author: SHIVERS, Judge.

text:
    Milton E. MARSHALL, Appellant, v. STATE of Florida, Appellee.
    Nos. AR-100, AR-101.
    District Court of Appeal of Florida, First District.
    Nov. 16, 1983.
    Paula S. Saunders, Asst. Public Defender, Tallahassee, for appellant.
    Jim Smith, Atty. Gen., David P. Gauldin, Asst. Atty. Gen., Tallahassee, for appellee.
   SHIVERS, Judge.

Marshall appeals his conviction and sentence for escape. He argues that the trial court abused its discretion in denying his motion for continuance to allow further psychiatric examination to determine his competence to stand trial. We agree, reverse and remand.

Marshall was charged with escaping from the Okaloosa County jail. Appellant filed a motion for psychiatric examination to determine his competency to stand trial and sanity at the time of the alleged offense. On December 28, 1982, the trial court appointed two medical experts, Drs. Ramos and Phillips, to examine appellant. On January 10, 1983, defense counsel moved for a continuance. The motion was based on two grounds. First, although appellant was examined by the two psychiatrists on December 29, 1982, counsel had not yet received the doctors’ written reports. In a telephone conversation with the public defender’s office, the doctors stated that they could not make a determination of appellant’s sanity and competency to stand trial without further observation. Second, counsel requested adequate time to interview defense witnesses since the public defender had ascertained appellant’s version of the facts for the first time on January 9, 1983. Appellant had been uncooperative with the public defender prior to that time. The State objected to the continuance on the ground that it was appellant’s own actions and lack of cooperation which placed him in his position. The motion for continuance was denied on January 10, 1983.

That same day, a letter from the psychiatrists was received, and a competency hearing was held on January 11, 1983. In the letter, the doctors stated that appellant was reluctant to talk and that, although there was some hint of mental illness, the doctors could not reach a decision without more factual information from the court. The doctors stated, “It would be desirable if we could see the prisoner once more, once we have had that material at hand.” The letter was admitted in evidence along with a presentence investigation report filed in January 1980. The PSI report indicated that appellant had been examined by Dr. LaHue on March 8, 1979, and was found to be feigning mental illness at that time. Appellant testified at the competency hearing and said that he understood the nature of the charge of escape and partially understood the nature of the court proceedings. Appellant’s motion for continuance was renewed. The trial court found appellant competent to stand trial and denied the motion for continuance. Appellant proceeded to jury trial on January 11, 1983, and was found guilty.

Florida Rule of Criminal Procedure 3.211 requires that when experts have been appointed to examine a defendant under Rule 3.210, the experts shall consider whether the defendant has sufficient present ability to consult with his lawyer with a reasonable degree of rational understanding and whether he has a rational, as well as factual, understanding of the proceedings against him. Rule 3.211 requires that each of these issues be specifically addressed in the report of the examining experts. In the instant case, the experts appointed by the court reported that their examination of the appellant was inconclusive and that they needed more information about appellant and further observation of him in order to make a decision which would be helpful to the court. No written report complying with Rule 3.211 was submitted by the psychiatrists.

This case is controlled by Lane v. State, 388 So.2d 1022 (Fla.1980). In Lane there was also a motion for continuance by the defendant based on the ground that the defendant was insane at that time. At the hearing on the motion, a psychiatrist and psychologist testified that neither could determine whether the defendant was competent to stand trial and suggested that the appellant needed further examination for ten days to two weeks in order to determine competence. The State presented testimony of a psychiatrist who had examined the defendant almost a year earlier and found him competent at that time. The State expert refused to express a definite opinion on competence as of the date of the hearing. The trial court denied the motion for continuance, but the Florida Supreme Court reversed. The court stated:

In the instant case none of the three medical experts who testified at the continuance hearing were able to say that the appellant was competent to stand trial. The State urges that the appellant had previously been found competent, and that even if he was incompetent it was by his own actions. The finding of competence to stand trial made nine months prior to the hearing does not control in view of the evidence of possible incompetency presented by the experts at the hearing on the motion for continuance.

388 So.2d at 1025. In the instant case, the trial court abused its discretion in denying appellant's motion for continuance in the face of evidence that the court-appointed experts required more information and further observation of appellant to determine competency.

Accordingly, the judgment is reversed and the sentence is vacated. Appellant may be retried upon being found competent to stand trial pursuant to the Florida Rules of Criminal Procedure. This cause is remanded for further proceedings not inconsistent with this opinion.

MILLS and ZEHMER, JJ., concur.


source: Caselaw Access Project

author: ZEHMER, Judge. SHIVERS, Judge,

license: Public Domain

text:
    Leila J. EVANS, Guardian of the person and property of Virginia Searcy Barr, an incompetent, Appellant, v. Howard A. PARKER, a/k/a Howard A. Parker, Sr., Appellee.
    No. AR-304.
    District Court of Appeal of Florida, First District.
    Nov. 16, 1983.
    Michael Wm. Mead, Fort Walton Beach, for appellant.

      Richard H. Powell, of Estergren, Fortune, Anchors & Powell, Fort Walton Beach, for appellee.
   ZEHMER, Judge.

The issue in this case is whether the trial court erred in dismissing with prejudice Count I of appellant’s third amended counterclaim. We reverse.

In his motion to dismiss, appellee (Parker) contended that appellant’s (Barr’s) counterclaim was barred by the statute of limitations and the statute of frauds. Both are affirmative defenses which cannot properly be raised by a motion to dismiss unless the complaint affirmatively and clearly shows the conclusive applicability of such defense to bar the action. Rule 1.110(d), Florida Rules of Civil Procedure; e.g., Jackson Grain Co. v. Kemp, 177 So.2d 513 (Fla. 2d DCA 1965); Glass v. Armstrong, 330 So.2d 57 (Fla. 1st DCA 1976); 40 Fla.Jur.2d, Pleadings, §§ 171,172. For this reason, we must analyze Barr’s pleadings, construing the allegations most favorably to her position, to see if these defenses so clearly appear on the face of the counterclaim.

In the original complaint that commenced this action, Parker alleged that Barr had breached an oral contract made by them on May 1, 1974, concerning the conveyance of certain jointly owned property to one Clary to satisfy a debt owed by Barr to Clary. The complaint further alleged that Barr agreed to obtain an appraisal of the property and to pay the value of Parker’s proportional interest to him, but that Barr failed to do so. Thus, Parker sought damages for this amount.

In her answer, Barr denied the correctness of Parker’s allegations concerning the terms of their oral agreement. Construing Barr’s allegations most favorably for her, as we must, she alleged in her affirmative defense and counterclaim that at the time of the alleged transaction Parker was indebted to her for $50,000 attorney’s fees for services performed by her for Parker through the year 1972 and, further, that Parker’s execution of the deed and conveyance of the property pursuant to that oral agreement was in partial payment of this indebtedness. Thus, Barr contends, under the oral agreement of May 1, 1974, Parker was paying a debt he acknowledged owing to her and that he continues to owe her the remaining balance of that debt.

On this appeal, Parker contends that Barr’s cause of action asserted in the counterclaim accrued in 1972, more than four years before this action to enforce it was brought, and thus is barred by the applicable statute of limitations. Apparently, the trial court accepted this contention in granting the motion to dismiss, although the order of dismissal does not specify any particular ground.

We find it unnecessary at this stage to decide when Barr’s claim against Parker actually accrued. Because Barr’s counterclaim regarding the oral agreement appears to have arisen out of the same transaction as that alleged in Parker’s complaint, the counterclaim is best characterized as compulsory, i.e., in the nature of a claim for recoupment, and, therefore, is not barred by the statute of limitations. Cherney v. Moody, 413 So.2d 866 (Fla. 1st DCA 1982). Since the matters alleged in the counterclaim constitute a valid defense to Parker’s complaint, as well as a valid affirmative action for damages, the judgment for Parker must be reversed unless the dismissal of the counterclaim can be sustained under the statute of frauds defense.

The conclusive applicability of the statute of frauds likewise does not clearly and unequivocally appear on the face of the counterclaim.' It is axiomatic that partial performance of an oral contract removes such contract from the statute of frauds. 27 Fla.Jur.2d, Frauds, Statute of, § 12. There is a dispute as to the terms of and consideration for the alleged oral contract, and it is clear from the pleadings that the contract has been partially performed by reason of the conveyance. Accordingly, dismissal of the counterclaim cannot be sustained on this ground.

The remaining grounds in appellee’s motion to dismiss have not been urged on appeal as sufficient to support the order of dismissal.

The judgment is REVERSED and this case is REMANDED for further proceedings consistent with this opinion.

MILLS, J., concurs.

SHIVERS, J., dissents with opinion.

SHIVERS, Judge,

dissenting.

I dissent. I would affirm. The majority characterizes Barr’s counterclaim as compulsory, that is, in the nature of a claim for recoupment. I disagree and would characterize Barr’s counterclaim as permissive, thereby eliminating Barr’s claim since the applicable statute of limitations has run.

It is axiomatic that each case must be determined upon its particular facts to determine if a counterclaim is compulsory or permissive. In order for a counterclaim to be compulsory, it must arise out of the transaction or occurrence that is the subject matter of the opposing party’s claim. Rule 1.170, Fla.R.Civ.P. Thus, sub judice, if Barr’s and Parker’s demands sprang from the same transaction, Barr would have had to present her claim regardless of the amount and the jurisdiction of the court. See Metropolitan Casualty Ins. Co. of New York v. Walker, 151 Fla. 341, 9 So.2d 361, 362 (1942). It does not appear that Barr’s claim for legal services rendered from 1970 through 1972 sprang from the conveyance in 1974 of Parker’s interest in the property which was the subject matter of Parker’s suit. Rather, it appears Barr’s claim sprang from the rendering of such legal services, a separate transaction, the termination and rescission for payment of which occurred in December of 1972. The allegations of Barr’s counterclaim, therefore, are insufficient to demonstrate that Parker’s and Barr’s claims arose from one transaction, even giving that word the broad definition to which it is entitled. Metropolitan Casualty Ins. Co. of New York v. Walker, supra.

I also note that the operative facts and the issues raised by the respective parties’ claims are not largely the same. Barr’s counterclaim requires a prior determination of issues not raised by Parker’s complaint, e.g., whether legal services actually were rendered by Barr, whether a contract for such services existed, written or oral, and if so, the terms of this contract, and so forth.

For the above stated reasons, I would deem the counterclaim pleaded by Barr as permissive. As a result thereof, the statute of limitations would apply to Barr’s counterclaim asserted some seven years after her cause of action accrued on the alleged contract.

      . While the parties have not directly addressed the order striking Barr’s affirmative defense raising this same issue, our decision on the counterclaim makes that ruling erroneous also. Rule 1.110(d), Florida Rules of Civil Procedure, permits a designated counterclaim to be treated as a defense where appropriate.


author: ORFINGER, Chief Judge. DAUKSCH, Judge, SHARP, Judge,

text:
    In re The Marriage of June B. KEENAN, Appellant, v. Thomas P. KEENAN, Appellee.
    No. 82-881.
    District Court of Appeal of Florida, Fifth District.
    Nov. 17, 1983.

      James R. Dressier, Cocoa Beach, for appellant.
    No appearance for appellee.
   ORFINGER, Chief Judge.

This is an appeal from an order denying appellant’s petition for modification of a child support award. Modification was sought on the sole basis that the child, although arriving at age eighteen, was still in high school and thus “dependent” within the purview of section 743.07(2), Florida Statutes (1981). In order to maintain uniformity in this Court’s decisions, the court has, on its own motion, considered this case en banc. Fla.R.App.P. 9.331(a), (b).

Appellant June Keenan and Appellee Thomas Keenan were divorced on November 26, 1980. As part of the divorce judgment, appellee husband was required to pay child support for the parties’ son, Daniel Scott Keenan, in the amount of $110.00 per week, until further order of the court.

Mrs. Keenan filed a supplemental petition for modification of the alimony and child support in February, 1982, in which she alleged, inter alia, that although Daniel Scott Keenan would attain the age of eighteen on February 12, 1982, he was a full-time senior at Merritt Island High School and thus would “still be totally dependent” upon his parents for support. She requested continuation of such support until her son finished high school and received his diploma.

Mr. Keenan filed a response and a counter-petition and then filed a motion to terminate support payments on the ground that Daniel had attained eighteen years of age on February 12, 1982, and was no longer subject to support.

Based on stipulated facts, the court entered the order appealed from, which in pertinent part says;

DANIEL SCOTT KEENAN, born February 12, 1964 is currently 18 years of age, lives with Petitioner, JUNE B. KEENAN, his natural mother, is a full-time highschool [sic] student currently enrolled in the 12th grade at Merritt Island High-school [sic], Merritt Island, Florida and is without gainful employment except a part-time job which provides minimal income to him.
And the Court having heard argument of counsel for Petitioner and Respondent and no evidence being heard by the Court, the Court is of the opinion that DANIEL SCOTT KEENAN under the stipulated facts is not a dependent person and the Court is without jurisdiction to order Respondent, THOMAS P. KEENAN, to pay support for said child. It is thereupon

ORDERED AND ADJUDGED:

1. Respondent THOMAS P. KEENAN’s Motion to Terminate Support Payments for DANIEL SCOTT KEENAN be and the same is hereby granted and Respondent’s legal obligation to contribute to the support of DANIEL SCOTT KEENAN is terminated effective immediately.

Section 743.07, Florida Statutes (1973) was made effective July 1, 1973 and reduced the age of majority from twenty-one to eighteen. Two sections of that statute are pertinent here:

(2) This section shall not prohibit any court of competent jurisdiction from requiring support for a dependent person beyond the age of 18 years; and any crippled child as defined in chapter 391 shall receive benefits under the provisions of said chapter until age 21, the provisions of this section to the contrary notwithstanding.
(3) This section shall operate prospectively and not retrospectively, and shall not affect the rights and obligations existing prior to July 1, 1973.

Appellant’s contention that a child’s attendance at school, by itself, makes that child “dependent” although the child is past the age of eighteen, was addressed by this court in Thomas v. Thomas, 427 So.2d 259 (Fla. 5th DCA 1983). Reversing a trial court determination that children older than eighteen were nevertheless dependent while they were full time college students, this court said:

In the instant case, it is clear that the final judgment of dissolution was entered well after the effective date of the statute, allowing for a duty to support only until age 18 absent a showing of dependency. The children here were ages 15 and 11 at the time the final judgment was entered, with no physical or mental deficiencies present in the record. The trial court allowed child support in the form of the use and possession of the marital home by the custodial parent to continue beyond majority as long as the youngest child was in college. The trial court apparently saw the attendance at college as a form of dependency, requiring the additional support. We disagree. Generally, the obligation of a parent to support a child ceases when the child reaches majority, but an exception arises when the child, because of physical or mental deficiencies, is unable to support himself. Perla v. Perla, 58 So.2d 689 (Fla.1952). Attendance at college does not rise to the level of dependence envisioned by the Supreme Court in Perla, so as to require a divorced parent to pay for a child’s education. This view has been adopted by the other district courts of appeal in this state, despite dictum to the contrary found in Finn. This comports with the principle that a divorced parent does not have a greater legal obligation to his child than does a parent who has not been divorced. Here, there has been no showing of any dependency as that term is defined by Perla, and the mere fact that children are in college cannot allow support beyond majority to continue. [footnote omitted].

Id. at 260.

Appellant relies on this court’s decision in Owens v. Owens, 415 So.2d 855 (Fla. 5th DCA 1982) as support for her position. In Owens, this court held that a divorced father could be required to support a child who had attained eighteen years of age and who was still in school, relying on Finn v. Finn, 312 So.2d 726 (Fla.1975). In Owens, as in Finn, however, the final judgment of divorce had been rendered prior to July 1, 1973 (the date on which the law reducing the age of majority to eighteen become effective), and both Finn and Owens were bottomed on the proposition that final judgments of divorce rendered when the age of majority was twenty-one would continue to require support to age twenty-one, regardless of the amendment to section 743.07 reducing the age of majority to eighteen. Thus, Owens is correct in relying on Finn for that conclusion. See also, Archer v. Archer, 427 So.2d 325 (Fla. 2d DCA 1983). However, the language in Owens, as in Finn, to the effect that a child otherwise healthy and intelligent who reaches age eighteen is nevertheless a dependent child “because he cannot support himself and properly attend to his high school duties at the same time” is pure dictum, and finds no support in any other decision in this state.

Appellant’s position, as does the dictum in Owens, attempts to convert a moral obligation to a legal obligation. There is nothing in the law which, since July 1,1973, imposes a legal obligation of support upon a parent, married or divorced, of a child who attains age 18 and who is neither physically nor mentally disabled. Because there is no authority for a healthy, able-bodied child of undivorced parents to demand (through suit, if necessary) that his parents provide him with an education past age 16 [see, section 232.01(l)(c), Florida Statutes (1981) ] or any type of support beyond age 18, there cannot exist a rule of law that permits a domestic relations judge to create and enforce special duties of support in favor of equally healthy and able-bodied children of divorced parents, once those children reach age 18. Owens, supra (Cowart, J., dissenting).

While we firmly believe that parents, divorced or undivorced should provide their children with as much formal education as each child can absorb and the parents can afford, this court cannot create a legal duty to do so where none exists. That power rests in the legislature. Other courts apparently share this view. Kern v. Kern, 360 So.2d 482 (Fla. 4th DCA 1978); Dwyer v. Dwyer, 327 So.2d 74 (Fla. 1st DCA 1976); Krogen v. Krogen, 320 So.2d 483 (Fla. 3d DCA 1975). See also Coalla v. Coalla, 330 So.2d 802 (Fla. 2d DCA 1976), where the court struck down a requirement that the father provide support to children past the age of 18 while such “children continue in school or college ...”

The trial court correctly held that it could not award child support to appellant after the child had attained age eighteen, merely because he was still in school, so the order appealed from is

AFFIRMED.

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

DAUKSCH and SHARP, JJ., dissent with opinions.

DAUKSCH, Judge,

dissenting:

I respectfully dissent for the reasons set out in Owens v. Owens, 415 So.2d 855 (Fla. 5th DCA 1982).

SHARP, Judge,

dissenting.

I respectfully dissent. It is now time to focus the law in conformity with morality (as the majority says) or with reality (I would say).

In Owens v. Owens, 415 So.2d 855 (Fla. 5th DCA 1982), we held that a healthy, intelligent, part-time employed eighteen year old who was in the process of completing his final year of high school, but who was necessitous of continuing parental support in order to be able to complete his high school education, was a dependent child within the meaning of section 743.07(2), Florida Statutes (1981). Although the dissolution judgment in that case predated 1973, the modification which was being appealed and which increased the child support payments was post-1973. Therefore, Owens cannot be dismissed as a pre-1973 dissolution case.

The present case is distinguishable from Thomas v. Thomas, 427 So.2d 259 (Fla. 5th DCA 1983), and other cases cited therein, because Thomas concerned the duty of a divorced parent to provide his child with a college education, as opposed to a high school education. Reality and common sense tells one, if he is alert and listening, that a person who does not have a high school diploma or a G.E.D. certificate in today’s job market will surely be relegated to the lowest paying, most menial of jobs, if any can be found.

For the reasons stated in Nicolay v. Nicolay, 387 So.2d 500 (Fla. 2d DCA 1980), and the famous dictum in Finn v. Finn, 312 So.2d 726 (Fla.1975), 1 think a normal child seeking to complete high school, who cannot do so without parental support is “dependent” within the meaning of section 743.-07(2), Florida Statutes (1981), because without a high school diploma in today’s job market, such young person is at such a great disadvantage, he or she might as well be mentally retarded or physically handicapped. The State of Florida recognizes this reality in its definition of “dependent child” in Chapter 409 and in its commitment to continue to provide the services of the foster care program to “individuals 18 to 21 years of age who are enrolled in high school or enrolled in a program leading to a high school equivalency diploma. Should not parents, divorced or not, be held to as high a standard?

      . The Florida Supreme Court said in Finn v. Finn, 312 So.2d 726, 731 (Fla.1975):
      The conclusion in White v. White [296 So.2d 619] supra, that “a dependent person” is limited to one who is dependent because of physical or mental incompetence or inability is much too narrow.

      . Section 409.2554(2), Florida Statutes (Supp. 1982), provides:
      “Dependent child” means any person under the age of 18, or under the age of 21 and still in school, who has been deprived of parental support or care by reason of death, continued absence from the home, or physical or mental incapacity of a parent.

      . § 409.145(3)(a), Fla.Stat. (1981).


author: COBB, Judge.

text:
    Kathy Ruth OVIATT, Appellant, v. STATE of Florida, Appellee.
    No. 82-1079.
    District Court of Appeal of Florida, Fifth District.
    Nov. 17, 1983.
    James B. Gibson, Public Defender, and David A. Henson, Asst. Public Defender, Daytona Beach, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Richard W. Prospect, Asst. Atty. Gen., Day-tona Beach, for appellee.
   COBB, Judge.

The appellant, Kathy Ruth Oviatt, was convicted of the attempted first-degree murder with a firearm of her eight-year-old daughter, Pamela, who was the key state witness at trial. Although various points are raised on appeal, we feel that only one merits discussion: the propriety of a pretrial order in limine precluding defense counsel from making a statement to Pamela prior to trial to the effect that her mother might go to jail as the result of her testimony-

In support of its motion in limine, the state argued that such information was irrelevant and could only serve to prejudice the eight-year-old child or to dissuade her' from testifying altogether. The defendant contends that the order was an unreasonable restraint on her Sixth Amendment confrontation right. In her brief, the appellant argues, “Liberal cross-examination should have been permitted as a means of testing the witness’ believability and lack of bias.”

The argument of the defense is unconvincing. It simply is not reasonable to assume that an impressionable child will become more, rather than less, truthful because of a calculated suggestion by an adversarial lawyer that her testimony will seriously hurt her own mother. Cf., State v. Fetherolf, 388 So.2d 38 (Fla. 5th DCA 1980). Moreover, the order in no way prevented any cross-examination at trial. The order reads:

The state’s motion in limine is granted and defense counsel shall make no statement prior to trial to the victim, Pamela Oviatt, to the effect that defendant, her mother, might go to jail as the result of the victim’s testimony.

Obviously, the order only sought to prevent pre-trial intimidation of a vulnerable minor witness. As noted in numerous Florida cases, the trial judge has considerable discretion in his control of the scope of examination and cross-examination of witnesses. Jones v. State, 440 So.2d 570 (Fla.1983); Maggard v. State, 399 So.2d 973 (Fla.), cert. denied, 454 U.S. 1059, 102 S.Ct. 610, 70 L.Ed.2d 598 (1981); Coxwell v. State, 361 So.2d 148 (Fla.1978). In this case, we find no abuse of that broad discretion.

AFFIRMED.

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


author: SHARP, Judge.

text:
    In re the Interest of C.L.C., a Child. STATE of Florida, DEPARTMENT OF HEALTH AND REHABILITATIVE SERVICES, Appellant, v. WITHLACOOCHEE AREA LEGAL SERVICES, INC., Appellee.
    No. 83-292.
    District Court of Appeal of Florida, Fifth District.
    Nov. 17, 1983.
    James A. Sawyer, Jr., Gainesville, for appellant.
    Tommy K. Blackmon, Brooksville, for ap-pellee.
   SHARP, Judge.

The Department of Health and Rehabilitative Services (HRS) appeals from a trial court order requiring it to pay Withlacoo-chee Area Legal Services (Legal Services) three thousand six hundred thirty-one dollars five cents ($3,631.05) for attorney’s fees and costs. HRS brought a proceeding in the lower court to permanently sever the parental rights of C.L.C.’s mother, Linda Conley, so that the child could be placed for adoption. The court appointed Legal Services to represent Linda Conley in that law suit and the fees awarded relate to Legal Services’ efforts on her behalf.

On appeal both parties concede that there is no statute or other basis upon which to base the award of attorney’s fees against HRS. Indigent parents, like Linda Conley, have a constitutional right to be furnished counsel in permanent commitment proceedings which may result in the permanent severance of their parental rights. In Re D.B. and D.S., 385 So.2d 83 (Fla.1980). However, in such cases, the county, not HRS, is responsible for the payment of the legal fees for appointed counsel. In Re D.B. and D.S.; § 43.28, Fla.Stat. (1981).

Accordingly, the order awarding attorney’s fees is

REVERSED.

DAUKSCH, J., and SCOTT, Associate Judge, concur.


author: PER CURIAM.

text:
    Bobbie Lee KING, Jr., Appellant, v. STATE of Florida, Appellee.
    No. 83-693.
    District Court of Appeal of Florida, Fifth District.
    Nov. 17, 1983.
    James B. Gibson, Public Defender, and Lucinda H. Young, Asst. Public Defender, Daytona Beach, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Kenneth McLaughlin, Asst. Atty. Gen., Daytona Beach, for appellee.
   PER CURIAM.

Affirmed. See Hampton v. State, 399 So.2d 441 (Fla. 5th DCA 1981).

ORFINGER, C.J., and DAUKSCH and SHARP, JJ., concur.


author: RYDER, Acting Chief Judge.

text:
    Elizabeth F. SIMPSON, Appellant, v. James Warren SIMPSON, Jr., Appellee.
    No. 83-31.
    District Court of Appeal of Florida, Second District.
    Nov. 18, 1983.

      Robert L. Donald and Michael A. Genna-ro of Pavese, Shields, Garner, Haverfield, Dalton & Cottrell, Fort Myers, for appellant.
    Karl L. Johnson of Nuckolls & Johnson, Fort Myers, for appellee.
   RYDER, Acting Chief Judge.

Elizabeth Simpson has raised two issues in this appeal, only one of which requires reversal. We affirm the trial court’s decision except as to the award of attorney’s fees to Mrs. Simpson’s legal counsel.

The trial court ordered Mr. Simpson to pay to Mrs. Simpson’s attorneys $300.00 as partial payment of her attorneys’ fees. There is no evidence in the record concerning the reasonableness of that award. Dickerson v. Dickerson, 395 So.2d 1252 (Fla. 1st DCA 1981); Tanner v. Tanner, 391 So.2d 305 (Fla. 4th DCA 1980); Feldman v. Feldman, 390 So.2d 1231 (Fla. 3d DCA 1980). Both parties concede that the trial court erred in awarding the fees without taking evidence as to reasonableness.

We, therefore, remand this cause for the taking of evidence pertinent to a determination of Mrs. Simpson’s need for, and Mr. Simpson’s ability to pay, an award of attorneys’ fees to Mrs. Simpson’s counsel, as well as a determination of a reasonable amount of attorneys’ fees if it is found that Mr. Simpson is to pay for any part of Mrs. Simpson’s attorneys’ fees.

AFFIRMED in part, REVERSED in part, and REMANDED.

DANAHY and LEHAN, JJ., concur.


author: LEHAN, Judge.

text:
    Robert J. DOWNING, Appellant, v. PRUDENTIAL INSURANCE COMPANY OF AMERICA, a corporation, Appellee.
    No. 83-335.
    District Court of Appeal of Florida, Second District.
    Nov. 18, 1983.
    Bruce D. Frankel of Goldberg, Rubinstein & Buckley, P.A., Fort Myers, for appellant.
    Charles W. Pittman of MacFarlane, Ferguson, Allison & Kelly, Tampa, for appellee.
   LEHAN, Judge.

• After suffering injuries in an automobile accident that occurred approximately thirteen days after termination of his employment, appellant sought continued insurance coverage under a conversion of his employer’s group policy pursuant to section 627.-6675, Florida Statutes (1981). To fulfill the statutory requirements for entitlement to such coverage, it was necessary for appellant to apply for the coverage within 81 days of his termination. Appellant did not do so.

AFFIRMED.

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


author: OTT, Chief Judge.

text:
    Michael C. CIRIO, Appellant, v. STATE of Florida, Appellee.
    No. 83-400.
    District Court of Appeal of Florida, Second District.
    Nov. 18, 1983.
    Jerry Hill, Public Defender, and Paul C. Helm, Asst. Public Defender, Bartow, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Charles Corees, Jr., Asst. Atty. Gen., Tampa, for appellee.
   OTT, Chief Judge.

Michael Cirio appeals from his conviction of burglary. As his sole point on appeal, defendant contends that there was no valid waiver of his right to a jury trial.

Defendant appeared with his counsel at a pretrial hearing and the following occurred:

MR. BENITO: The Public Defender represents Michael Cirio.
THE COURT: Mr. Crompton, as I understand, your client is present and you do waive trial by jury?
MR. CROMPTON: Yes, sir, and request a nonjury trial date.
THE COURT: 12/9.
MR. CROMPTON: Thank you.

The trial court did not inquire of defendant personally as to whether he understood his right to a jury trial and whether he had voluntarily agreed to waive that right. No written waiver of defendant’s right to a jury trial was executed.

A defendant’s knowing, voluntary, and intelligent waiver of a jury trial must be shown affirmatively from the record below. Johnson v. State, 411 So.2d 1023 (Fla. 2d DCA 1982). In the instant case, there is no evidence to indicate a valid waiver. Accordingly, defendant’s conviction must be reversed. Johnson. See also Tosta v. State, 352 So.2d 526 (Fla. 4th DCA 1977), cert. denied, 366 So.2d 885 (Fla.1978).

REVERSED.

SCHEB and DANAHY, JJ., concur.


text:
    Vernon REID, Appellant, v. STATE of Florida, Appellee.
    No. 83-428.
    District Court of Appeal of Florida, Second District.
    Nov. 18, 1983.
    Jerry Hill, Public Defender, Bartow, and Allyn Giambalvo, Asst. Public Defender, Clearwater, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Katherine V. Blanco, Tampa, for appellee.
   LEHAN, Judge.

Defendant appeals the sentences imposed upon him by the trial court. For a conviction of burglary with assault, the trial court sentenced defendant to 50 years imprisonment and retained jurisdiction for 25 years. For the conviction of attempted sexual battery with force likely to cause serious personal injury, the court sentenced defendant to 30 years imprisonment and retained jurisdiction for ten years. The sentences are to run concurrently.

Defendant’s first point on appeal is that the 30 year sentence on the attempted sexual battery charge is in excess of the legal maximum sentence. We agree. Defendant was convicted of attempted sexual battery with force likely to cause serious personal injury. Section 794.011(3), Florida Statutes (1981), provides that a person who uses physical force likely to cause serious personal injury while committing a sexual battery is guilty of a life felony. Section 777.04(4)(b) provides that an attempt to commit a life felony is classified and punished as a second degree felony. Under section 775.082(3)(c) the maximum sentence for a second degree felony is 15 years imprisonment. Thus, the sentence of 30 years for defendant’s conviction of attempted sexual battery is in excess of the legal maximum sentence. On remand, defendant should be resentenced to no more than 15 years imprisonment.

As his second point on appeal, defendant contends that the trial court improperly retained jurisdiction over one-half of the 50 year sentence for the conviction of burglary with assault. We agree. The 1982 amendment to section 947.16(3), Florida Statutes, allows a court to retain jurisdiction for one-half of a sentence. However, the effective date of that amendment was April 20, 1982, and the date of the offense in this case was April 17, 1982. Retention of jurisdiction for one-half of defendant’s sentence would be an ex post facto application of the 1982 amendment; the trial court should resentence defendant and retain jurisdiction over not more than one-third of the total consecutive sentences imposed. Wicker v. State, 438 So.2d 398 (Fla. 2d DCA, 1983).

REVERSED AND REMANDED.

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


text:
    FIRST FEDERAL SAVINGS & LOAN ASSOCIATION OF FORT MYERS, Appellant, v. Herman J. FOX, Clover G. Fox and Teresa A. Hoermann, Appellees.
    No. 83-485.
    District Court of Appeal of Florida, Second District.
    Nov. 18, 1983.
    Gerald W. Pierce of Henderson, Franklin, Starnes & Holt, Fort Myers, for appellant.
    E. Glenn Tucker, Marco Island, Jackson L. Boughner, P.A., Naples, for appellees.
   RYDER, Acting Chief Judge.

This is an appeal from an order dismissing a complaint in an action to foreclose a mortgage.

First Federal Savings & Loan Association of Ft. Myers (Federal) sought to foreclose a mortgage on real property held by Herman J. Fox and Clover G. Fox. The Foxes had executed and delivered a note and mortgage to Federal on August 3, 1978. The mortgage agreement was recorded on August 4, 1978 in Collier County.

Paragraph 17 of the mortgage agreement provided in relevant part:

If all or any part of the Property or an interest therein is sold or transferred by Borrower without Lender’s prior written consent, excluding (a) the creation of a lien or encumbrance subordinate to this Mortgage, (b) the creation of a purchase money security interest for household appliances, (c) a transfer by devise, descent or by operation of law upon the death of a joint tenant, or (d) the grant of any leasehold interest of three years or less not containing an option to purchase, Lender may, at Lender’s option, declare all the sums secured by this Mortgage to be immediately due and payable.

The complaint alleged that on April 28, 1981, the Foxes executed and delivered “an agreement for deed,” by the terms of which they agreed to convey to Teresa A. Hoer-mann the real property subject to the mortgage agreement. The complaint further alleged that the “agreement for deed” was recorded on April 30,1981 in Collier County. Further, the complaint alleged that Hoer-mann subsequently took possession of the property and held possession at the time the suit was filed. Finally, the complaint alleged that the Foxes did not obtain Federal’s written consent prior to the transfer.

Federal concluded that the Foxes defaulted under the note and mortgage by violating paragraph 17 of the agreement in that they sold or transferred an interest in the property by executing the “agreement for deed” without Federal’s prior written consent. Federal, therefore, demanded all sums due on the note and mortgage.

The Foxes filed a motion to dismiss, contending that the execution and delivery of an “agreement for deed” did not constitute a sale or transfer of an interest in the property. The trial court granted the motion to dismiss with prejudice. A timely notice of appeal was filed. We reverse.

Apparently, the trial court, in issuing its order to dismiss, relied heavily upon Chopan v. Klinkman, 330 So.2d 154 (Fla. 4th DCA 1976). Chopan is inapplicable as applied to the facts of this case. The due-on-sale clause in Chopan provided that the mortgage would accelerate the balance if the property was “sold.” In the case sub judi-ce, however, the clause in question is different in that it permits acceleration of the balance upon the transfer of an interest. It is not limited to an actual sale of the property.

The parties to an agreement for deed are in essentially the same position as if the vendor had transferred the legal title and taken back a purchase money mortgage. H & L Land Co., Inc. v. Warner, 258 So.2d 293, 295 (Fla. 2d DCA 1972). There, the vendee became the equitable owner of the land and the vendor held the bare legal title to the land as security for the vendee’s performance. Warner; Mid-State Investment Corp. v. O’Steen, 133 So.2d 455 (Fla. 1st DCA 1961). Furthermore, under an agreement for deed, the vendor has no legal right to repossess the property and has no legal right to trespass on the property. O’Steen at 457. As the agreement for deed is essentially a security interest which takes the place of the more traditional purchase money mortgage, the vendee has an equity of redemption in the property. Adkinson v. Nyberg, 344 So.2d 614 (Fla. 2d DCA 1977); Hoffman v. Semet, 316 So.2d 649 (Fla. 4th DCA 1975). The vendor under an agreement for deed transfers all of his interest in the property except for bare legal title. Cain & Bultman, Inc. v. Miss Sam, Inc., 409 So.2d 114 (Fla. 5th DCA 1982).

The legal effect of this transaction in the case sub judice would permit the mortgagor to accomplish indirectly something which the mortgagor cannot accomplish directly in that it would provide a device by which a mortgagor could circumvent the plain meaning of the mortgage contract. Fidelity Federal Savings & Loan Association v. de la Cuesta, 458 U.S. 141, 102 S.Ct. 3014, 73 L.Ed.2d 664 (1982). See also First Home Federal Savings & Loan Association v. Nance, 436 So.2d 163 (Fla. 2d DCA 1983).

Accordingly, we hold that an agreement for deed is a transfer of an interest in real estate and by executing such a document in favor of Hoermann, the Foxes violated the terms of paragraph 17 of the mortgage agreement. Thus, the court below erred in granting the motion to dismiss.

The order appealed from is REVERSED and the cause REMANDED for further proceedings consistent herewith.

DANAHY and LEHAN, JJ., concur.


author: RYDER, Judge.

text:
    Robert REESE, Appellant, v. STATE of Florida, Appellee.
    No. 83-680.
    District Court of Appeal of Florida, Second District.
    Nov. 18, 1983.
    Jerry Hill, Public Defender, Bartow and Deborah K. Brueckheimer, Asst. Public Defender, Clearwater, for appellant.
    Jim Smith, Atty. Gen., Tallahassee and Charles Corees, Jr., Asst. Atty. Gen., Tampa, for appellee.
   RYDER, Judge.

Following denial of his motion to dismiss, Robert Reese pleaded nolo contendere to the charge of obstruction by false information, a violation of section 843.185 [renumbered section 843.035, Florida Statutes (Supp.1982) ]. Reese reserved the right to appeal the denial of that motion.

The argument made in the motion to dismiss and presented on appeal concerns the constitutionality of section 843.185. Reese maintains that chapter 82-150, Laws of Florida, which created section 843.185 and modified the Florida Council on Criminal Justice, violates Article III, Section 6 of the Florida Constitution. Article III, Section 6 requires, inter alia, that “every law shall embrace but one subject and matter properly connected therewith.”

This court has recently considered the identical issue now presented. In State v. Bunnell, No. 83-430 (Fla.2d DCA July 6, 1983), we upheld the constitutionality of section 843.185. See also Lowe v. State, 435 So.2d 371 (Fla. 2d DCA 1983). Therefore, we AFFIRM the trial court’s denial of Reese’s motion to dismiss. Judgment and sentence is also AFFIRMED.

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


text:
    Shirley Amanda SMITH, Appellant, v. STATE of Florida, Appellee.
    No. 83-891.
    District Court of Appeal of Florida, Second District.
    Nov. 18, 1983.
    Jerry Hill, Public Defender, and Paul C. Helm, Asst. Public Defender, Bartow, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Katherine V. Blanco, Asst. Atty. Gen., Tampa, for appellee.
   PER CURIAM.

Dismissed without prejudice to defendant’s right to file a motion for postconviction relief pursuant to Florida Rule of Criminal Procedure 3.850. See Counts v. State, 376 So.2d 59 (Fla. 2d DCA 1979).

OTT, C.J., and SCHEB and DANAHY, JJ., concur.


author: SCHEB, Judge.

text:
    Zachary SWIFT, Appellant, v. STATE of Florida, Appellee.
    No. 83-1122.
    District Court of Appeal of Florida, Second District.
    Nov. 18, 1983.
    Jerry Hill, Public Defender, and Michael E. Raiden, Asst. Public Defender, Bartow, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Robert J. Krauss, Asst. Atty. Gen., Tampa, for appellee.
   SCHEB, Judge.

Zachary Swift appeals the order revoking his probation and subsequent judgment and sentence for grand theft. Swift contends that the trial court failed to make sufficient inquiry prior to accepting his waiver of counsel at the probation revocation hearing. We agree and reverse.

Swift was originally convicted of grand theft and placed on probation for five years. The trial court adjudged him insolvent at that time. Swift subsequently failed to comply with several technical conditions of his probation. The trial court restored his probation but modified the conditions to include six months imprisonment and completion of the program at the Lake-land Probation and Restitution Center. The trial court again adjudged Swift insolvent.

Six months later Swift was charged with failing to participate in the required program at the Restitution Center. At the hearing to determine if his probation should be revoked, Swift informed the court that he did not want an attorney to represent him. The trial court explained to him that he could be sent to prison as a result of the hearing. Further, the court informed him that he was entitled to representation by an attorney, and that an attorney would be appointed if he could not afford one. The court, however, did not inform Swift of the disadvantages of self-representation, nor did it determine whether the waiver was made voluntarily and intelligently. Finally, the court did not determine whether Swift would be deprived of a fair hearing if permitted to represent himself.

The court accepted Swift’s plea of guilty to the violation, revoked his probation, and sentenced him to three-years imprisonment as a youthful offender. The court did appoint the public defender to represent Swift on appeal.

In Smith v. State, 427 So.2d 773 (Fla. 2d DCA 1983), this court held that a probationer is entitled to counsel at a revocation hearing even if he does not wish to deny the charges. See also Van Cleaf v. State, 328 So.2d 568 (Fla. 2d DCA 1976). Furthermore, if a probationer wishes to waive his right to counsel, the “trial court must inquire as to the validity of any waiver of counsel pursuant to the requirements set forth in Williams v. State, 427 So.2d 768 (Fla. 2d DCA 1983), and Florida Rule of Criminal Procedure 3.111(d).” Mullins v. State, 438 So.2d 908 (Fla. 2d DCA 1983).

Here, the trial court failed to inform Swift of the disadvantages of self-representation and to make the necessary inquiry and determination to the extent required in Williams v. State. Therefore, we reverse the order revoking Swift’s probation and the judgment and sentence for grand theft. We remand for a new hearing on the alleged violation of Swift’s probation.

OTT, C.J., and DANAHY, J., concur.


text:
    Eddie DIGGS, Appellant, v. STATE of Florida, Appellee.
    No. 83-1696.
    District Court of Appeal of Florida, Second District.
    Nov. 18, 1983.
   PER CURIAM.

Eddie Diggs appeals an order summarily denying his motion for post-conviction relief under Florida Rule of Criminal Procedure 3.850. We affirm in part, reverse in part, and remand.

In his Rule 3.850 motion, appellant alleged, inter alia, that he was denied effective assistance of counsel as a result of his attorney’s decision at the outset of trial to stipulate to the state’s oral motion in limine to not inquire of Tampa Police Officer Dana L. Singer, a chief witness for the prosecution, regarding a disciplinary matter which may have damaged Singer’s credibility. Such claim, if true, might entitle appellant to relief. However, the court below neither held an evidentiary hearing with respect to this allegation nor attached to its summary order portions of the record below which conclusively refute the allegation.

Accordingly, we reverse in part the order summarily denying appellant’s Rule 3.850 motion and remand with instructions that the court below either summarily deny the motion again as to the aforementioned allegation and, if so, attach portions of the record below which conclusively demonstrate that appellant is not entitled to relief with respect to that allegation, or, if the record does not definitely refute the allegation, conduct an evidentiary hearing in order to determine whether he is entitled to relief as to the allegation. In all other respects we affirm. In order to obtain any further review of any subsequent ruling of the court below, the aggrieved party must appeal anew.

AFFIRMED in PART, REVERSED in PART, and REMANDED.

HOBSON, A.C.J., and RYDER and CAMPBELL, JJ., concur.


text:
    William Randolph KLEIN, Petitioner, v. Jay M. LANCER, Respondent.
    No. 88-1803.
    District Court of Appeal of Florida, Second District.
    Nov. 18, 1983.
    Michael J. Keane of John T. Allen, Jr., P.A., St. Petersburg, for petitioner.
    Ronald L. Collier of Abel, Band, Brown, Russell & Collier, Chartered, Alan D. Bennett, Sarasota, and Mark R. Lewis, St. Pe-tersburg, for respondent.
   PER CURIAM.

On this petition for writ of certiorari we are asked to limit the scope of pretrial discovery on the basis that some of the documents that respondent has requested to be produced by petitioner (an attorney) would violate the attorney-client privilege.

This court previously granted a petition for certiorari in this case and held that certain materials requested in respondent’s notice to produce were overbroad and irrelevant. Klein v. Lancer, 436 So.2d 137 (Fla. 2d DCA 1983). There is now apparently some doubt by the parties and the trial court as to whether further limitation of discovery by the trial court on the grounds of attorney-client privilege is foreclosed by this court’s previous opinion dealing with limits on discovery.

The issue of attorney-client privilege was not raised in the prior petition, and this court did not consider or decide that issue. The trial court should consider whether any of respondent’s requests for production would violate the attorney-client privilege and take appropriate action.

The petition for writ of certiorari is denied.

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


author: MILLS, Judge.

text:
    McCord Wayne PITTMAN, Anthony David Mond, Jeffrey Allen Russell, Enos Leroy Russell and Ernest Clifford Russell, Appellants, v. STATE of Florida, Appellee.
    No. AQ-54.
    District Court of Appeal of Florida, First District.
    Nov. 18, 1983.

      Michael Allen, Public Defender, David J. Busch, Asst. Public Defender, for appellants.
    Jim Smith, Atty. Gen., Wallace E. All-britton, Asst. Atty. Gen., for appellee.
   MILLS, Judge.

In this criminal action, the issues on appeal relate to whether the trial court abused its discretion in limiting the amount of time for closing argument, whether one of the defendants should have been allowed to have the concluding argument before the jury, and whether the trial court should have charged the jury on a defendant’s right to resist the use of unlawful or excessive force when being arrested.

On the night in question, deputies from the Bay County Sheriffs Department twice responded to neighbors’ complaints about a noisy party at a young woman’s house. After being greeted at the door with profanity upon their second visit, the deputies declared the party an “unlawful assembly” and ordered the partygoers to disperse. A fracas broke out at that point. Arrested and charged with violating Section 843.01, Florida Statutes (1981), were Anthony David Mond, Jeffrey Alan Russell, Enos Leroy Russell, James Edward Schmidt, McCord Wayne Pittman, Thomas Michael Llewellyn, and Ernest Clifford Russell. In addition to these charges, Llewellyn was charged with grand theft in the taking of a deputy’s flashlight, and Mond was charged with grand theft in the taking of a deputy’s walkie talkie.

All seven defendants were tried together; all were represented by the same attorney. At the conclusion of a lengthy trial, the trial court, over objection by defense counsel, limited the time for closing argument to 30 minutes. The defense attorney also asserted on behalf of Schmidt that, pursuant to Rule 3.250, Florida Rules of Criminal Procedure, he was entitled to the concluding argument before the jury because Schmidt presented no evidence other than his own testimony. He further orally requested a jury instruction on the defendants’ right to defend themselves against the use of unlawful force by the deputies. That request was denied, and the trial court gave Florida Standard Jury Instruction 3.04(d).

Pittman; Mond, and E.L. Russell were convicted for violating Section 843.01, Florida Statutes (1981). E.C. Russell, J.A. Russell, and Schmidt were convicted for violating Section 843.02, Florida Statutes (1981). Both Mond and Llewellyn were acquitted on the grand theft charges. (Llewellyn was also convicted for violating Section 843.02. However, he had previously pled nolo con-tendere in county court to the identical charge arising out of the same incident. The trial court therefore dismissed the circuit court conviction.) This timely appeal followed the trial court’s denial of the defendants’ motion for new trial.

Generally, the time allowed for closing argument by counsel is within the discretion of the trial court. May v. State, 89 Fla. 78, 103 So. 115 (1925). That discretion is not unbridled, however, and reversal is required where the time for argument is unreasonably limited. What amounts to a reasonable time depends upon the facts and circumstances of each case. Id.

In May, it was held that limitation of argument to 20 minutes was an abuse of discretion considering the severity of the potential sentence, the sharp conflicts in testimony, and the number of witnesses testifying. In Cooper v. State, 106 Fla. 254, 143 So. 217 (1932), it was held that limiting closing argument to five minutes was, on its face, an abuse of discretion. A limitation of closing argument to 30 minutes was held not to be an abuse of discretion in McDuffee v. State, 55 Fla. 125, 46 So. 721 (1908). However, the Florida Supreme Court noted in that case that the trial was short, that the transcript covered only eleven pages, and that only four witnesses testified for each side.

In the instant case, there were a total of 33 witnesses. There were seven different defendants, each of whom was charged with a third degree felony, and two of whom were charged with two third degree felonies. Counting voir dire, this trial took approximately four days and covered over 700 pages of transcript. In view of the foregoing facts and authority, limitation of argument in this case to 30 minutes was an abuse of discretion, and we are compelled to reverse and remand for a new trial.

In so doing, we do not decide the issue of whether Schmidt was entitled to the concluding argument before the jury because he is not a party to this appeal. All seven defendants moved for a new trial, and one of the matters assigned as error was the trial court’s failure to allow Schmidt to have the concluding argument. That motion was denied as to six of the defendants, but the trial court postponed ruling on the motion as it pertained to Schmidt until it could be determined whether he had presented any evidence in his behalf other than his own testimony. The notice of appeal does not name Schmidt as an appellant. Therefore, Schmidt’s motion for new trial- is apparently still before the trial court.

Finally, for the benefit of the trial court and counsel upon remand, we note that this Court has now declared to be erroneous that portion of Florida Standard Jury Instruction 3.04(d) which states that a person is never justified in the use of any force to resist arrest. Ivester v. State, 398 So.2d 926 (Fla. 1st DCA 1981); Allen v. State, 424 So.2d 101 (Fla. 1st DCA 1982). However, when counsel requests a jury instruction that is not part of the Florida Standard Jury Instructions, the requested instruction must be submitted in writing to the trial court if the issue is to be preserved for appellate review. Rule 3.390(c), Florida Rules of Criminal Procedure; Holley v. State, 423 So.2d 562 (Fla. 1st DCA 1982).

REVERSED and REMANDED.

SHIVERS and ZEHMER, JJ„ concur.


author: WENTWORTH, Judge.

text:
    FLORIDA POWER & LIGHT CO., Appellant, v. Richard E. WALKER, Kelley E. Walker, Jr., & Kenneth W. Walker, Appellees.
    No. AQ-267.
    District Court of Appeal of Florida, First District.
    Nov. 18, 1983.

      Noah H. Jenerette, Jr., and James H. McCarty, Jr., of Boyd, Jenerette, Staas, Joos, Williams & Felton, Jacksonville, for appellant.
    William L. Coalson, of Greene & Greene, Jacksonville, for appellees.
   WENTWORTH, Judge.

In a condemnation suit brought against them by appellant, appellees filed a counterclaim for trespass. They were awarded $866 compensatory damages and $45,000 in punitive damages. Florida Power and Light appeals only the award of punitive damages. We reverse.

In April of 1981, Florida Power & Light began working on a 37.5 mile electricity transmission line in northern Nassau County. As it acquired necessary rights of way, the land was cleared by a contractor, Phillips & Jordan, Inc. Prior to the beginning of the clearing activities Florida Power & Light and Phillips & Jordan personnel met for a preconstruction conference. They discussed the fact that not all of the necessary land had been acquired, and therefore a “leapfrogging” technique would be utilized in order to do the clearing on the lands that had been acquired, while skipping those lands that had not yet been taken. In addition, Florida Power & Light had prepared a color coded map showing the property that had been acquired and that which had not. Appellees’ property was among that which had not. When the contractor began the actual clearing, Florida Power & Light had on-site supervisors who were available in the event problems or questions arose.

Before acquiring the right of way over appellees’ land, employees of Phillips & Jordan replaced three sections of appellees’ barbed wire fence with three gates. One of the gates was incorrectly placed and some of appellees’ cattle got out. However, they were rounded up in approximately one hour without loss or damage to the cattle.

Because Florida Power & Light knew it had no right to enter appellees’ land and because it exercised supervisory control over its contractor, appellees argue that there was sufficient evidence for the jury to award punitive damages. The evidence, however, shows only that the trespass was a mistake. Even when viewed in the light most favorable to appellees, there is nothing in the record to show that Florida Power & Light or its contractor acted with wantoness, actual malice, deliberation, gross negligence, or utter disregard of appellees’ property rights. Winn and Lovett Grocery Co. v. Archer, 126 Fla. 308, 171 So. 214 (1936).

In Florida Power and Light v. Scudder, 350 So.2d 106 (Fla. 2d DCA 1977), the court found that although Florida Power & Light had been careless in failing to ascertain the true owners of the property before erecting its power poles, the company’s conduct was “not the type of outrageous wrong which warrants imposition of punitive damages.” 350 So.2d 110. In Scudder, the trespass was of a continuing nature because the company had actually installed the poles and lines before determining who owned the property. Here, the trespass was brief and appel-lees were adequately compensated for any actual damages. In addition, the evidence shows that Florida Power & Light had taken precautions to attempt to avoid a mistake of the kind which occurred here. The fact that a mistake did occur does not entitle appellees to punitive damages. We find the punitive damage award to be manifestly against the weight of the evidence. See Arab Termite and Pest Control v. Jenkins, 409 So.2d 1039 (Fla.1982).

The punitive damage award is accordingly reversed; the judgment is affirmed in all other respects.

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


author: THOMPSON, Judge.

text:
    Johnnie HAYNES, Jr., Appellant, v. STATE of Florida, Appellee.
    No. AR-78.
    District Court of Appeal of Florida, First District.
    Nov. 18, 1983.

      Terry P. Lewis, Sp. Asst. Public Defender, Tallahassee, for appellant.
    Lawrence A. Kaden, Asst. Atty. Gen., Tallahassee, for appellee.
   THOMPSON, Judge.

Defendant appeals the order revoking his probation and argues that the trial court erred in finding a violation of probation as to several counts listed in the affidavit of violation of probation. We reverse and remand.

Counts 3 and 5 of the affidavit of violation of probation alleged that defendant failed to pay court costs as he had been instructed to do by his probation officer and as required in the order of probation. Although the trial court impliedly found that defendant violated his probation by failing to pay court costs, the trial court made no specific finding that defendant had the ability to pay the court costs. Accordingly, the trial court erred in impliedly finding that defendant committed the violations alleged in Counts 3 and 5 of the affidavit of probation. See Winfield v. State, 406 So.2d 50 (Fla. 1st DCA 1981); Young v. State, 399 So.2d 1082 (Fla. 1st DCA 1981).

Count 4 of the affidavit alleged that contrary to his probation officer’s instruction, defendant went to his wife’s house on or about December 1, 1982. Under the instant circumstances, this instruction by defendant’s probation officer was not a routine supervisory direction but essentially amounted to a new condition of probation which a probation officer is without authority to prescribe. See generally Hutchinson v. State, 428 So.2d 739 (Fla. 2d DCA 1983); Holterhaus v. State, 417 So.2d 291 (Fla. 2d DCA 1982). Accordingly, the trial court erred in impliedly finding that defendant violated his probation as alleged in Count 4 of the affidavit.

Count 2 of the affidavit alleged that contrary to his probation officer’s instructions, defendant failed to notify his probation officer that he lost his job. This instruction by the probation officer was a routine supervisory direction. As noted in Hutchinson, the violation of a supervisory direction given by a probation officer may be a proper ground for revocation of probation, although the direction has not been specifically approved by the trial court. . The evidence supports the implied finding that defendant violated his probation as alleged in Count 2 of the affidavit. The record also supports the implied finding that defendant violated his probation as alleged in Count 1 of the affidavit by changing his residence without procuring the consent of his probation officer.

Although the evidence supports the implied findings that defendant violated his probation as alleged in Counts 1 and 2 of the affidavit, we are unable to determine whether the trial court would have revoked defendant’s probation and imposed the same sentence without the violations alleged in Counts 3, 4, and 5 of the affidavit. Accordingly, we remand this ease to the trial court for a redetermination of these matters. See Blake v. State, 433 So.2d 611 (Fla. 1st DCA 1983); Watts v. State, 410 So.2d 600 (Fla. 1st DCA 1982).

ERVIN, C.J., and NIMMONS, J., concur.


text:
    Milton E. MARSHALL, Appellant, v. STATE of Florida, Appellee.
    No. AR-99.
    District Court of Appeal of Florida, First District.
    Nov. 18, 1983.

      Paula S. Saunders, Asst. Public Defender, Tallahassee, for appellant.
    No response for appellee.
   PER CURIAM.

Appeal dismissed. Robinson v. State, 373 So.2d 898 (Fla.1979); Skinner v. State, 399 So.2d 1064 (Fla. 5th DCA 1981). This dismissal is without prejudice to appellant’s right to seek post-conviction relief in the trial court.

BOOTH, LARRY G. SMITH and SHIVERS, JJ., concur.


text:
    Alline HAMILTON and Julius E. Hamilton, husband and wife, Appellants, v. ALBERTSON’S, INC., a Delaware corporation, Appellee.
    No. AR-113.
    District Court of Appeal of Florida, First District.
    Nov. 18, 1983.
    Robert J. Mayes and Charles J. Kahn, Jr., of Levin, Warfield, Middlebrooks, Mabie, Thomas, Mayes & Mitchell, Pensacola, for appellants.
    Nancy T. Gilliam and Louis F. Ray, Jr., of Ray & Kievit, Pensacola, for appellee.
   PER CURIAM.

Appellants, plaintiffs below, sued for damages in this slip-and-fall case and appeal an adverse judgment entered on a jury verdict. The only issue presented concerns an alleged erroneous instruction given the jury.

There was no evidence showing how the slippery substance came to be on the floor. The only negligence issue supported by the evidence and argued to the jury was whether the slippery substance had been on the floor sufficiently long to put appellee on notice. On the record before us, appellants have failed to preserve and demonstrate reversible error regarding the jury instructions taken as a whole. Arnold v. Taco Properties, Inc., 427 So.2d 216, 219-20 (Fla. 1st DCA 1983); Page v. Cory Corp., 347 So.2d 817 (Fla. 3d DCA 1977); Frankowitz v. Beck, 257 So.2d 918, 919 (Fla. 3d DCA 1972); Henningsen v. Smith, 174 So.2d 85 (Fla. 2d DCA 1965). This case is distinguishable from and thus not governed by LaRussa v. Vetro, 254 So.2d 537 (Fla.1971).

AFFIRMED.

MILLS, SHIVERS and ZEHMER, JJ., concur.


author: ZEHMER, Judge.

text:
    Mark NELSON, Appellant, v. STONEWALL INSURANCE COMPANY, et al., Appellees.
    No. AR-225.
    District Court of Appeal of Florida, First District.
    Nov. 18, 1983.
    William Fisher, III, of Fisher, Bell, Hahn & Schuster, Pensacola, for appellant.
    Joe J. Harrell, of Harrell, Wiltshire, Stone & Swearington, Pensacola, for appel-lees.
   ZEHMER, Judge.

This is an appeal from a judgment of dismissal for failure to prosecute within the past year. We affirm.

On December 14, 1982, the court entered, and the following day caused to be served, its standard form entitled “Motion, Notice, and Judgment of Dismissal,” which set forth the following:

The Court finds that it does not affirmatively appear from filing of pleadings, order of court or otherwise for a period of one year that this action is being prosecuted, so

IT IS ADJUDGED AS FOLLOWS:

1. Good cause shall be shown why the action should not be dismissed for lack of prosecution at least five days before the hearing set in paragraph 3.
2. The showing of good cause shall be in writing and filed in the action.
3. If a showing of good cause is filed as provided in paragraph 2, a hearing on the question shall be held on January 11, 1983, at 2:00 o’clock p.M. [sic], before the undersigned judge, in his chambers in the Judicial Center, 190 Governmental Center, Pensacola, Florida.
4. If no showing of good cause is filed within the time specified in paragraph 1, this action shall stand dismissed for lack of prosecution without further order of court on the date specified in paragraph 3.
ORDERED at Pensacola, Florida on December 14, 1982.

On. the date of this order, the last record activity noted in the court file was a motion to dismiss third-party complaint filed on August 5, 1980. On December 17, 1982, appellant (plaintiff) filed a response to the December 14 order, entitled “Showing of Good Cause,” alleging that on December 18, 1981, appellees (defendants) had produced some documents in response to a request and .moved for reinstatement of the action. As a result, the parties stipulated to use December 18, 1981, as the date of last record activity prior to the court’s order of December 14, 1982. On January 11, 1983, defendants moved to dismiss the action pursuant to Rule 1.420(e), Florida Rules of Civil Procedure, contending plaintiff had not taken further action of record. At the hearing on that date, the court requested a memorandum of law on whether the court’s action taken December 14 constituted sufficient record activity to preclude dismissal under the rule. The parties complied; and on January 24, the court entered the order of dismissal here appealed, which specifically noted that no affirmative action other than appellant’s attempts to reinstate the dismissal appeared of record after the court’s order of December 14, 1982.

Plaintiff contends that the court’s order of December 14 constituted record action that prevented dismissal and commenced anew the one-year period under the rule. We disagree.

The purpose of the rule is to expedite litigation and keep the court dockets as current as possible, and it is plaintiff’s responsibility to expedite his litigation. In addition to those cited by the parties, we have reviewed a number of appellate decisions which approve and disapprove dismissal for failure to prosecute. Our reading of these decisions indicates that the record action held necessary to prevent a Rule 1.420(e) dismissal not only substantially furthered the prosecution of the case but, also, was initiated either by a party to the action or by a court order entered in response to a party’s notice or motion that advanced the cause. Accordingly, in Boeing Co. v. Merchant, 397 So.2d 399 (Fla. 5th DCA 1981), it was held that a form order issued sua sponte by the court to spur action (similar to the one used in this case) did not constitute affirmative record activity advancing the cause and, thus, did not prevent dismissal under the rule. We likewise hold that the sua sponte order of the court in this case did not constitute record activity sufficient to preclude dismissal under the requirements of Rule 1.420(e).

AFFIRMED.

MILLS and SHIVERS, JJ., concur.

      . May v. State ex rel. Ervin, 96 So.2d 126 (Fla.1957).

      . Record activity held insufficient to preclude dismissal under Rule 1.420(e):

        Gulf Appliance Distributors, Inc. v. Long, 53 So.2d 706 (Fla.1951) (motion for substitution of counsel); Overseas Development, Inc. v. Amerifirst Federal Savings and Loan Assn., 433 So.2d 587 (Fla. 3d DCA 1983) (motion to reflect previously accomplished name change of defendant and court’s order therein); Appraisal Group, Inc. v. Visual Communications, Inc., 426 So.2d 1155 (Fla. 3d DCA 1983) (stipulation and order for substitution of counsel); Boeing Company v. Merchant, 397 So.2d 399 (Fla. 5th DCA 1981) (order to show cause for lack of prosecution); Industrial Trucks of Florida, Inc. v. Gonzalez, 351 So.2d 744 (Fla. 3d DCA 1977) (substitution of counsel and order thereon).
      Record activity held sufficient to preclude dismissal:

        Johnson v. Mortgage Investors of Washington, 410 So.2d 541 (Fla. 2d DCA 1982) (defendant’s motion to dismiss for failure to prosecute); Marschall v. Water-Boggan International, Inc., 401 So.2d 1157 (Fla. 3d DCA 1981) (order requiring reservice of process and return of the alias summons and substituted service constitute record activity); but cf., Giraldo v. Cossin, 399 So.2d 540 (Fla. 3d DCA 1981); Thomas v. Personal Representative of Estate of DeLoach, 400 So.2d 204 (Fla. 1st DCA 1981) (court’s notice of trial); Bair v. Palm Beach Newspapers, Inc., 387 So.2d 517 (Fla. 4th DCA 1980) (court’s order vacating original dismissal and parties’ stipulation to permit the filing of an amended complaint); Harris v. Winn-Dixie Stores, Inc., 378 So.2d 90 (Fla. 1st DCA 1979) (answer to a third amended complaint); American Salvage and Jobbing Co. v. Salomon, 367 So.2d 716 (Fla. 3d DCA 1979) (filing and service of interrogatories and notice of hearing on motion to compel answers to interrogatories); Strader v. Morrill, 360 So.2d 1137 (Fla. 1st DCA 1978) (motion for summary judgment); O’Neal v. Midgette, 356 So.2d 1261 (Fla. 2d DCA 1978) (motion and order to substitute personal representative of deceased party); Kenet v. Stein, 326 So.2d 36 (Fla. 3d DCA 1976) (plaintiff’s notice of hearing on motion to dismiss third-party complaint); Milu, Inc. v. Duke, 256 So.2d 83 (Fla. 3d DCA 1971) (plaintiff’s notice of hearing); Cypress Corp. of Florida v. Smith, 218 So.2d 481 (Fla. 2d DCA 1969) (filing of answer); City of Miami v. Railway Express Agency Inc., 141 So.2d 285 (Fla. 3d DCA 1962) (plaintiff’s notice of hearing defendant’s motion for production of medical reports).

        . Marschall v. Water-Boggan International, Inc., supra, and Johnson v. Mortgage Investors of Washington, supra, relied on by plaintiff, are not controlling in this case. Marschall held that a court order requiring reservice of process constituted sufficient record activity. That order clearly advanced the prosecution of the case and should not be read, as suggested by plaintiff, to mean any order issued by a court constitutes sufficient activity to preclude dismissal. Johnson held that a defendant’s motion to dismiss for lack of prosecution filed before the expiration of one year was record activity that precluded dismissal. While we have doubts about the validity of that treatment of such a motion, the case sub judice is distinguishable and, thus, not in conflict because defendant’s motion to dismiss for lack of prosecution was filed on January 11, more than a year month after last the record activity.


text:
    Wilson TILLMAN, Appellant, v. STATE of Florida, Appellee.
    No. AS-6.
    District Court of Appeal of Florida, First District.
    Nov. 18, 1983.
    Michael E. Allen, Public Defender, and Carl S. McGinnes, Asst. Public Defender, Tallahassee, for appellant.
    Jim Smith, Atty. Gen., and Lawrence A. Kaden, Asst. Atty. Gen., Tallahassee, for appellee.
   PER CURIAM.

We affirm appellant’s convictions for second degree murder, attempted manslaughter, and carrying a concealed firearm. While affirming the manslaughter conviction, we also certify the following question of great public importance to the Supreme Court of Florida:

IS THERE A CRIME OF ATTEMPTED MANSLAUGHTER UNDER THE STATUTES OF THE STATE OF FLORIDA?

Brown v. State, 431 So.2d 247 (Fla. 1st DCA 1983); Taylor v. State, 401 So.2d 812 (Fla. 5th DCA 1981).

AFFIRMED but CERTIFIED.

ERVIN, C.J., JOANOS, J., and TILLMAN PEARSON (Ret.), Associate Judge, concur.


text:
    GEORGIA-PACIFIC CORPORATION, a Georgia Corporation, Appellant, v. WALTER E. HELLER & COMPANY SOUTHEAST, INC., a Louisiana Corporation, Appellee.
    No. AS-61.
    District Court of Appeal of Florida, First District.
    Nov. 18, 1983.

      David W. Carstetter, of Kent, Watts, Durden, Kent, Nichols & Mickler, Jacksonville, for appellant.
    Douglas H. Morford, of Ulmer, Murchison, Ashby, Taylor & Corrigan, Jacksonville, for appellee.
   PER CURIAM.

Georgia Pacific Corporation appeals a final judgment in favor of Walter E. Heller & Company Southeast, Inc. permitting Heller recovery of the value of certain property converted by Georgia Pacific in the amount of $11,321.00 plus interest. The issue for our review is whether the total business relation involving these parties and a bankrupt entity was a transaction encompassed within the Florida Uniform Commercial Code, Section 672.326, Florida Statutes. No published Florida eases deal directly with the specific question before us and therefore we resort to authorities from other jurisdictions for assistance. The trial judge in this case, Judge Thomas D. Oakley, considered those authorities and favored the parties and this court with a well-reasoned and erudite judgment which we adopt as our own. That order provides as follows:

THIS CAUSE came on for trial before the Court without a jury.

The facts are not in dispute. In December of 1976, Georgia Pacific Corporation (“Defendant”) entered into a contract with Bill Amos Brokerage Co., Inc. (“Bill Amos”), whereby Defendant agreed to consign stock to Bill Amos. The contract provided that the risk of loss for merchandise shipped to Bill Amos would pass to Bill Amos upon delivery of the merchandise by a carrier.

The contract contained numerous references to the term “consigned merchandise” and provided that Bill Amos would assist the Defendant in any reasonable manner to protect the interest of Defendant “in this consignment transaction including, but not limited to, execution (of) financing statement, posting of signs under a sign law, and otherwise.” The Defendant took no action to perfect its interest in goods shipped to Bill Amos by the filing of a UCC-1 financing statement.

At the time Bill Amos entered into the agreement with the Defendant, Bill Amos operated a warehouse facility located in Jacksonville, Florida, at which Bill Amos was engaged in business as a wholesale food and grocery distributor, broker and merchant, dealing in food products and grocery items, including paper products.

Subsequent to the execution of the agreement, Defendant consigned merchandise to Bill Amos consisting of paper products such as paper towels, tissue and the like.

The Defendant shipped paper products to Bill Amos primarily to facilitate the sale of such products to military commissaries located in the State of Florida. When Bill Amos would ship consigned merchandise to a commissary, it would file a report with Defendant indicating that the delivery had been accomplished. The Defendant then invoiced the commissaries and received payments directly from the commissaries for the paper products delivered. Bill Amos received a commission from the Defendant representing 8% of the total sale price.

On August 2,1977, Plaintiff’s predecessor in interest, First National Heller-Factors, entered into an Inventory Loan Security Agreement and an Accounts Financing Security Agreement with Bill Amos. First National Heller-Factors obtained and filed UCC-1 financing statements covering all “accounts, contract rights, chattel paper and general intangibles, all inventory ...” The financing statements also covered the proceeds of collateral.

On September 15, 1978, First National Heller-Factors assigned to Plaintiff, Walter E. Heller & Company Southeast, Inc. (“Plaintiff”), all of its right, title and interest in the Inventory Loan Security Agreement, the Accounts Financing Security Agreement, and the financing statements in question.

On September 15,1978, and at all material times thereafter, Bill Amos was indebted to Plaintiff in an amount in excess of $500,-000.

On January 22, 1979, Bill Amos filed a voluntary petition in the United States Bankruptcy Court, For the Middle District of Florida, pursuant to Chapter XI of the Bankruptcy Act.

Shortly after the filing of the bankruptcy petition, the Defendant entered upon the premises of Bill Amos to reclaim the merchandise that had been consigned by Defendant to Bill Amos. The Defendant expected to find in excess of 1,400 cases of paper products. In fact, the Defendant located and removed from the Bill Amos facility consigned inventory consisting of 390 cases of goods, valued at $11,321.00.

Plaintiff contends that the removal of such goods by the Defendant was in derogation of the Plaintiffs superior rights to possession as a secured creditor and as such constituted conversion. Plaintiff argues that either the transaction constituted a consignment intended as security within the meaning of Section 671.201(37), Florida Statutes, or was a sale or return transaction governed by the provisions of Section 672.-326, Florida Statutes, which in pertinent part provides that:

“(3) Where goods are delivered to a person for sale and such person maintains a place of business at which he deals in goods of the kind involved, under a name other than the name of the person making delivery, then with respect to claims of creditors of the person conducting the business the goods are deemed to be on sale or return. The provisions of this subsection are applicable even though an agreement purports to reserve title to the person making delivery until payment or resale or uses such words as ‘on consignment’ or ‘on memorandum’. However this subsection is not applicable if the person making delivery:
“(a) complies with an applicable law providing for a consignor’s interest or the like to be evidenced by a sign, or
“(b) establishes that the person conducting the business is generally known by his creditors to be substantially engaged in selling the goods of others, or
“(c) complies with the filing provisions of the chapter on secured transactions (Chapter 679).”

Defendant contends that the transaction was not a consignment intended as security. Defendant further contends that the paper products consigned to Bill Amos were not delivered “for sale” and that as such the provisions of Section 672.326(3), Florida Statutes, are inapplicable. Defendant relies primarily upon the case of Walter E. Heller & Company Southeast, Inc. v. Riviana Foods, Inc., 648 F.2d 1059 (5th Cir.1981).

The Riviana case, like the instant case, arose out of the Bill Amos bankruptcy proceeding. As in the instant case, the contractual agreement between Riviana and Bill Amos made no express provision for the sale of Riviana’s goods by Bill Amos. Nonetheless, Riviana conceded, as the evidence indicates herein, that Bill Amos operated a place of business under its own name at which it dealt in food and grocery products. Riviana also admitted, as is admitted by the Defendant herein, that it took no steps whatsoever to evidence its retained ownership interest in the goods shipped by Riviana to Bill Amos and held at the Bill Amos facility.

In the Riviana Foods case, the United States District Court, For the Middle District of Florida, granted Riviana’s motion for summary judgment in an unpublished opinion. The Court determined that the transaction between Riviana and Bill Amos was not a deemed sale or return under Section 672.326(3), Florida Statutes. The United States Court of Appeals for the Fifth Circuit subsequently affirmed this opinion per curiam at 648 F.2d 1059.

A principal issue in the Riviana case, as in the instant case, was whether the goods had been delivered by Riviana to Bill Amos “for sale”, since no express authority had been conferred upon Bill Amos to sell.

The Riviana case has been criticized as an incorrect interpretation of Section 2-326(3) of the Uniform Commercial Code. See Brown, U.C.C. Section 2-326(3): Creditor Protection in the Deemed Sale or Return Transaction, 32 Case Western Reserve Law Review 904. This Court does not agree with the decision reached in the Riviana case.

The legislative history with respect to Section 672.326(3), Florida Statutes, indicates that a consignee’s creditors are to be protected from secret reservations in ostensible ownership situations. Official Comment 2, Section 672.326, Florida Statutes.

Section 672.326(3), Florida Statutes, was enacted for the purpose of protecting the creditors of a merchant who is the apparent owner of goods located at the place of business of the merchant.

In the case of Manufacturer’s Acceptance Corporation v. Penning’s Sales, Inc. [5 Wash.App. 501] 487 P.2d 1053 (1971), a paint manufacturer shipped an inventory of paint to itself in care of a paint store under an agreement with the store owner by which the paint manufacturer reserved title to the paint which the store owner was to hold in a storage area at the rear of the paint store, subject to the manufacturer’s order to ship the paint to one of the paint manufacturer’s dealers in the area. For this service, the paint store was paid 6% of the amount of each order shipped or delivered to a dealer of the paint manufacturer. The paint store conducted a retail paint sales business in the front portion of the store.

The paint manufacturer contended that the agreement was simply a warehousing agreement, and that as such the goods could not be subjected to the claims of Manufacturer’s Acceptance Corp., which held a perfected security interest in the inventory of the paint store. The court held that the transaction was a sale or return within the meaning of Section 2-236 [sic] of the Uniform Commercial Code, since the paint store was dealing in goods of the kind involved in the inventory stored on the premises. The Court went on to point out that the paint manufacturer had not rendered the sale or return provision inapplicable by establishing one of the three exceptions contained in Section 2-326(3) of the Uniform Commercial Code.

The decision in Manufacturer’s Acceptance Corp. v. Penning’s Sales, Inc., supra, demonstrates that the Uniform Commercial Code disregards the intended character of the transactions between the parties and treats a transaction as a sale or return when goods are delivered to a person who maintains a place of business at which he deals in goods of the kind involved under any name other than that of the person making delivery. See 1 Anderson, Uniform Commercial Code, § 2-326:6.

In the case of General Electric Co. v. Pettingell Supply Co. [347 Mass. 631] 199 N.E.2d 326 (1964), General Electric delivered electrical fixtures to Pettingell Supply Company. Pursuant to the agreement between the parties, Pettingell could sell to certain customers who purchased for their own use and was also authorized to make deliveries under contracts for sale entered into between General Electric and certain distributors of General Electric.

The Court held that Section 2-236(3) [sic] of the Uniform Commercial Code was applicable, and that as such the creditors of Pettingell had a superior right to possession of the goods.

Although the holdings in Pettingell and Penning’s Sales did not specifically address the issue of whether Section 2-326(3) of the Code would apply if the person in possession did not have the authority to personally sell the goods delivered, this issue was discussed at some length in a law review article entitled Commercial Transactions: UCC Section 2-326 and Creditors’ Rights to Consigned Goods, 65 Columbia Law Review 547, at 549. In referring to the Pettingell case, the article stated that:

“The instant case is significant not because the factual situation seriously tested the meaning of Section 2-326(3), but because it underscored the ambiguities of the provision. For example, if Pettin-gell’s sole authority had been to distribute the- lamps to subagents, a difficult problem would have arisen. By its terms, the section is applicable only if ‘goods are delivered to a person for sale’. But for sale by whom? The court’s holding in this case covers the situation in which the person receiving the goods is authorized to sell them himself. The decision, however, does not exclude a broader application of Section 2-326(3) to transactions in which goods are delivered for ultimate sale. It is reasonable to assume that a general creditor has protection under the provision whether his debtor had authority to sell all, part or none of the goods. Such an interpretation, consistent with the intent of the framers of the UCC, would protect creditors of unstable consignees who act only as delivery and collection agents. It would comport with UCC Section 2-403(2) which provides that a merchant in possession of goods of the kind in which he deals can, in the ordinary course of business, transfer ownership to a buyer. That the protection under Section 2-326(3) is equivalent to that under Section 2-403(2) is to some degree supported by the instant case. Although GE’s contract with Pettingell conferred authority to sell the goods, in fact only twenty-six percent of the goods were distributed in this fashion. Even if one percent had been sold, the decision implies the same result. Carrying this theory to its logical conclusion, one could expect that whether Pettingell sold any goods would be immaterial.”

The issue of lack of express authority to sell was squarely faced in the case of In Re Novak, 7 UCC Rptr. 196 (Md.Cir.Ct.1969). In the Novak case, a merchant who dealt in business machines entered into a sales agency agreement with a manufacturer, pursuant to which all proposed sales contracts were forwarded to the manufacturer for credit check and approval. All billings for sales to customers were from the manufacturer’s offices, and all payments for machines were made directly to the manufacturer. The manufacturer paid the merchant a monthly commission on sales. The Court, in commenting on the fact that the merchant was not shown to have actual authority to make sales, stated that:

“Although certain transactions may not be sales under Section 2-106(1) [of the Code] they are ‘deemed to be on sale or return with respect to claims of creditors of the person conducting the business’ ... [T]o answer the issues raised by respondent that Debtor was not a buyer, ... this Court does not feel that it is improper to give broader application to Section (3) [2-326(3)] to include transactions in which goods are delivered at least in great part for ultimate sale. It is reasonable to assume that a general creditor has protection under the provisions whether his debtor had authority to sell all, part or none of the goods. Such an interpretation, consistent with the intent of the framers of the Uniform Commercial Code, would protect creditors of unstable consignees who act as delivery and collection agents. It would comport with the Uniform Commercial Code, Section 2-403(2), which provides that a merchant in possession of goods of the kind in which he deals can, in the ordinary course of business, transfer ownership to a buyer.” [Id. at pp. 201-202] [Emphasis supplied].

The agreement between Defendant and Bill Amos refers to consigned merchandise. Although Defendant has argued that the transactions in question were only storage and warehousing agreements, the Court, in In Re Novak, supra, after finding that the correspondence between the parties referred to the goods as “consigned stock” and “consigned inventory”, held that use of the term “consigned” would be deemed to have the meaning associated with a general commercial transaction. The Court stated:

“The term ‘consignment’ used in a commercial sense, ordinarily implies an agent, and denotes that property is committed to the consignee for care or sale.” [Id. at p. 202] [Emphasis supplied].

Just as the existence of an undisclosed interest in goods does not prevent passage of title pursuant to Section 672.403(2), Florida Statutes, neither should a hidden interest prevent the enforcement of a security interest in goods delivered “for sale”, whether the sale was to be made by the supplier or by the person to whom the goods were consigned.

In the case of Vonins, Inc. v. Raff [101 N.J.Super. 172] 243 A.2d 836 (N.J.App.1968), an installer of plumbing and heating apparatus assigned his installation contracts to Vonins, pursuant to an agreement whereby Vonins agreed to engage Crest as its subcontractor -for the assigned contracts and for any other installation contracts obtained by Vonins. Vonins furnished Crest with supplies and materials needed to complete the contracts, .and Crest was to receive 40% of the total contract price for its labor services. Raff, an assignee for the benefit of creditors of Crest, claimed a superior interest to that of Vonins in the materials and supplies found at Crest’s warehouse.

Vonins claimed that it merely stored and warehoused the goods at Crest’s place of business, and that Section 2-326(3) of the Code was not applicable because Crest did not engage in selling the goods delivered by Vonins. In ruling that Section 2-326(3) of the Code was applicable and that Vonin’s interest was subordinate to the interest of Raff, the Court stated:

“Further we do not deem it to be a prerequisite to Code application that Crest have been engaged at its premises in over-the-counter retail selling of plumbing equipment. Before the 1963 agreement, Crest installed this equipment, purchased from Elite, for various builders and developers. Thereafter, it continued to do the same with the equipment it obtained from Vonins. At all times in which Crest was engaged in operations, it performed the same method of distribution of equipment from manufacturer to ultimate user. Clearly, Crest maintained a place of business at which it dealt ‘in goods of the kind involved.’ Even though an overall price would be charged for the installation of the equipment, it cannot be denied that the price of the equipment installed was a distinct component of that consideration. Thus, plaintiff delivered goods to Crest ‘for sale’ to others. That resale need not have been consummated at Crest’s premises for the statute to apply.”

In both the Novak and Vonins cases, goods were delivered to an agent or bailee who was not permitted to sell the goods. Although it was claimed that Section 2— 326(3) of the Code was not applicable because the goods were only stored and warehoused, both Courts ruled that Section 2-326 of the Code governed the transactions.

Just as in Vonins, Bill Amos was providing a component part of the total sales transaction, for which it was paid a percentage of the overall consideration. The consignment of paper goods by Defendant to Bill Amos was to facilitate sales transactions and was thus “for sale” within the meaning of Section 672.326(3), Florida Statutes.

In the case of Bischoff v. Thomasson, 400 So.2d 359 (Ala.1981), the Alabama Supreme Court held that the test to be applied in consignment cases:

“... is simply one of looking at the outwardly visible aspects of the transaction outlined in [Section 2-326(3) ], viz:
(1) delivery of possession to the consignee,
(2) engaging in the business of selling such types of items by the consignee, and
(3) failure of the consignor to give public notice of his retained interest in the goods.”
Id. at 367

In the instant case, the Defendant delivered possession to a consignee, Bill Amos, who was engaged in the business of selling goods of the type consigned by Defendant, and the Defendant failed to give public notice of any retained interest in the goods.

It should further be noted that although Bill Amos had no express authority to sell or otherwise dispose of merchandise consigned to it by the Defendant, the Defendant found that in excess of 1,000 cases of merchandise were missing when it attempted to retrieve its consigned goods. Although there is no direct evidence as to what has become of the goods, it is clear that as a dealer of goods in the kind involved Bill Amos could have passed good title to the goods pursuant to the provisions of Section 672.403, Florida Statutes.

Furthermore, it is obvious from the provisions of the contract between the Defendant and Bill Amos, a contract prepared by Defendant, that the Defendant was aware that some action was required to protect its interest in the consigned merchandise. Certainly, the Defendant was in the best position to protect itself. It could have done so by storing its products with a party who did not deal in food and grocery items. It could have done so by complying with the Article 9 filing requirements. The Defendant failed to protect its own interests and, as such, had an unperfected interest in the consigned goods, subordinate to the perfected security interest of Plaintiff.

The removal of goods by the Defendant was in derogation of Plaintiff’s superior rights to possession of the inventory as a secured creditor and as such, constituted conversion. See 12 Fla.Jur.2d, Conversion and Replevin, Sections 6 and 17. See also Fletcher v. Dees, 101 Fla. 402; 134 So. 234 (1931). As such, Plaintiff is entitled to recover the reasonable market value of the property converted, together with interest thereon. 12 Fla.Jur.2d., Conversion and Replevin, Section 20.

In the instant case, the value of the goods removed by Defendant from the warehouse of Bill Amos was $11,321.00. Plaintiff is entitled to a final judgment in that sum, together with interest at the rate of 6% per annum from January 22,1979 through June 30, 1982, and at the rate of 12% per annum from July 1, 1982, through the date hereof. Based on the foregoing, it is

ORDERED AND ADJUDGED that Plaintiff, WALTER E. HELLER & COMPANY SOUTHEAST, INC., do have and recover of and from the Defendant, GEORGIA PACIFIC CORPORATION, the sum of $11,321.00, together with interest thereon in the amount of $3,264.17, and costs of this action in the amount of $41.00, for a total sum of $14,626.17, for which let execution issue. i

In adopting the trial court’s opinion we, as did the trial judge, decline to follow the decision of the Fifth Circuit Court of Appeals in Riviana and rely instead on the better reasoned view of the authorities cited herein.

AFFIRMED.

MILLS, THOMPSON and WIGGINTON, JJ., concur.