeal. His order also required the posting of a $10,000.00 bond before June 19, 1984.

The petition for the issuance of a writ of certiorari was filed with this court on June 19. In it, petitioner asks this court to quash the order of the lower court which required the posting of $200,000.00 bond before June 19 or the discharge of the notice of lis pendens. Petitioner also requests that we remand the matter to the trial court with instructions to hold a full evidentiary hearing to determine the proper amount and conditions of the bond and to maintain the notice of lis pendens.

Petitioner’s counsel argues that they repeatedly objected to the setting of bond without any testimony to ascertain what damages respondent might suffer if the lis pendens were maintained. Despite the objections, the court announced its ruling as to the amount of bond. The court below agreed to take some testimony only after his decision to set bond. That testimony was quite limited and was taken from only one witness who was, in fact, an attorney who represented the respondent in connection with the proposed sale of the contested property. Petitioner argues that nothing elicited during that testimony or found in the sales contract for the contested property forms a sufficient evidentiary basis for setting a bond in the amount of $200,-000.00.

Petitioner acknowledges that the trial court has discretion to set a bond as a condition to the continuance of a notice of lis pendens. However, they argue that the setting of bond without any evidentiary basis departs from the essential requirements of the law and requires reversal, directing our attention to Glusman v. Warren, 413 So.2d 857 (Fla. 4th DCA 1982). In that case, the petitioners filed a complaint alleging an equitable interest in property and filed a notice of lis pendens. The respondents moved for an emergency hearing to dissolve the lis pendens and require the posting of seven million dollars bond. Within twenty-four hours of the notice to the petitioners of the hearing, the court set the requested bond without taking any evidence as to the amount and terms of a reasonable bond. The Fourth District granted the petition and held that even though the trial court may have been correct in setting the bond in the amount of seven million dollars, the setting of the bond without an evidentiary basis was a departure from the essential requirements of the law and must be remanded for another hearing. Petitioner argues that the facts and the procedural path of this case mirror that found in Glusman.

In the response to the petition for writ of certiorari, respondent argues that petitioner had five days notice prior to the June 13 hearing, that petitioner’s counsel appeared at the hearing but failed to present any witnesses, and that petitioner has yet failed to rebut the testimony given by an attorney for respondent during said hearing. The respondent agrees that the Glusman case is controlling, and that under Glus-man the setting of bond without an eviden-tiary hearing is improper. However, respondent argues that the hearing which took place on June 13 was an evidentiary hearing at which the petitioner had a reasonable opportunity to present testimony but failed to do so. Further, respondent argues that petitioner had the time and the opportunity to present witnesses at the June 15 emergency hearing on the motion to stay but also failed to do so. Respondent contends that Glusman is distinguished from the instant ease because the petitioners in Glusman had less than twenty-four hours’ notice of the hearing on bond. In this case, the petitioner had nineteen days from the time he first received notice of the motion to set bond and the motion to strike the lis pendens, but has failed to produce any witnesses. Additionally, evidentiary testimony was given by the attorney for the respondent during the June 13 hearing.

As a second ground upon which to vacate the trial court’s order, petitioner argues that the order is fatally defective because it does not specify who is to be the obligee, whether a surety is required, whether the bond needs to be approved, and what are the terms and conditions for payment. Belks Department Store, Miami, Inc. v. Scherman, 117 So.2d 845 (Fla. 3d DCA 1960).

Respondent replies that in Central Theatres, Inc. v. State ex rel. Braren, 161 So.2d 558 (Fla. 2d DCA 1964), this court cited a portion of Belks which set forth the ground rules which limit a court’s discretion:

A party seeking and obtaining a restraining order or other form of injunction ... must ... be required to file a bond, with good and sufficient surety, to be approved by the court or clerk of the court, payable to the opposing party or parties, in the principal amount fixed by the court, and conditioned as required by law.

Belks at 848; Central Theatres at 562. Respondent argues that because there are only two parties in this case, there can be no dispute as to who the obligee is under the bond. They further argue that since the trial court ordered that the bond be posted with the clerk of the circuit court in Sarasota County in the amount of $200,-000.00 and that the bond be posted on or before June 19, the order setting bond was sufficient.

The ruling of the trial court that a $200,-000.00 bond must be posted to maintain the lis pendens if the petitioner failed to obtain a full evidentiary hearing before June 19 was based on inadequate evidence. The trial court announced its decision before any testimony whatsoever was taken. Although the court then took testimony from the attorney for the respondent, that evidence was insufficient to provide an eviden-tiary basis for setting a $200,000.00 bond. Setting a bond in an obviously speculative manner such as this is an abuse of discretion and error. The court below departed from the essential requirements of the law, Glusman.

The petition for certiorari is granted, the writ is issued, and the trial court’s order is set aside. The case is remanded for a full evidentiary hearing and other proceedings consistent with this opinion.

REVERSED and REMANDED with instructions.

BOARDMAN and DANAHY, JJ., concur.


author: NIMMONS, Judge.

text:
    Joe Jack CALDWELL and Yvonne Caldwell, Appellants, v. ALLSTATE INSURANCE COMPANY, Appellee.
    No. AU-61.
    District Court of Appeal of Florida, First District.
    Aug. 14, 1984.

      David M. Wiesenfeld of Dawson, Galant, Sulik, Levy & Ellis, Jacksonville, for appellants.
    Shawn Ettingoff and J. Stephen O’Hara, Jr., of Mathews, Osborne, MeNatt, Gogel-man & Cobb, Jacksonville, for appellee.
   ON REHEARING

The following opinion is substituted for the original opinion filed June 1,1984. The parties’ various motions for rehearing or clarification are otherwise denied.

NIMMONS, Judge.

This is an appeal from a summary final judgment entered in favor of Allstate Insurance Company (“Allstate”) in a suit wherein the appellants (“the Caldwells”) sought to recover amounts in excess of policy limits by reason of Allstate’s denial of coverage and refusal to defend its insured. James David Watts (“Watts”).

A chronology of the facts and proceedings is necessary to our discussion of the proper resolution of this case. Three separate lawsuits, all filed in the Circuit Court of Duval County, are involved in the chronology: (1) the Caldwells, plaintiffs vs. Watts, defendant, filed September 15,1980, hereafter sometimes referred to as “the accident case”; (2) Allstate, plaintiff vs. Watts and the Caldwells, defendants, filed March 4, 1981, hereafter sometimes referred to as “the declaratory judgment case”; and (3) the Caldwells, plaintiffs v. Allstate, defendant, the instant case in which the Caldwells sought to recover sums in excess of policy limits.

The genesis of this litigation was a collision in September, 1980, between a motor vehicle operated by appellant Joe Caldwell and a vehicle owned and operated by James David Watts. On September 15, the Cald-wells instituted the accident case against Watts and Allstate alleging negligence on the part of Watts and alleging that Allstate provided liability coverage to Watts for damages arising out of his negligence in causing the accident. Allstate employed attorney S. Thompson Tygart, Jr., to represent it in the suit and to investigate whether there was coverage under its policy. An answer was filed on October 1, 1980, on behalf of Allstate denying all allegations of the complaint, including those allegations concerning coverage.

On January 23, 1981, Allstate’s counsel filed a “Motion for Leave to File a Cross-Claim and Counterclaim” by which Allstate sought to institute a declaratory judgment proceeding on the coverage question. Pri- or to the scheduled hearing on Allstate’s motion, the Caldwells voluntarily dismissed Allstate as a party defendant.

Tygart further investigated the insurance coverage question and, although adhering to his original opinion of no coverage, recommended that Allstate institute a declaratory judgment action in order to settle the question.

On March 4, 1981, Tygart filed such an action on behalf of Allstate against Watts and the Caldwells. Although the complaint requested that an injunction be entered staying the Caldwells’ accident case against Watts, Allstate never called up for hearing any such motion for injunctive relief. The Caldwells answered Allstate’s complaint on March 30, 1981. Meanwhile, in the accident case, after the Caldwells dismissed Allstate from that case, Allstate was not furnished any further notices or pleadings except that the Caldwells’ attorney did notify Tygart by letter on May 8 that the Caldwells intended to proceed to final judgment against Watts. No answer or appearance on behalf of Watts having ever been filed in the accident case, a default was entered against Watts on September 2, 1981, upon motion by the Cald-wells.

On September 17, 1981, a summary final judgment was entered in favor of Allstate in the declaratory judgment action declaring no coverage and no duty to defend Watts. Two weeks later, the Caldwells took an appeal from that summary judgment to this court.

While the above appeal was pending, the Caldwells proceeded to a nonjury trial in the accident case on the issue of damages. Final judgment was entered on November 19, 1981, against Watts and in favor of the Caldwells in the sum of $32,547. The subject Allstate policy provided for liability limits for bodily injury to each person in the amount of $15,000.

Subsequently, on July 14, 1982, this court reversed the trial court’s summary judgment in the declaratory judgment case and found coverage under the policy. See Caldwell v. Allstate Insurance Company, 417 So.2d 1040 (Fla. 1st DCA 1982). Allstate’s motion for rehearing was denied on August 31, 1982. The Caldwells’ attorney had, on July 14, 1982, demanded payment from Allstate of the entire amount of the judgment plus interest.

Pursuant to negotiations between Allstate and the Caldwells, Allstate paid to the Caldwells on October 28, 1982, the sum of $17,100.60 representing the $15,000 coverage limits, costs and interest. Although Allstate’s attorney had attempted to condition such payment upon the Caldwells’ waiver or relinquishment of any right to pursue a claim in excess of the policy limits, the Caldwells declined that demand, and Allstate ultimately agreed to the above payment without the Caldwells’ waiver of any rights they might have to pursue their excess claim.

In January, 1983, the Caldwells filed the instant suit against Allstate seeking recovery of the amount of the judgment in the accident case in excess of Allstate’s $15,000 liability limits. The Caldwells asserted two theories: (1) breach of contract — Allstate breached its contractual obligation to defend its insured in the accident case; and (2) bad faith — Allstate was guilty of bad faith in failing to defend its insured and in failing to attempt to negotiate a settlement for its insured. The trial court granted a summary judgment for Allstate on both counts of the Caldwells’ complaint.

We believe that the trial court was correct in entering summary judgment on the bad faith count. It cannot reasonably be said that Allstate or its counsel was guilty of the kind of conduct which has typified those cases in which the courts have found the existence of bad faith. American Fidelity Fire Insurance Company v. Johnson, 177 So.2d 679 (Fla. 1st DCA 1965); Thomas v. Western World Ins. Co., 343 So.2d 1298, 1303 (Fla. 2nd DCA 1977); Florida Farm Bureau Mutual Insurance Company v. Rice, 393 So.2d 552 (Fla. 1st DCA 1980). It is apparent from the record that Allstate's attorney exercised reasonable diligence in investigating the Caldwells’ claim in the accident case including the question of coverage under its policy of insurance. In fact, Mr. Tygart did exactly what this court suggested in American Fidelity:

[T]he better part of wisdom should have dictated to American Fidelity the resolution of the question of its liability to the insured under the claimed renewal of the policy by the simple expedient of a declaratory judgment proceeding, at the inception of the litigation.

177 So.2d at 683. See also A.M. Glass Industries v. Allstate Ins. Co., 441 So.2d 672, 674 (Fla. 2nd DCA 1983). Early in the accident suit, Tygart sought to file a counterclaim and crossclaim seeking a declaratory judgment on the coverage question. Instead, the Caldwells dismissed Allstate from the suit. Tygart persevered in his efforts to obtain a judicial declaration by filing a separate declaratory judgment action. The trial court in the declaratory judgment action on September 17, 1981, entered summary judgment for Allstate finding no coverage from which judgment the Caldwells took an appeal to this court. Meanwhile, the Caldwells, having obtained a default against Watts on September 2, 1981, proceeded to final judgment in the accident case on November 19, 1981. The declaratory judgment was not reversed until the following July.

Even though we agree with the trial court’s determination that Allstate is not liable for amounts exceeding policy limits under the bad faith theory. Allstate is not out of the woods because there may be liability under the appellees’ breach of contract theory. Allstate asserts that recovery under such a theory is foreclosed because of the absence of any offer by the Caldwells to settle within the policy’s limits of liability. Although this court has recognized such to be the general rule, Davis v. Nationwide Mutual Fire Insurance Co., 370 So.2d 1162 (Fla. 1st DCA 1979), it does not necessarily apply in all breach of contract excess recovery claims. For example, if the insured is unable to employ his own attorney, and if it can be demonstrated that an attorney could have asserted defenses which could reasonably be expected to avoid, totally or partially, a judgment against the insured, then the company should be answerable for so much of the excess over the policy limits as its breach caused. The court in Thomas v. Western World Insurance Co., supra, in discussing the breach of contract theory, observed:

[Ejven in the absence of a settlement offer, the insurer may be liable for an excess judgment where (1) due to the actions of the insurer, the insured suffers a default or final judgment without benefit of an attorney, and (2) the insured can prove the final judgment would have been lower had the suit been properly defended. Such a case would fall within the general rule, quoted above, that policy limits do not restrict the damages recoverable by the insured for breach of contract.

343 So.2d at 1302. Moreover, Allstate’s argument that it was acting in good faith in denying coverage because it did so upon an honest belief supported by advice of counsel is unavailing. See St. Paul Fire and Marine Insurance Co. v. Thomas; 273 So.2d 117, 122, f.n. 7 (Fla. 4th DCA 1973). Although an insurance company is certainly entitled to make a thorough investigation to determine whether there is coverage under its policy of insurance, the company acts at its peril in refusing to defend its insured in that, if it is subsequently determined that the company erroneously denied coverage, the company will be liable for damages for breach of its agreement under the policy. Florida Farm Bureau Mutual Insurance Co. v. Rice, supra. Of course, as we have said, that does not mean that one seeking recovery under this theory will automatically be entitled to recover. He must first prove that he has sustained damages as a legal cause of the carrier’s breach.

The Caldwells point to their affidavit filed in connection with the summary judgment proceedings to demonstrate the damages flowing from Allstate’s refusal to defend. Their affidavit simply says that if Allstate had defended Watts in the accident case, the Caldwells would have offered to settle the case for the policy limits of $15,-000. Therefore, the Caldwells assert, the damages in the instant case should be regarded as the total amount of the judgment entered against Watts less the $17,-100 already paid by Allstate. We reject this approach. Plaintiffs’ proof of damages must rest upon something other than their self-serving after-the-fact statement that they would have settled for the $15,-000 policy limits.

Basically, Allstate’s breach was its failure to provide its insured with representation in the accident case. The insured had a contractual right to be furnished competent legal representation by Allstate. But even though the company failed to furnish counsel, such an insured has an obligation to avoid the consequences of the breach by employing counsel himself where the circumstances are such that he can reasonably be expected to do so. See Thomas v. Western World Insurance Co., supra, at p. 1303; cf. American Fidelity Fire Insurance Co. v. Johnson, supra, at p. 683; see generally 17 Fla.Jur.2nd Damages §§ 22 et seq. And even if it can be said that the circumstances were such that the insured was unable to employ an attorney, the plaintiffs have the burden of proving that the final judgment would likely have been lower had the suit been properly defended.

If the insureds fail in carrying the burden, they are in no worse position now than they would be had the carrier not breached its contract and had undertaken a proper defense.

Thomas v. Western World Ins. Co., supra at 1303.

The thrust of Allstate’s motion for summary judgment, together with its supporting affidavits, was that it was entitled to summary judgment under both theories of the complaint because (1) it had not engaged in conduct amounting to “bad faith” and (2) there had been no settlement offer within the limits of the policy’s liability. Although we agree that the trial court correctly granted summary judgment on the bad faith count, we do not believe that summary judgment was proper on the breach of contract count. The complaint alleged that Allstate’s breach of the policy provisions caused its insured to be unrepresented in the accident case and resulted in a default being entered against its insured. The complaint also alleged that as a result of Allstate’s breach, the amount of the judgment awarded the Caldwells was substantially greater than would have been recovered had Allstate provided him with legal representation. The affidavits and other documents relied upon by the parties and the trial court do not adequately address these issues. It cannot, therefore, be said that there was no genuine issue of material fact regarding the breach of contract count.

We therefore affirm the summary judgment as to the bad faith count and reverse as to the breach of contract count and remand for further proceedings consistent with this opinion.

MILLS and SMITH, JJ„ concur.

      . Allstate candidly concedes that the absence of such a settlement offer would not bar excess recovery under the bad faith theory. E.g. Florida Farm Bureau Mutual Insurance Company v. Rice, supra; Davis v. Nationwide Mutual Fire Insurance Co., 370 So.2d 1162 (Fla. 1st DCA 1979). (Although the opinion in Davis did not actually characterize the alleged conduct of the insurance carrier as "bad faith," the conduct alleged, as reflected in the opinion, certainly fell within the category of bad faith.)

      . No issue was raised on appeal regarding the Caldwells’ right to stand in the shoes of the insured in asserting the latter's breach of contract claim against the insurance carrier. This court's decision in Florida Farm Bureau Mutual Insurance Co. v. Rice, supra, seems to assume such right although, there, the carrier was determined to be guilty of bad faith. However, Allstate did not urge the "standing" ground in support of its motion for summary judgment in the court below, the trial judge apparently did not rely upon such ground, and the parties’ briefs have not addressed such point. We, therefore, do not reach that question, and the trial court is not foreclosed from considering the same upon proper presentation in the ensuing further proceedings.


author: HENDRY, Judge.

text:
    Jeffrey JONES, Appellant, v. The STATE of Florida, Appellee.
    No. 83-45.
    District Court of Appeal of Florida, Third District.
    Aug. 14, 1984.

      Bennett H. Brummer, Public Defender, and Dubiner & Blumberg and Sara Bresky Blumberg, Sp. Asst. Public Defenders, for appellant.
    Jim Smith, Atty. Gen., and Randi B. Klayman, Asst. Atty. Gen., for appellee.
    Before SCHWARTZ, C.J., and HENDRY and FERGUSON, JJ.
   HENDRY, Judge.

Jeffrey Jones appeals from conviction and sentence for burglary of a structure, sexual battery, robbery, grand theft second degree, and dealing in stolen property. For reasons more fully developed below, we affirm in part and reverse in part.

As his main point on appeal, appellant argues that the trial court erred in allowing the jury to hear testimony regarding the sexual assault by the co-defendant. He further states that despite the fact that he was charged with other crimes upon the person and property of the victims, the repeated references to the co-defendant’s sexual assault upon the victim could serve no purpose other than to prejudice and inflame the.minds of the jury against him. While we believe such references to have been zealous overkill, and thus erroneous, cf. Rolle v. State, 431 So.2d 326 (Fla. 3d DCA 1983), we find that the error, given the totality of the circumstances as reflected by the trial record, was not prejudicial to the substantial rights of the appellant.

The issue presented herein involves application of the harmless error doctrine, which is well-established. In Palmes v. State, 397 So.2d 648 (Fla.1981), the Florida Supreme Court stated:

In determining whether an erroneous ruling below caused harm to the substantial rights of the defendant, an appellate court considers all the relevant circumstances, including any curative ruling or event and the general weight and quality of the evidence. In other words, the court inquires generally whether, but for the erroneous ruling, it is likely that the result below would have been different.

Id. at 653-654. See also Recinos v. State, 420 So.2d 95, 98 (Fla. 3d DCA 1982). The court went on to say:

When the error affects a constitutional right of the defendant, the reviewing court may not find it harmless ‘if there is a reasonable possibility that the error may have contributed to the accused’s conviction or if the error may not be found harmless beyond a reasonable doubt.’ Even such ‘constitutional error,’ however, may be treated as harmless where the evidence of guilt is overwhelming.

Id. at 654 (citations omitted). See also Drake v. State, 441 So.2d 1079, 1082 (Fla.1983). More recently, the United States Supreme Court stated that “the Court has consistently made clear that it is the duty of a reviewing court to consider the trial record as a whole and to ignore errors that are harmless, including most constitutional violations.” United States v. Hastings, 461 U.S. 499, -, 103 S.Ct. 1974, 1980, 76 L.Ed.2d 96, 106 (1983). Thus, the correct standard for appellate review is whether “the error committed was so prejudicial as to vitiate the entire trial [,]” State v. Murray, 443 So.2d 955, 956 (Fla.1984); Harris v. State, 449 So.2d 892, 897 (Fla. 1st DCA 1984)(e.s.); that is, whether there is a demonstration of prejudice to the substantial rights of the defendant such that it may have contributed to the accused’s conviction or changed the outcome of the trial. There is no such showing here.

Appellant was arrested solely on the basis of having sold the victims’ stereo to an informant. Later, after having been given Miranda warnings, he confessed to a number of crimes against the victims, including his own gratuitous sexual battery of the wife. While the voluntariness of the confession was argued below, the trial court found that it was freely made, the confession was admitted as evidence, and it is not challenged on appeal. Appellant’s confession mirrored the horrifying events as testified to by the victims. Thus, there was ample and overwhelming evidence upon which the jury could find this appellant guilty and we cannot say that the jury was inflamed enough by the evidence of the other sexual assault to reach an unjust or incorrect verdict, or that appellant was unduly prejudiced by its admission. See Lee v. State, 444 So.2d 580 (Fla. 5th DCA 1984). We add, however, the cautionary note expressed by this court in Molina v. State, 447 So.2d 253 (Fla. 3d DCA 1983):

Merely because error can be rendered harmless because of other evidence, it is error nonetheless. Although a conviction in a strong case may be affirmed on a harmless error theory, that is not an invitation to prosecutors to commit the error and does not in any way affect their obligation to avoid deliberately eliciting inadmissible testimony in order to further tip the scales against the defendant.

Id. at 255 (Pearson, J., specially concurring).

As his second issue on appeal, appellant argues that the trial court erred in not setting aside the conviction for grand theft when there was also a conviction for dealing in stolen property. Appellant urges that section 812.025, Florida Statutes (1981) precludes convictions and sentences for both offenses. We find that this argument has merit, notwithstanding the state’s attempt to circumvent the statute’s prohibition by limiting the grand theft count to the stolen car and limiting the dealing in stolen property count to the stereo component system. Since the theft of the car and the stereo and the sale of the stereo two days later were all a portion of the same scheme or course of conduct, see Kelly v. State, 397 So.2d 709 (Fla. 5th DCA 1981), the convictions and sentences for both grand theft and dealing in stolen property cannot stand. Accordingly, we reverse the conviction and sentence for grand theft, second degree.

Finally, appellant points out that the trial court included the fifteen year sentence for dealing in stolen property when it computed the term of his imprisonment over which it could retain jurisdiction pursuant to section 947.16, Florida Statutes (1981). This was error. Section 947.16(3) lists the crimes for which a trial court may retain jurisdiction over the offender for review of a parole commission order. Dealing in stolen property is not included in the statutory list of crimes. Therefore, the inclusion of the fifteen years must be stricken. This, coupled with the reversal of the conviction and sentence for grand theft, means that the trial court may retain jurisdiction over the first 99 years of appellant’s sentence only.

The ruling of the trial court is affirmed in part, reversed in part, and remanded for correction of the sentencing errors. The defendant does not need to be present when sentence is corrected.

      . The Court went on to say, however, that prose-cutorial misconduct would not be condoned. It stated that the appropriate punishment for such misconduct would be to refer the matter to the local Bar Disciplinary Committee.

      . Section 812.025 states:
      Notwithstanding any other provision of law, a single indictment or information may, under proper circumstances, charge theft and dealing in stolen property in connection with one scheme or course of conduct in separate counts that may be consolidated for trial, but the trier of fact may return a guilty verdict on one or the other, but not both, of the counts.


author: NESBITT, Judge.

text:
    John ADAN, Appellant, v. The STATE of Florida, Appellee.
    No. 83-2325.
    District Court of Appeal of Florida, Third District.
    Aug. 14, 1984.

      Bennett H. Brummer, Public Defender, and John H. Lipinski, Sp. Asst., Public Defender, for appellant.
    Jim Smith, Atty. Gen., and Julie S. Thornton, Asst. Atty. Gen., for appellee.
    Before NESBITT, BASKIN and FERGUSON, JJ.
   NESBITT, Judge.

The defendant appeals his judgment and conviction of second-degree murder. We affirm.

The defendant first contends that the trial court erred in denying his motion to suppress his confession. He argues that the police officer’s failure to notify the defendant’s attorney prior to talking with the defendant factually precluded an informed, knowing and voluntary waiver of the defendant’s right to remain silent. We disagree.

A similar argument was raised without success in Waterhouse v. State, 429 So.2d 301 (Fla.1983). In that case, the supreme court refused to adopt a per se rule requiring police to notify the defendant’s attorney before communicating with the defendant. The court held:

The fact that an accused is represented by counsel does not preclude his waiver of the right to have counsel present when talking to law enforcement officers. [citation omitted]

429 So.2d at 305. It is clear that the presence of counsel is not essential to the validity and effectiveness of a waiver of rights. Monroe v. State, 369 So.2d 962 (Fla. 3d DCA), cert. denied, 376 So.2d 74 (Fla.1979).

In the present case, an officer read the defendant his rights pursuant to Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), prior to any conversation. The defendant indicated that he understood his rights and desired to waive them. He then executed a written waiver of his rights. Following this waiver, the defendant described in detail the death of the victim and his participation in the incident. We find that the voluntariness of the confession and the defendant’s waiver of rights was established by a preponderance of the evidence, see Johnson v. State, 294 So.2d 69 (Fla.1974), and that, therefore, the trial court properly denied the defendant’s motion to suppress.

The defendant next asserts that it was error for the trial court to allow the murder victim’s sister to testify as to the identity of the deceased. The well-established rule in Florida is that a member of the deceased victim’s family may not testify for the purpose of identifying the victim where nonrelated, credible witnesses are available to make such identification. Welty v. State, 402 So.2d 1159, 1162 (Fla.1981); Lewis v. State, 377 So.2d 640, 643 (Fla.1979). See also Rowe v. State, 120 Fla. 649, 163 So. 22 (1935). The purpose of this rule is to assure the defendant as dispassionate a trial as possible and to prevent interjection of matters not germane to the issue of guilt. Welty, 402 So.2d at 1162.

The record in the present case indicates that the state’s intended neutral identification witness was unable to testify due to illness. It does not appear that any other “neutral” identification witness was available at the time of trial. See Furr v. State, 229 So.2d 269 (Fla. 2d DCA 1969), cert. denied, 237 So.2d 538 (Fla.1970). Furthermore, it is clear from the record that the sister’s identification testimony was not of such a nature as to evoke sympathy or prejudice the defendant. Welty. Accordingly, the admission of the identification testimony was not reversible error.

The defendant’s final contention is that the trial court erred in not granting a mistrial after a state witness testified that the defendant was in custody for an unrelated charge of burglary when he was questioned by an officer concerning the murder. Generally, evidence of collateral crimes is inadmissible if its sole purpose is to establish bad character or propensity of the defendant to commit a crime. Williams v. State, 110 So.2d 654 (Fla.), cert. denied, 361 U.S. 847, 80 S.Ct. 102, 4 L.Ed.2d 86 (1959). The testimony concerning the defendant being in custody for an unrelated charge of burglary, under the particular facts of this case, was not relevant to any issue of material fact concerning the murder and therefore was inadmissible under the Williams rule. See Waterhouse, 429 So.2d at 306. Cf. Clark v. State, 337 So.2d 858 (Fla. 2d DCA 1976) (court indicated that evidence that defendant had been placed under arrest for an unrelated crime was relevant to give an “intelligent account of the circumstances of his making the statement,” but that evidence of what the unrelated crime was, went too far).

Where the proof of guilt is clear and convincing, however, a violation of the Williams rule may be considered harmless error. Clark v. State, 378 So.2d 1315 (Fla. 3d DCA 1980). The record in the present case contains a statement by the defendant in which he relates his involvement in the murder. The way the body was found and the manner of death were consistent with the defendant’s account of the incident given to the police. Therefore, although we find that the Williams rule was violated; we also find that the error was harmless. See Waterhouse, 429 So.2d at 306; Clark, 378 So.2d at 1316-17.

Accordingly, since the defendant has failed to demonstrate reversible error, the judgment is affirmed.

      . We also note that the trial was conducted with the trial judge sitting as the trier of fact. As observed by the supreme court in First Atlantic National Bank of Daytona Beach v. Cobbett, 82 So.2d 870, 871 (Fla.1955):
      [I]n cases tried by the Judge without a jury the Judge is in a position to evaluate the testimony and discard that which is improper or which has little or no evidentiary value.
      We do not find that the testimony concerning the burglary charge harmfully affected the defendant "when considered and evaluated by an experienced trial judge.” Cobbett, 82 So.2d at 872. See also Perez v. State, 452 So.2d 107 (Fla. 3d DCA 1984). In fact, the defendant’s counsel himself elicited testimony of the burglary charge during the direct examination of the defendant. See Taylor v. State, 289 So.2d 421, 423 (Fla. 3d DCA 1974). See also Killingsworth v. State, 90 Fla. 299, 105 So. 834, 837 (1925). Accordingly, no reversible error is present.


text:
    Tracy DOANE, Appellant, v. Michael RAPP and Janet L. Swift, Appellees.
    No. 84-43.
    District Court of Appeal of Florida, Third District.
    Aug. 14, 1984.
    Joseph S. Paglino, Miami, for appellant.
    Rubinstein & Kornik and Roxanne Lan-cella, Miami, for appellees.
    Before SCHWARTZ, C.J., and BARK-DULL and JORGENSON, JJ.
   PER CURIAM.

The order under review setting aside a final judgment entered by a predecessor judge is vacated because the successor judge who granted that relief did not have authority to do so under the rule set forth in Groover v. Walker, 88 So.2d 312 (Fla.1956). Accord, e.g., Boeing Co. v. Merchant, 397 So.2d 399 (Fla. 5th DCA 1981), pet. for review denied, 412 So.2d 468 (Fla.1982); Better Construction, Inc. v. Camacho Enterprises, Inc., 311 So.2d 766 (Fla. 3d DCA 1975), cert. denied, 325 So.2d 8 (Fla.1975). The cause is remanded for consideration of the appellees’ timely post-judgment motions by the predecessor judge who entered the final judgment in question.


text:
    Emilio Aparaca FLORES, Petitioner, v. The Honorable Patricia W. COCALIS, Respondent.
    No. 84-1264.
    District Court of Appeal of Florida, Fourth District.
    Aug. 15, 1984.
    Charles F. McCloskey, Jr., of Richard R. Kirsch, P.A., Fort Lauderdale, for petitioner.
    Jim Smith, Atty. Gen., Tallahassee, and Marlyn J. Altman, Asst. Atty. Gen., West Palm Beach, for respondent.
   ANSTEAD, Chief Judge.

This is a petition for issuance of a writ of habeas corpus seeking review of the trial court’s order setting petitioner’s pretrial bail bond in the amount of $125,000. The court has jurisdiction pursuant to Florida Rules of Appellate Procedure 9.030(b)(3) and 9.100(a).

The petitioner, Emilio Aparaca Flores, was arrested on March 31, 1984 on charges of conspiracy to traffic in cocaine and trafficking in cocaine. Bond was set at $250,-000 for each count. On April 9, 1984 Flores filed a motion to reduce bail. At the hearing on April 19, 1984 the state chose to file only one count of trafficking in cocaine and bond was reduced, automatically, to $250,000. The court heard testimony as to Flores’ ties to the community and the court found that they were not strong. Nevertheless, bond was reduced to $125,000. Flores asserts in his petition that this is far in excess of his means or that of his family and thus it is tantamount to a denial of a reasonable bond. On June 5,1984 a second motion to reduce bond was heard before Judge Cocalis. The judge declined to hear additional testimony and denied the motion to reduce bond noting that she had been “burned” on three prior occasions by the disappearance of individuals whose bonds she had reduced. Flores submits that the fact that others have not honored their legal commitments should not prejudice his being granted a reasonable bond. We agree with Flores on that point but do not believe he had demonstrated error in the trial court’s action here.

Flores simply argues that since he has established that he cannot pay for a bond set at $125,000, such bond is unreasonable. Flores also argues that he has sufficient ties to the community to assure his remaining for an appearance at future court proceedings. The state argues that the proof is evident and the presumption is great that Flores is guilty of the crime as evidenced by a detailed five-page police report admitted into evidence. Neither Flores nor any member of his family owns property in the state. Neither he nor his wife has permanent employment. He is a citizen of Honduras and his parents reside there. The testimony at the April 19th hearing showed that Flores has a wife and child and that they have resided in South Florida for 10 years. Flores’ son attends school in Miami and his wife works part time and is studying cosmetology. Flores was unemployed at the time of his árrest but testified he has been offered employment by a relative upon his release from jail. Flores has never been arrested prior to this incident and has no criminal record in the United States or in his native country, Honduras. Flores also testified he is a churchgoer.

Appellate and trial courts have had considerable difficulty with the issue of bail and especially with the issue of the extent that money bail may be utilized to secure a defendant’s appearance. Jones v. Cunningham, 126 Fla. 333, 170 So. 663 (1936). Both the state and Flores cite Good v. Wille, 382 So.2d 408 (Fla. 4th DCA 1980), in support of their positions. In Good the Fourth District Court of Appeal held that there are several factors to be considered in determining the amount of bail:

In addition to the defendant’s financial circumstances, there are numerous criteria to be considered in setting bail and each case is dependent upon its individual facts. Factors to be considered in determining the amount of bail include the nature of the offense and the penalty for it, the character and strength of the evidence or probability of guilt, the probability of the accused appearing at trial, his accessibility to means of flight, his family ties and employment, the length and stability of his residence in the community, the prior record of the accused in responding to process, whether the accused was a fugitive from justice when arrested, whether the accused is under bond for appearance at trial in other cases, his respect for the law, the accused’s character and reputation, and the state of his health. Stansel v. State, 297 So.2d 63, 66 (Fla. 2d DCA 1974); State ex rel. Smith v. Untreiner, supra [246 So.2d 158] at 160 [Fla. 1st DCA 1971].

382 So.2d at 410.

It is the function of this court to weigh the reasonableness of the trial court’s determination as to the conditions of petitioner’s bail based upon the evidence that was before the trial court and the factors set out in Good v. Wille, supra. In our view error has not been demonstrated. Among the factors that the trial court could consider was that Flores was unemployed at the time of his arrest and only has the promise of a job if he is released. Further, he owns no property in the state and has only lived in apartments here. He is a citizen of Honduras and his parents live there. If he is convicted he faces a 15-year mandatory minimum prison term and a fine of $250,000. These are all factors indicating that Flores’ ties with Florida are not secure and that he has both the incentive, in the form of the possible penalties to be imposed, as well as the availability of a place, his homeland, to possibly flee if the cost of fleeing is not made substantial. In addition, although no formal preliminary determination was made of Flores’ guilt, the state placed before the trial court a detailed report indicating the existence of considerable evidence against him. There is no evidence to the contrary. This alleviates somewhat the seemingly unfair consequence of Flores being incarcerated before he has been found guilty of a crime.

In Good v. Wille, supra, the evidence showed that the petitioner was a local resident who resided in a condominium apartment which he owned. He further testified that he was self-employed in a part-time one-man rug business and had $7,000 in a bank account. These facts distinguish Good from the case at bar.

Accordingly, we hold that the decision of the trial court has not been demonstrated to be erroneous and we deny the petition for writ of habeas corpus.

LETTS and DELL, JJ., concur.


author: MILLS, Judge.

text:
    Randall Dean BROWNETT, Appellant, v. STATE of Florida, Appellee.
    No. AX-304.
    District Court of Appeal of Florida, First District.
    Aug. 22, 1984.
    Michael Allen, Public Defender, Glenna Joyce Reeves, Asst. Public Defender, for appellant.
    Jim Smith, Atty. Gen., Lawrence A. Ka-den, Asst. Atty. Gen., for appellee.
   MILLS, Judge.

This case is before us on Brownett's brief filed pursuant to Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967). Having reviewed the record and the parties’ briefs, we find no reversible error.

AFFIRMED.

BOOTH and BARFIELD, JJ., concur.


text:
    RAINBOW COMMUNITY HOSPITAL, INC., Appellant, v. DEPARTMENT OF HEALTH AND REHABILITATIVE SERVICES, and NME Hospitals, Inc., d/b/a Seven Rivers Community Hospital, Appellees.
    No. AX-19.
    District Court of Appeal of Florida, First District.
    Aug. 2, 1984.

      F. Philip Blank, Tallahassee, for appellant.
    Jay Adams, Asst. Gen. Counsel, Tallahassee, for appellee Dept, of HRS.
    C. Gary Williams arid Michael J. Glazer of Ausley, McMullen, McGehee, Carothers & Proctor, Tallahassee, for appellee NME.
   PER CURIAM.

We affirm the Department’s (Department of Health and Rehabilitative Services) denial of the appellant’s application for certificate of need to construct and operate an osteopathic hospital. The Department adopted the hearing officer’s recommended order. Although it is apparent from the hearing officer’s recommended order that the hearing officer failed to construe the requirements of Section 381.494(2), Florida Statutes, in accordance with this Court’s opinion in Gulf Coast Hospital, Inc. v. Department of Health and Rehabilitative Services, 424 So.2d 86 (Fla. 1st DCA 1982), such was harmless because examination of the record shows that the applicant/appellant failed to present competent substantial evidence demonstrating need for an osteopathic facility. Therefore, the hearing officer did not err in finding that no need for osteopathic beds was shown. It is the applicant’s burden to prove such need by competent substantial evidence.

THOMPSON, NIMMONS and BAR-FIELD, JJ., concur.