author: CAMPBELL, Judge.

text:
    Martin BOWEN, Sr. and Martin Bowen, Jr., Appellants, v. FLORIDA DEPARTMENT OF ENVIRONMENTAL REGULATION, Appellee.
    No. 83-1265.
    District Court of Appeal of Florida, Second District.
    April 4, 1984.

      William F. Tarr of Peeples, Earl, Reynolds & Blank, Miami, for appellants.
    Charles G. Stephens, Asst. General Counsel, Tallahassee, for appellee.
   CAMPBELL, Judge.

Appellants, Martin Bowen, Sr. and Martin Bowen, Jr., seek review of the circuit court’s dismissal of their inverse condemnation action brought under sections 253.-763 and 403.90, Florida Statutes (1981). The action was filed directly in the circuit court after appellee, Florida Department of Environmental Regulation (DER), denied appellants a permit necessary to develop their property. The trial court dismissed the action for failure to exhaust administrative remedies available prior to final agency action, under chapter 120, on the basis of Key Haven Associated Enterprises v. Board of Trustees of the Internal Improvement Trust Fund, 427 So.2d 153 (Fla.1982).

Appellants applied for a dredge and fill permit pursuant to chapters 403 and 253, Florida Statutes. In April 1982, DER issued a notice of intent to deny the permit. Appellants did not petition for an administrative hearing under section 120.57, Florida Statutes (1981). In June 1982, DER issued its final order denying, on its merits, the application for the permit. Appellants’ next step was to file this suit for inverse condemnation in the circuit court, based on their inability to develop the land because of the permit denial.

In Key Haven, upon which the trial court relied in dismissing appellants’ complaint, the applicant received DER’s notice of intent to deny a dredge and fill permit and requested an administrative hearing under section 120.57. After that hearing and the resulting denial of the permit, an appeal to the Board of Trustees of the Internal Improvement Trust Fund (TIIF), under section 253.76, Florida Statutes, was not pursued. Suit for inverse condemnation was then filed in the circuit court. Ultimately, the Florida Supreme Court held that the injured party must complete the administrative process through the executive branch; i.e., an appeal to TIIF was required before suit could be brought in the circuit court for inverse condemnation. The trial judge in the case at bar, extended Key Haven to find that the failure to request an administrative hearing pursuant to 120.57, prior to the final agency action denying the permit, constituted a failure to exhaust administrative remedies and, therefore, appellants’ circuit court action was barred.

The application of Key Haven to the facts in this case presents two issues. First, does section 253.763(2), which was not effective at the time pertinent to the decision in Key Haven, remove the requirement of appeal to TIIF before a resort to circuit court action for inverse condemnation? Second, if appeal to TIIF is not necessary, is a section 120.57 administrative hearing prior to final agency action a prerequisite to bringing an inverse condemnation action in the circuit court?

Appellants argue that Key Haven does not apply since it arose before section 253.-763, which expressly authorizes the inverse condemnation action in the circuit court. Sections .253.763(2) and 403.90(2) provide:

Any person substantially affected by a final action of any agency with respect to a permit may seek review within 90 days of the rendering of such decision and request monetary damages and other relief in the circuit court in the judicial circuit in which the affected property is located; however, circuit court review shall be confined solely to determining whether final agency action is an unreasonable exercise of the state’s police power constituting a taking without just compensation. Review of final agency action for the purpose of determining whether the action is in accordance with existing statutes or rules and based on competent substantial evidence shall proceed in accordance with chapter 120.

We agree with appellants that this section now provides for proceeding directly to the circuit court on an inverse condemnation action following final agency action denying, on its merits, a permit application. Final agency action, in this case, is construed to mean the written decision of the DER under section 120.59(1), Florida Statutes (1981), and the Florida Administrative Code Rule 17.1.88. We find, therefore, that section 253.763(2) alters the case law as established by Key Haven, and later approved in Albrecht v. State, 444 So.2d 8 (Fla.1984). (Albrecht also arose prior to the enactment of section 253.763.) We see no indication now that the plain meaning of “final agency action,” as used in the statute, should be extended to include an appeal to TIIF. Inverse condemnation actions cannot be adjudicated by administrative boards or agencies. We conclude that section 253.763(2) merely short-circuits the procedure of administrative appeal to TIIF required by Key Haven. We find this change in procedure is in accord with the general policy against requiring exhaustion of administrative remedies where administrative proceedings would be useless, and where the parties are willing to accept the final agency administrative action as procedurally and substantively correct. Gulf Pines Memorial Park, Inc. v. Oaklawn Memorial Park, Inc., 361 So.2d 695 (Fla. 1978); Key Haven at 159. The court in Key Haven held that “before Key Haven could use the permit denial as a basis for an inverse condemnation claim, it was required to pursue a section 253.76 appeal to the IIF trustees.” Key Haven at 156. Section 253.763 now only requires, before resort to the circuit court, “final action of any agency” and not an appeal from “final action of any agency.” Key Haven spoke in terms of exhaustion of administrative remedies. “Final agency action” and “exhaustion of administrative remedies” are not synonymous. In enacting section 253.-763, the legislature could easily have provided that final agency action was not completed until the exhaustion of the appeal provided in section 253.76. It chose not to do so and absent such a provision, an appeal merely postpones the effectiveness of final agency action, but does not alter the nature of that action.

In so holding, we agree with the decision of the Fifth District Court of Appeal in Griffin v. St. Johns River Water Management District, 409 So.2d 208 (Fla. 5th DCA 1982) (discussing section 373.617 (1979), which is identical to sections 253.-763(2) and 403.90(2), Florida Statutes (1981).) We note, however, that DER’s denial of the permit must be based on the merits of the application before direct access to the circuit court is available. Where procedural or substantive errors in the application or administrative hearing thereon result in a permit denial, administrative and judicial appeal through the applicable substantive statutes and chapter 120 is still the proper remedy. This requirement is reiterated by the last sentence of section 253.763(2) which provides:

Review of final agency action for the purpose of determining whether the action is in accordance with existing statutes or rules and based on competent substantial evidence shall proceed in accordance with chapter 120.

We now reach DER’s claim, and the trial court’s finding that, based on Key Haven, a formal administrative hearing under chapter 120.57, Florida Statutes, is a prerequisite to the inverse condemnation suit in the circuit court. Here, appellants did not request a hearing under section 120.57, Florida Statutes following DER’s notice of intent to deny the permit, but instead acquiesced in the proposed action of DER. We find that while Key Haven dealt with the issue of exhaustion of administrative remedies via appeal to TIIF, it did not address the issue of whether an injured party has failed to exhaust administrative remedies where final administrative agency action resulted without a request for an administrative hearing. As hereinbefore indicated, final agency action, however arrived at, now seems the legislative requirement to access to the circuit court.

Section 253.763(2) does not provide that the final agency action and, therefore, the resulting inverse condemnation suit, is conditioned on a prior administrative hearing. That section merely requires final agency action. Chapter 120 does not require a section 120.57 hearing before final agency action. That section provides that where there are no disputed issues of material fact, as is now the posture of this case, informal proceedings may be used. Section 120.57(3) allows for disposition of any proceeding by consent unless precluded by law. We find nothing to preclude affected parties from acquiescing in the final DER action, even though it results in a denial of an application on the merits. Chapter 120 does not contemplate the necessity of formal hearings in regard to every final action of an administrative body. Section 120.59(l)(c) specifically provides for final agency action in the form of an order issued as a result of presentations submitted without hearings. Therefore, we reverse the order of dismissal by the circuit court and remand for further proceedings.

There is one additional issue which is not raised by this case, but which demands clarification.

The wording of section 253.763(2) raises a question as to whether the administrative appeal and the inverse condemnation action in the circuit court may be instituted simultaneously. In Griffin, the Fifth District Court of Appeal held that an administrative appeal prevents the agency decision from becoming a “final” agency action because the appeal keeps the administrative remedies alive. We agree. Thus, if an administrative appeal is instituted under 253.76, the “taking” issue may not be heard by the circuit court until the section 253.76 proceedings are completed. The ninety-day time limitation on bringing inverse condemnation actions in the circuit court, contained in 253.763(2), is automatically tolled until the agency completes the review process. Where no appeal to TIIF is taken, the inverse condemnation suit must be filed within ninety days of the DER decision.

Reversed and remanded.

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


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    STATE of Florida, ex rel. Marion SLOAN, Appellant, v. Andrew SLOAN, Appellee.
    No. 83-1907.
    District Court of Appeal of Florida, Second District.
    April 4, 1984.
    Jim Smith, Atty. Gen., and James A. Peters, Asst. Atty. Gen., Tallahassee, for appellant.
    No appearance on behalf of appellee.
   PER CURIAM.

Appellant filed this action pursuant to chapter 88, Florida Statutes (1983), the Uniform Reciprocal Enforcement of Support Act, to enforce an out-of-state alimony award. The lower court dismissed the action, finding that it lacked jurisdiction to enforce alimony awards under chapter 88. In all material respects, this case is identical to and controlled by State ex rel. Quigley v. Quigley, 446 So.2d 1174 (Fla. 2d DCA 1984). The action of the trial court is therefore affirmed. As noted in Quigley, this case is in conflict with Helmick v. Helmick, 436 So.2d 1122 (Fla. 5th DCA 1983).

OTT, C.J., and BOARDMAN and RYDER, JJ., concur.


text:
    CENTURY PROPERTIES, INC., d/b/a Westlake Homes, and Richard A. Simons, Appellants/Cross-Appellees, v. Sam MACHTINGER and Patricia Machtinger, Appellees/Cross-Appellants.
    No. 83-1130.
    District Court of Appeal of Florida, Second District.
    April 6, 1984.

      Hugh E. Reams of Goldner, Reams, Mar-ger, Davis, Piper & Kiernan, P.A., St. Pe-tersburg, for appellants/cross-appellees.
    Dennis M. Janssen of C. Wade Yeakle, III, P.A., St. Petersburg, for appel-lees/cross-appellants.
   CAMPBELL, Judge.

Appellants, Century Properties, Inc. and Richard A. Simons, seek review of a final judgment entered against them in the amount of $10,500 for actual damages, and the award of punitive damages of $3,500 against appellant, Century Properties, Inc., due to a construction contract dispute involving charges for change orders which deviated from the original contract. A cross-appeal was filed in this case. We affirm the award of compensatory damages as well as the point raised on cross-appeal. We reverse the award of punitive damages.

The jury awarded punitive damages to appellees, Sam Machtinger and Patricia Machtinger, based on their claim of fraud in the inducement to contract based on the charges for change orders. Appellants contend that the punitive damages issue was improperly sent to the jury because there was insufficient evidence to support a finding of fraud in the inducement. They also claim that parol evidence was improperly admitted regarding the amount to be billed for change orders.

Appellants and appellees entered into a contract for construction of appellees’ residence. Paragraph nine of the contract provided:

Should the Buyer at any time during the course of construction require any alteration of or deviation from the final plans and specifications, he shall have the right and' power to make such changes when practicable. Such changes shall be added to or deducted from the amount of the purchase price as stated above. Seller shall have the right any time after issuance of the building permit for construction of the residence to additionally impose a $50 service charge for each meeting necessary to effect changes or addendum to the final plans or specifications. Furthermore, any such change orders made after construction is commenced shall also enlarge the estimated time for completion of construction as may be determined by the Seller.

As is apparent, that paragraph is silent as to any method or manner in which appellants would charge for those change orders. Neither is a method for charging for change orders found elsewhere in the contract.

Paragraph twelve of the contract provides in part:

This contract states the entire agreement between the parties and the Seller is not and shall not be bound by any stipulations, representations, agreements or promises, oral or otherwise, not printed or inserted in this contract.

There were some twenty-one change orders made during the course of the contract. At trial, appellees were allowed to testify that prior to signing the contract, appellants stated that any changes, upgrades or modifications would be done at the cost to appellant Century Properties, Inc. Appellees testified that they chose appellants to build their house because of this promise to make changes at cost. After the closing, appellees discovered they had been overcharged on some but not all of the change orders and filed suit against appellants, which resulted in this appeal.

We note that appellees signed a contract which made no mention of what they claim was an essential element. Even so, parol evidence is admissible to show fraud or misrepresentation in the inducement to contract. Central Mutual Insurance Co. v. Cropper, 296 So.2d 69 (Fla. 2d DCA 1974). In Central Insurance, it became clear that material misrepresentations made on an insurance application, or during “negotiations” for a policy, could be presented via parol evidence. However, that type of misrepresentation is of matters that go to the very heart of the basic agreement between the parties.

Here, the alleged misrepresentations concerned billing for change orders. The change orders were deviations from the original contract. We cannot say that misrepresentations as to the method of billing for deviations from the basic contract go to the heart of the agreement between the parties.

Nonetheless, we conclude that parol evidence was admissible to supply a missing element regarding appellants’ promises concerning change order billing. Petrus v. Bunnell, 129 So.2d 702 (Fla. 2d DCA 1961).

Appellants claim, however, that the parol evidence admitted does not constitute actionable fraud so as to support the punitive damages award. Appellants argue that that evidence, construed in the worst light as to them, merely demonstrates breach of contract.

We agree with appellants’ contentions that punitive damages cannot be recovered for a mere breach of contract; fraud cannot be predicated solely upon the failure to perform a promise. Associated Heavy Equipment Schools, Inc. v. Masiello, 219 So.2d 465 (Fla. 3d DCA 1969). However, a promise may be a basis for fraud where there is evidence the promisor had a specific intent not to perform at the time the promise was made. Alexander/Davis Properties, Inc. v. Graham, 397 So.2d 699 (Fla. 4th DCA 1981).

Here, there was no evidence presented at trial that appellants intended to breach the promise regarding billing at the time the contract was entered. The appellees rely upon the circumstantial evidence of appellants’ subsequent overcharges to prove appellants’ alleged prior fraudulent intent. Not all of the change orders resulted in overcharges and that, in itself, might indicate a lack of prior fraudulent intent on the part of appellants rather than a preconceived intent to fraudulently induce appellees to enter into the contract. The parol evidence was admissible to supply the missing terms for the purpose of proving compensatory damages. However, the substantive evidence of breach of that promise alone is insufficient for the jury to find a pre-existing intent not to perform and is not adequate to sustain punitive damages based on fraud in the inducement to contract. While not probable, it was at least possible that appellees would have initiated no change orders and, therefore, no charges would have come about, and the fraud, if any, therefore, would never have been operative. The existence of fraud will not be presumed based on doubtful or vague parol evidence. While the proof may be wholly circumstantial, it is always incumbent upon, the person asserting fraud to prove it by clear and convincing evidence. Since honesty, not fraud, is presumed where the facts may be fairly and reasonably reconciled with honesty and pure dealing, the existence of fraud will not be presumed. Florida East Coast Railway Company v. Thompson, 93 Fla. 30, 111 So. 525 (Fla.1927); GARD, Florida Evidence, Second Edition, Rules 3:09, 23:04.

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


author: NIMMONS, Judge.

text:
    Pierluigi MANCINI, Appellant, v. STATE of Florida, Appellee.
    No. AT-58.
    District Court of Appeal of Florida, First District.
    April 11, 1984.
    E.C. Deeno Kitchen, Lewis M. Killian, Jr., and Mary L. Sweet of Ervin, Varn, Jacobs, Odom & Kitchen, Tallahassee, for appellant.
    Jim Smith, Atty. Gen., and David P. Gauldin, Asst. Atty. Gen., for appellee.
   NIMMONS, Judge.

Defendant pled nolo contendere to the offense of possession with intent to sell cocaine reserving the right to appeal from the trial court’s order denying the defendant’s motion to suppress. We reverse.

On October 7, 1982, Sergeant Pussell of the Leon County Sheriff’s Office obtained a warrant to search the defendant’s apartment. The application for search warrant was based upon information from a confidential informant who advised Pussell that the defendant was dealing in cocaine at his apartment. Fussell surveilled a controlled buy made by the informant within ten days prior to October 7.

The warrant was not executed immediately after it was issued. Instead, during the week following issuance of the warrant, Sergeant Fussell conversed with the informant on several occasions. The gist of the additional information obtained from the informant was that the supply of cocaine remaining in the defendant’s apartment was running low and that the defendant had a “personal amount” of cocaine left at the apartment. The informant also advised Sergeant Fussell that the defendant would be receiving more cocaine later in the week.

At 2:30 p.m. on October 16, the informant notified Fussell that the defendant, within an hour, would be picking up a package of cocaine from the Federal Express Office. The officers set up a surveillance of the defendant who was observed proceeding to the Federal Express Office in his automobile. Shortly thereafter, he was seen exiting the office with a Federal Express package, entering his automobile and driving away. The officers, who had assumed that the defendant would proceed to his apartment, intended to seize the package upon execution of the apartment search warrant. However, after following the defendant around town for a while, Sergeant Fussell stopped the defendant’s automobile. He advised the defendant that he was under investigation for trafficking in cocaine and then proceeded to search the automobile. After removing the Federal Express package, the officers opened it discovering a substance which later proved to be cocaine. The defendant, who was then arrested, made the statement that the cocaine was his and that the female companion accompanying him in his automobile did not have anything to do with it. He was then taken to his apartment where the officers executed the search warrant. There, they discovered only “traces” of cocaine.

The defendant was transported to the police station where he waived his constitutional rights and made a statement “admitting the possession of cocaine.”

The defendant’s motion to suppress sought suppression of the cocaine seized from the Federal • Express package, the traces of cocaine seized from the defendant’s apartment, and statements made by the defendant after his arrest.

With respect to the cocaine found in the Federal Express package, the state urges that United States v. Ross, 456 U.S. 798, 102 S.Ct. 2157, 72 L.Ed.2d 572 (1982), is supportive of the trial court’s denial of the defendant’s motion. The state’s reliance on Ross, however, is misplaced. Although the officers clearly had probable cause to believe that the defendant was in the process of transporting cocaine in his automobile at the time the officers stopped him, it is equally clear that the probable cause was limited to the Federal Express package as contrasted with the automobile generally. Under these circumstances, the Supreme Court has interpreted the Fourth Amendment as requiring the officers to obtain a search warrant authorizing the opening and searching of the container. Arkansas v. Sanders, 442 U.S. 753, 99 5.Ct. 2586, 61 L.Ed.2d 235 (1979); United States v. Chadwick, 433 U.S. 1, 97 S.Ct. 2476, 53 L.Ed.2d 538 (1977). In Ross the court held that police officers who have legitimately stopped an automobile and who have probable cause to believe that contraband is concealed somewhere therein may conduct a warrantless search of the vehicle and may open any containers which may contain the contraband. Significantly, however, the court was careful to point out the distinction between the situation where, as in Ross, the probable cause information was that the contraband was somewhere within the automobile and the situation, as in Sanders, where the probable cause was limited to a container within the automobile. In discussing its previous opinion in Sanders, the court in Ross stated:

The Arkansas Supreme Court ruled that the warrantless search of the suitcase was impermissible under the Fourth Amendment, and this Court affirmed. As in Chadwick, the mere fact that the suitcase had been placed in the trunk of the vehicle did not render the automobile exception of Caroll [v. United States, 267 U.S. 132, 45 S.Ct. 280, 69 L.Ed. 543 (1925) ] applicable; ...
******
As The Chief Justice noted in his opinion [in Sanders ] concurring in the judgment:
“Because the police officers had probable cause to believe that respondent’s green suitcase contained marijuana before it was placed in the trunk of the taxicab, their duty to obtain a search warrant before opening it is clear under United States v. Chadwick, 433 US 1, 53 L Ed 2d 538, 97 S Ct 2476 (1977)....
“... Here, as in Chadwick, it was the luggage being transported by respondent at the time of the arrest, not the automobile in which it was being carried, that was the suspected locus of the contraband. The relationship between the automobile and the contraband was purely coincidental, as in Chadwick. The fact that the suitcase was resting in the trunk of the automobile at the time of respondent’s arrest does not turn this into an ‘automobile’ exception case. The Court need say no more.” 442 US, at 766-767, 61 L Ed 2d 235, 99 S Ct 2586 [at 2594].

456 U.S. at 812, 813, 102 S.Ct. at 2166. Nor has the Supreme Court left any room for a material distinction being made between the kind of container involved in the case at bar and those which were “protected” under the court’s rulings in Chadwick and Sanders. Id. at 814, n. 19, 102 S.Ct. at 2167, n. 19. Presumably, that is why the state has not urged upon us any such purported distinction.

Under the above authorities, the defendant was entitled to an order granting his motion to suppress directed to the contraband found in the Federal Express package and the defendant’s statements made subsequent thereto.

We need not address the issue regarding the legality of the later search of the defendant’s apartment where “traces” of cocaine were found. This is so because the controlled substance charged in this case was limited to the substance found in the Federal Express package. The record of proceedings initially filed with this Court was unclear as to whether the crime was possession with intent to sell the 31 grams of cocaine found in the Federal Express package or the traces of cocaine found in his apartment, or both. There was no statement of particulars identifying the substance to which the charge and plea were addressed. Nor did the record contain any transcript of proceedings at the entry of the nolo plea which would, presumably, have included the factual basis supporting the plea pursuant to the requirements of Fla.R.Cr.P. 3.172(a). However, pursuant to our order, the appellant has supplemented the record by filing the transcript of the trial court proceedings which were held upon the entry of the nolo plea. The factual basis presented by the prosecuting attorney in support of the plea referred only to the cocaine found in the Federal Express package. Nothing was said concerning the traces subsequently found at the apartment. Prior to accepting a plea of guilty or nolo contendere, the trial court must receive in the record facts which support the elements of the offense to which the defendant has entered his plea. Williams v. State, 316 So.2d 267 (Fla.1975); Shannon v. State, 406 So.2d 87 (Fla. 1st DCA 1981); Waugh v. State, 388 So.2d 253 (Fla. 2nd DCA 1980); Maselli v. State, 425 So.2d 176 (Fla. 2nd DCA 1983). The facts presented by the prosecutor as a basis for the charge, as mentioned above, were relied upon by the trial judge in accepting the defendant’s plea. It is, therefore, clear that the basis of the charge was the substance found in the Federal Express package and not the traces later found at the apartment.

For the above reasons, the order appealed is Reversed, the order placing the defendant on probation is vacated, and the defendant is discharged from the offense charged in the information.

SMITH and WIGGINTON, JJ., concur.

      . The trial court’s order withholding adjudication and placing the defendant on probation describes the applicable criminal statute erroneously as "F.S. 893.135(a)(b)(l)." The correct statutory reference is Section 893.13(l)(a)l.

      . The offense to which the defendant pled nolo contendere, possession with intent to sell cocaine, was obstensibly a Iesser-included offense of the crime charged in the one-count information. The information charged that the defendant was in "possession of 28 grams (one ounce) or more of a mixture containing cocaine, contrary to Section 893.135(l)(b) 1, Florida Statutes.” Although the information does not allege all of the essential elements of the crime of possession with intent to sell cocaine under Section 893.13(l)(a)l, neither party has raised the issue of whether the offense to which the defendant pled was, in fact, a Iesser-included offense of the crime charged.

      . In explaining the delay in execution of the warrant, Fussell testified that he wanted to put some time between the controlled buy and the execution of the warrant in order to avoid compromising the confidentiality of the informant. He also was hoping that the additional cocaine would be delivered to the apartment before the warrant's execution so that they could remove as much cocaine as possible from "the street.”

      . No issue has been made as to the reliability of the informant.

      . This was the only evidence submitted at the suppression hearing regarding any statements made by the defendant at the police station. It is not clear whether the defendant was referring to the cocaine discovered at his apartment or the cocaine earlier seized from his automobile.

      . The same distinction exists between the case sub judice and the circumstances involved in Baxter v. State, 390 So.2d 475 (Fla. 1st DCA 1980), a case relied upon by the state, and in Comparato v. State, 419 So.2d 1131, 1133 (Fla. 1st DCA 1982).

      . The court in Ross, although adhering to its holding in Sanders, see 456 U.S. at 824, 102 S.Ct. at 2172, receded from some of Sanders’ broad language such as the suggestion in Sanders that “a warrantless search of a container found in an automobile could never be sustained as part of a warrantless search of the automobile itself.” 456 U.S. at 814, 102 S.Ct. at 2167.

      . The state suggests that the fact that the defendant sought to suppress the traces of cocaine found at the apartment as well as the 31 grams found earlier in the Federal Express package means that the state’s charging document necessarily included the apartment substance. We cannot agree with that logic.

      . The state's reliance upon our decision in Fitzpatrick v. State, 414 So.2d 1121 (Fla. 1st DCA 1982), is misplaced. There, we held that the failure to ascertain the factual basis for a negotiated plea of guilty was an insufficient basis for reversal absent a showing by the defendant of prejudice or manifest injustice. That case is inapposite. Also, we note that if the state had relied, for a factual basis for the offense, upon the evidence presented at the motion to suppress hearing, it would have been proper for the trial court to have also relied thereon in which case it might reasonably be inferred that the crime charged in the information encompassed the traces of cocaine found in the apartment as well as the cocaine recovered from the Federal Express package inasmuch as the evidence which was presented at such hearing included references to the substance found at the apartment. However, that is not what occurred, it being clear from the record of the proceedings conducted upon the entry of the nolo plea that the state relied solely upon the contents of the Federal Express package as the factual basis for the crime charged, the trial court having requested the prosecuting attorney to present the facts supporting the charge in order to comply with the requirements of Rule 3.172(a). See Williams v. State, supra, 316 So.2d at 273.


text:
    KOLMEL PLUMBING, INC. and Ina/Aetna, Appellants, v. Guy L. KOLMEL, Appellee.
    No. AU-212.
    District Court of Appeal of Florida, First District.
    April 11, 1984.
    James M. Hess of Driscoll,. Langston & Kane, Orlando, for appellants.
    George E. Nader of Trenan, Simmons, Kemker, Scharf, Barkin, Frye & O’Neill, Tampa, for appellee.
   ON MOTION FOR REHEARING

PER CURIAM.

The court sua sponte dismissed the appeal filed in this cause on the grounds that the order appealed was a non-appealable interlocutory order. The appellants have filed a motion for rehearing alleging that there are no mature undisposed of issues to be decided except attorney’s fees. The appellee has filed no response contending that there are any other undisposed issues which are mature. The deputy commissioner is authorized to retain jurisdiction for the purpose of determining both entitlement to and amount of an attorney’s fee and the retention of jurisdiction for this purpose does not render an order interlocutory and unappealable. The order of dismissal of this cause is therefore vacated and the appeal is reinstated and will be considered on the merits.

SHIVERS, JOANOS and THOMPSON, JJ., concur.


author: COWART, Judge.

text:
    Larry JACKSON, Appellant, v. STATE of Florida, Appellee.
    No. 82-1443.
    District Court of Appeal of Florida, Fifth District.
    April 12, 1984.
    James B. Gibson, Public Defender, and Larry B. Henderson, Asst. Public Defender, Daytona Beach, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Evelyn D. Golden, Asst. Atty. Gen., Dayto-na Beach, for appellee.
   COWART, Judge.

We hold that a motion made by appointed defense counsel for a continuance in order to prepare for trial is effective to waive a prior pro se demand for speedy trial filed under Florida Rule of Criminal Procedure 3.191(a)(2). The defense of a criminal charge is a serious, highly technical undertaking and some one person must be in charge of tactics and strategy and ready for trial. A demand for a speedy trial is not made in good faith and is not valid if the defense is not ready for trial. Defense counsel cannot be ready and not ready for trial at the same time. When a defendant charged with crime has an attorney it is the responsibility of the attorney to know when the defense is ready or not ready for trial. See Judge Cobb’s consideration of this problem in Dickey v. Honorable Raymond T. McNeal, 445 So.2d 692 (Fla. 5th DCA 1984).

AFFIRMED.

DAUKSCH and FRANK D. UP-CHURCH, Jr., JJ., concur.


text:
    John Lee CAVAELLO a/k/a Robert P. Cavallo, Appellant, v. STATE of Florida, Appellee.
    No. 82-1694.
    District Court of Appeal of Florida, Fifth District.
    April 12, 1984.
    James B. Gibson, Public Defender, and Christopher S. Quarles, Asst. Public Defender, Daytona Beach, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Richard B. Martell, Asst. Atty. Gen., Day-tona Beach, for appellee.
   PER CURIAM.

AFFIRMED. See Salas v. State, 246 So.2d 621 (Fla. 3d DCA 1971).

DAUKSCH, COBB and FRANK D. UP-CHURCH, Jr., JJ., concur.


author: COBB, Judge.

text:
    Henry HARVEY, Appellant, v. STATE of Florida, Appellee.
    No. 83-255.
    District Court of Appeal of Florida, Fifth District.
    April 12, 1984.

      Aaron A. Green, P.A., Gainesville, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Sean Daly, Asst. Atty. Gen., Daytona Beach, for appellee.
   COBB, Judge.

Appellant, Henry Harvey, was convicted below of keeping a gambling house pursuant to section 849.01, Florida Statutes (1981). He raises three issues on appeal: (1) the trial court’s admission into evidence of his beverage license, which was procured through prosecutorial misconduct; (2) sufficiency of the evidence; and (3) prejudice resulting from an erroneous standard jury instruction. Because of our determination in regard to the third issue, we do not consider the other two.

At the jury trial the state presented only one witness, Alphonzo Junious, an officer for the State Division of Alcohol, Beverage and Tobacco. From April 13, 1982, through July 9, 1982, Junious, in an undercover capacity, visited a bar in Marion County called the “Hi Neighbor Store” on nineteen occasions. Harvey was the licensee of that bar, according to the license records of the Department. During his nineteen visits, Junious observed gambling on some five occasions, and Harvey was present and personally involved on two of those occasions.

At the jury instruction conference the trial court, without objection, decided upon the following instructions adapted from the Florida Standard Jury Instructions, § 849.-01-B, Permitting Gambling:

THE COURT: [T]he state must prove the following two elements beyond a reasonable doubt:
First, that Henry Harvey in person or by a servant, clerk or agent, or acting as servant, clerk, agent or employee had direct or indirect charge or control or management of the establishment alleged in the information; and second that Henry Harvey habitually solicited or knowingly permitted gambling at that place.
A single instance or rare and isolated instances of placing bets or gambling would be insufficient to constitute the crime, but if the place was used at frequent intervals as a place or means for betting, gaming or gambling, the crime has been committed even if the principal use of the place was for some other lawful purpose.
It is not necessary to prove that the defendant have the sole and exclusive control or management of the place. It is sufficient if the control or management was exercised jointly with others. But a person would not be guilty of this crime unless that person had sufficient control or management of the place to carry with it the authority to deny or forbid that use of the place.
It is not necessary that the defendant have any personal interest in the gambling or in the use of the place for gambling.
Gambling is a game of chance in which the participant risks money or property on the outcome with the expectation of gaining or losing as a result of the game. (Emphasis added.)

Defense counsel stated that he had no objection to this instruction at that time. Defense counsel also failed to object during closing argument when the state attorney told the jury:

STATE ATTORNEY: ... The second element that the state has to prove is that the defendant habitually — I can’t say it like Mr. Green, but I’ve tried — solicited. That means a lot. That means time after time after time after time after time after time. But right after the word “habitually solicted” comes a simple two-letter word, and that simple two-letter word is “or.”
Well, I don’t think you’re going to get any instruction whatsoever what the definition of “or” is, but based on your common sense, it’s like an either/or situation, either he habitually solicited or knowingly permitted gambling at that place.
# * * * * *
... I’d suggest to you again that gambling doesn’t have to be — this crime doesn’t have to be habitually because of that one two-letter word “or.” The law is, I think the judge will tell you when he reads the instructions, either habitually soliciting, going out and trying to get people to join in these games, or knowingly permitted, and the clearest evidence of knowingly permitted is to actually engage in the game.

During deliberations, the jury, understandably confused, returned with a request for reinstruction on the point concerning “habitual knowledge or habitual occasions or knowledge.” At that time the defense counsel did' object to the court repeating the original instruction. Defense counsel at that time said:

Well, I object to giving it in the form that it appears in this book, Your Honor, and rely on this Ferguson Supreme Court case, because this case here says that habitual use is absolutely a single element. It’s not either/or. It’s single element. I don’t know why that has been modified or how recent this thing is.

The court responded by observing that the instruction he had given was in accordance with that in the instruction book; he then overruled the objection and reinstructed the jury in accordance with the original instruction. The jury then returned with a verdict of guilty, eventuating in this appeal.

In the Second Edition of Florida Standard Jury Instructions in Criminal Cases, at page 201, the instruction herein at issue is set forth as follows:

Before you can find the defendant guilty of Permitting Gambling, the State must prove the following two elements beyond a reasonable doubt:
1. (Defendant),
a. [in person or by a servant, clerk or agent,]
b. [acting as servant, clerk, agent or employee,]
had direct or indirect charge, control or management of (place or premises alleged).
2. (Defendant) habitually solicited or knowingly permitted gambling at that place.

After the second element is a note to the judge observing that although the word “knowingly” is implied by the word “permit,” it was added for emphasis to the jury. In doing this, however, the committee unfortunately omitted the word “habitually” from the alternative clause in the element, thereby giving rise to the misconstruction utilized in the closing argument of the prosecutor in this case and the resultant jury confusion. The second element in the instruction book should read: “(Defendant) habitually solicited or habitually permitted gambling at that place.” See Ferguson v. State, 377 So.2d 709 (Fla. 1979).

The ambivalent wording is clarified to some extent by the paragraph following it, and in most cases probably would not result in error when read in its entirety and not misconstrued by the prosecutor in closing argument, as occurred in this case. The trial judge, when confronted with the jury request and the defense objection, apparently felt obligated to rely on the Instruction Book. Unfortunately, trial attorneys and trial judges often fail to recognize that instructions promulgated by a Supreme Court Committee on Standard Jury Instructions, whether criminal or civil, are merely the work product of a conscientious committee and not immutable postulates from Olympus. Committees, after all, sometimes construct camels rather than race horses.

The Florida Supreme Court, in the conclusion of its opinion authorizing the use of the revised instructions relied upon in the instant case, wrote:

The Court hereby authorizes the publication and use of the revised instructions in criminal cases and the instructions in misdemeanor cases, but without prejudice to the rights of any litigant objecting to the use of one or more of such approved forms of instructions. The Court recognizes that the initial determination of the applicable substantive law in each individual case should be made by the trial judge. Similarly, the Court recognizes that no approval of these instructions by the Court could relieve the trial judge of his responsibility under the law to charge the jury properly and correctly in each case as it comes before him. This order is not to be construed as any intrusion on that responsibility of the trial judges.

See In the Matter of the Use by Trial Courts of Standard Jury Instructions in Criminal Cases, 431 So.2d 594, 598 (Fla. 1981).

The trial judge in this case should have corrected the misleading instruction. This instruction, the prosecutor’s repeated misstatements of the law and the obvious jury confusion deprived Harvey of a fair trial so as to constitute fundamental error which requires reversal even in the absence of timely objections. Wilson v. State, 294 So.2d 827 (Fla.1974); Jones v. State, 449 So.2d 313 (Fla. 5th DCA 1984); Peterson v. State, 376 So.2d 1230 (Fla. 4th DCA 1979), cert. denied, 386 So.2d 642 (Fla.1980).

REVERSED and REMANDED FOR NEW TRIAL.

DAUKSCH and FRANK D. UP-CHURCH, Jr., JJ., concur.

      . Section 849.01 provides: Keeping Gambling Houses, etc. — Whoever by himself, his servant, clerk or agent, or in any other manner has, keeps, exercises or maintains a gaming table or room, or gaming implements or apparatus, or house, booth, tent, shelter or other place for the purpose of gaming or gambling or in any place of which he may directly or indirectly have charge, control or management, either exclusively or with others, procures, suffers or permits any person to play for money or other valuable thing at any game whatever, whether heretofore prohibited or not, shall be guilty of a felony of the third degree, punishable as provided in section 775.082, section 775.083, or section 775.084.


author: COWART, Judge. DAUKSCH, Judge,

text:
    Gary Evan JOHNSON, et al., Appellants, v. Salvatore B. DEANGELO, etc., Appellee.
    No. 83-496.
    District Court of Appeal of Florida, Fifth District.
    April 12, 1984.

      Ronald L. Harrop of Gurney & Handley, P.A., Orlando, for appellants Gary Evan Johnson, Willie D. Johnson, and Mary S. Johnson.
    Duncan B. Dowling, III, of Rogers & Dowling, P.A., Orlando, for appellant Government Employees Ins. Co.
    Joseph H. Williams of Troutman, Parrish, Williams & Blankenship, P.A., Winter Park, for appellee.
   COWART, Judge.

Mary S. Johnson’s name, together with that of her husband, Willie D. Johnson, Jr., was on the title certificate of the motor vehicle operated by their son, Gary Evan Johnson, at the time of the accident that resulted in a wrongful death. Mrs. Johnson intentionally caused her name to be placed on the title certificate, it did not happen by accident or without her knowledge and consent, nor did she hold her formal ownership interest in the vehicle as a mere security device or because she had made a good faith but ineffectual attempt or effort to transfer her title interest. Her subjective intent or reason or motive in causing her name to be placed on the title certificate was legally immaterial and, accordingly, her testimony was insufficient as a matter of law to rebut the legal presumption arising from the motor vehicle title certificate itself and insufficient to avoid the legal consequences of that fact. Accordingly, the trial court did not err in directing a verdict and ruling as a matter of law on the issue of Mrs. Johnson’s vicarious liability for the damages caused by the operation of the vehicle by her son.

The collateral source statute (§ 627.7372(1), Fla.Stat. (1983)), plainly states that it relates to “... any action for ... wrongful death arising out of the ownership, operation, use, or maintenance of a motor vehicle...” and this is such a case. Furthermore, it would be incongruous to apply that statute to bar recovery from the tortfeasor for benefits for which a living claimant paid premiums or other compensation but to allow recovery from the same tortfeasor for the same benefits on the claim of an estate for a wrongful death caused by a motor vehicle. Whether or not the statute is good public policy in either event is for the legislature and not the judiciary to decide. Accordingly, we hold (1) the collateral source statute applies to wrongful death actions under section 768.-21, Florida Statutes (1983); and (2) the trial court erred in granting the plaintiff’s motion in limine prohibiting the defendants from mentioning or proving benefits received from collateral sources and in not applying the statute in this case. We reverse the judgment insofar as it gives judgment for the total damages found by the jury verdict in favor of the estate and direct, on remand, that the trial court deduct from such damages all benefits received from collateral sources as provided in the statute.

To facilitate the establishment of statewide uniformity we hereby certify the following question to be of great public importance:

DOES THE COLLATERAL SOURCE STATUTE (§ 627.7372(1), FLA.STAT. (1983)) APPLY TO AN ACTION FOR WRONGFUL DEATH BROUGHT UNDER SECTION 768.21, FLORIDA STATUTES (1983), AND ARISING OUT OF THE OWNERSHIP, OPERATION, USE OR MAINTENANCE OF A MOTOR VEHICLE?

AFFIRMED in part; REVERSED in part; and REMANDED.

FRANK D. UPCHURCH, Jr., J., concurs.

DAUKSCH, J., concurs in part; dissents in part, with opinion.

DAUKSCH, Judge,

concurring in part; dissenting in part:

I agree the collateral source rule should be equally and fairly applied to actions for wrongful death and actions for non-fatal injuries. In my opinion the appellee has put a strained interpretation upon the words “or that were paid by or on behalf of the decedent” in Section 768.21(6)(b), Florida Statutes (1979). I do not read that statute to include payments made from “collateral sources” as meant in Section 627.7372(1), Florida Statutes (1979):

In any action for personal injury or wrongful death arising out of the ownership, operation, use, or maintenance of a motor vehicle, the court shall admit into evidence the total amount of all collateral sources paid to the claimant, and the court shall instruct the jury to deduct from its verdict the value of all benefits received by the claimant from any collateral sources.

My disagreement with the majority is in the disposition of the matter. I would reverse the judgment and remand the matter for a remittitur or a new trial. Thus, I would give the plaintiff an opportunity to present the matter in its entirety, with all proper evidence and instructions, to a jury fully advised; or to give back the proper amount by way of remittitur.


text:
    Gary E. BRINSON, Trustee, Appellant, v. Cyrus L. LULEY and Wayne J. Tidwell, Appellees.
    No. 83-770.
    District Court of Appeal of Florida, Fifth District.
    April 12, 1984.

      Robert T. Westman of Stromire, West-man, Lintz, Baugh, McKinley & Antoon, P.A., Cocoa, for appellant.
    Thomas E. Thoburn, Cocoa, for appel-lees.
   COBB, Judge.

This is an appeal from a summary judgment granting specific performance on a contract to convey real property in Brevard County, Florida. The plaintiffs below, Cyrus L. Luley and Wayne J. Tidwell d/b/a Leaseco Investments (hereinafter Leaseco), entered into a contract with Gary Brinson, as Trustee (hereinafter Brinson), whereby the latter agreed to purchase from Leaseco certain real property, with a closing date scheduled for August 1, 1981. Thereafter, the parties entered into another agreement acknowledging that a third party, First Interstate Development Corp., had filed a civil action claiming that it owned approximately two acres of the property which Leaseco was to convey to Brinson. Lease-co and Brinson agreed to proceed with the closing on all but the disputed portion of the property, and Leaseco agreed to defend the civil action and to notify Brinson of its progress.

The parties then entered into another contract for purchase and sale of the disputed two acres and executed an addendum thereto wherein Brinson agreed that First Interstate’s claim did not constitute a title defect and that the sale and closing would take place on August 1, 1981, in spite of the existence of the action. The parties subsequently modified the addendum by an agreement dated June 16, 1981, containing the following provision, referred' to as Paragraph 4, which is the subject matter of this suit:

Buyer acknowledges having received notice of the filing of the civil action wherein First Interstate Development Corporation is Plaintiff and the Sellers, together with the Barbe J Corp., are Defendants, said civil action being identified by no. 81-5589-CA-B, in the Circuit Court of Brevard County, Florida, wherein claim is made by said Plaintiff that Plaintiff is the owner of all of the property which is the subject matter of this contract. Buyer and Sellers agree that the sale and closing of this contract shall not take place until the ownership of the subject property is resolved through successful termination of said suit, or settlement thereof, and in the event that it is determined in said action that the Plaintiff owns the subject property, the $15,-000.00 deposit remaining with Sellers’ attorney shall be returned to the Buyer, in lieu of any other remedies, and the parties obligations hereunder shall be null and void. In the event that successful termination is obtained, evidence of same shall be delivered to the Buyer, and the Buyer agrees to close this transaction within thirty days of receipt of notice of the successful termination thereof. Provided, however, that in the event said civil action is not terminated and the title to the subject property resolved on or before August 1, 1982, then in that event, the Buyer, at Buyer’s sole option, may elect to terminate its obligations to perform this contract, thereby entitling it to a refund of $15,000.00 of the deposit monies referred to in Paragraph 11(a).

On July 30, 1982, First Interstate and Leaseco entered into a settlement stipulation. The stipulation was filed with the circuit court on July 30, 1982, and Lease-co’s attorney notified Brinson by letter of the written stipulation, which notification Brinson received on July 30, 1982. The pertinent provisions of the stipulation are as follows:

6. Plaintiffs shall provide a quit claim deed and/or other documents as may be required by Gary E. Brinson to properly clear any interest which they may have in the disputed strip of land. Said document or documents shall be held by Gary E. Brinson, subject to an escrow delivery, until closing of the contract. On closing, Gary E. Brinson shall have full authority to record the document or documents so delivered in order to clear plaintiffs’ interest to the disputed strip of land, if any, of record.
7. Immediately on closing, the sum of Twenty Thousand One and No-100 ($20,-001.00) Dollars shall be paid over to John M. Starling, attorney for plaintiff, ... as full consideration for relinquishment by plaintiff of any interest which it may have had in the disputed property.
8. On closing and delivery of the documents and funds as above provided, the parties shall cause an appropriate stipulation of dismissal with prejudice to be filed with the court with a request that an order of dismissal be entered.

On August 18, 1982, Brinson notified Leaseco by letter that his clients felt Lease-co had failed to fulfill the requirements set forth in Paragraph 4 of the contract, and therefore demanded that Leaseco refund the $15,000.00 deposit. On August 26, 1982, Leaseco filed a complaint against Brinson, seeking specific performance of the contract, and Brinson filed a counterclaim seeking a return of the deposit.

Brinson’s position below, and on appeal, was that he was not obligated to go through with the sale because there was no formal dismissal of the suit on or before August 1, 1982. It is clear that as of that date the action between First Interstate and Leaseco had not been formally dismissed because Leaseco had not been paid the $20,001.00 pursuant to the settlement stipulation. Leaseco’s position was that it had satisfied the conditions of Paragraph 4 by reason of the settlement stipulation communicated to Brinson prior to August 1, 1982, and that marketable title would have been conveyed to Brinson pursuant to that agreement at the time of closing. Both parties moved for summary judgment, and agreed at both trial and appellate levels that there was no genuine issue as to any material fact, and no further evidence necessary for a determination by the trial court. See Sanders v. Wausau Underwriters Ins. Co., 392 So.2d 343 (Fla. 5th DCA 1981).

The trial court entered judgment for the plaintiff, Leaseco, granting specific performance conditioned upon Leaseco’s ability to tender marketable title at closing. The judgment further provided for a closing date on or before thirty days from the judgment as agreed upon by the parties, at which time Leaseco was to deliver a warranty deed for the property, conveying a clear and marketable title. The relevant findings by the trial court in its judgment were as follows:

1. Both Luley and Brinson agree that no genuine issue of any material fact exists in this cause and that the matter is now ripe for final judgment determination.
2. Both Luley and Brinson have each moved for Summary Judgment in their favor based on differing legal conclusions and inferences to be drawn from the undisputed facts.
3. The matters presented to the Court to construe the subject agreements of the parties as a matter of law applied to the undisputed facts.
4. Luley and Brinson entered into a purchase and sale contract as to the subject two acres of property clouded by Interstate’s claim. The parties intended that Interstate’s claim to the two acres would be determined by one of two ways, namely, by judgment or settlement.
5. Within the time allowed by the Lu-ley-Brinson contract for the two acres, Luley achieved an executory settlement agreement with Interstate with the express provision that Luley would obtain from Interstate all instruments required by Brinson to render Interstate’s claim a nullity at closing.
6. The basic contract as to the two acres between Luley and Brinson provides on the reverse side in paragraphs K. and R. that instruments may be presented at closing necessary to correct outstanding defects in the title and render the same marketable; and even the escrow closing provisions of paragraph R. contemplate correcting the clearing title defects up to 30 days following the date of closing.
7. Luley could have rendered title marketable at closing pursuant to. the executory settlement agreement Luley had with Interstate.

The basic issue on appeal is whether or not Paragraph 4 of the Addendum to Contract for Sale and Purchase, which was drafted by Brinson, requires that marketable title be clear in Leaseco as of August 1, 1982. While the provision states “title to the subject property” is to be resolved by August 1, 1982, the contract does not in express terms require marketable title by that date. There is also the question of whether or not the written settlement of the action on July 30, 1982, complies with the contractual requirement that the action be “terminated” on or before August 1, 1982. The terms in the contract, such as “resolved” and “terminated,” are not specifically defined, and are subject to different constructions, as is obviously indicated by the opposing arguments in this case.

We further note that Paragraph K of the sale contract allows the sellers to present documents at closing which render title marketable. Thus, unless Paragraph 4 altered this provision by requiring marketability by August 1, 1982, the contract permitted Leaseco to cure the defect at closing which, under Paragraph 4, was to occur within thirty days after seller gave notice to buyer of the termination of the suit with First Interstate.

On appeal, Brinson relies heavily on the case of Chafetz v. Price, 385 So.2d 104 (Fla. 3d DCA 1980). In Chafetz, however, a standard form purchase and sale contract was entered into prior to the third party’s claim, whereas in the instant case Leaseco and Brinson knew of the claim by First Interstate and included a special addendum to deal with the problem. In Chafetz it was clear that at the time of a specific closing date, agreed upon by contract, the sellers could not produce marketable title. Therefore, the buyer was excused for his nonperformance at that time. At a later date, after title had been rendered marketable, the sellers themselves in Chafetz reneged on the contract. Moreover, in Chaf-etz the buyer was not provided with any settlement agreement prior to the scheduled date of closing, as was the situation in the instant case. In the instant case, a thirty-day period was contractually provided following the settlement and notice thereof, during which the seller could obtain documents satisfactory to the buyer to clear the third party’s claim, and the parties were to agree on a mutually convenient time for closing.

In Chafetz the issue turned on whether a land title was marketable on a specific date when closing was scheduled. In the instant case it is clear that marketability of title on August 1, 1982, was not required by the contract, the only requirements on that date being settlement and notice. Not only was notice given in the instant case, but the settlement stipulation was recorded.

The trial court found, and properly so, that the seller could have rendered title marketable at closing pursuant to the exec-utory settlement agreement, noting that Paragraph K of the contract between the parties provides, in part, that the seller shall furnish at closing any corrective instruments that may be required in connection with perfecting the title. The buyer’s argument that there was a possibility that the third party, First Interstate, would not provide corrective instruments at closing was anticipated by the trial court in its summary final judgment by conditioning its order for specific performance on Lease-co’s ability to tender marketable title at that time. All of the facts before the trial court indicated that the seller was, in fact, in a position to convey marketable title on and after August 1, 1982, and would have done so but for the default by the buyer, who refused to agree upon a closing date as required by the contract.

For the foregoing reasons, the judgment of the trial court is

AFFIRMED.

ORFINGER, C.J., and CYCMANICK, M.F., Associate Judge, concur.

      . It is fundamental that doubtful language in a contract should be interpreted most strongly against the party who has selected that language, especially where he seeks to use such language to defeat the contract or its operation. 11 Fla.Jur.2d Contracts § 106.


author: DAUKSCH, Judge.

text:
    HARPER PLUMBING & HEATING CO., INC., a Florida Corporation, Appellant, v. Mrs. Nichole NOEL a/k/a Mrs. Nichole Noel Helliar, Appellee.
    No. 83-856.
    District Court of Appeal of Florida, Fifth District.
    April 12, 1984.
    Robert C. Wattles, Orlando, for appellant.
    No appearance for appellee.
   DAUKSCH, Judge.

This is an appeal from a judgment in a suit to foreclose a mechanic’s lien and a judgment denying counterclaim in that suit.

The sole simple issue for us to decide is whether the appellant is entitled to an attorney’s fee for defending the counterclaim it won. The answer is no because the counterclaim was for damages, not a mechanic’s lien. Just because the main action was for foreclosure of a mechanic’s lien (which appellant lost) does not mean appellant is entitled to a fee under Section 713.-29. It is only the victor in the lien action who is entitled to a fee. Appellant was not the victor.

Affirmed.

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


text:
    In re the Marriage of David W. PERRY, Appellant, v. Pamila D. PERRY, Appellee.
    No. 83-965.
    District Court of Appeal of Florida, Fifth District.
    April 12, 1984.
    Richard H. Whitson, Holly Hill, for appellant.
    Garrett L. Briggs, of Adams & Briggs, Daytona Beach, for appellee.
   DAUKSCH, Judge.

This is an appeal from a judgment in a marriage dissolution case. The principal point on appeal concerns the award of permanent alimony. It is apparent from the record that appellee is potentially capable of supporting herself and should be encouraged to do so. The award of permanent alimony was improper under the dictates of Campbell v. Campbell, 432 So.2d 666 (Fla. 5th D.C.A.1983). We reverse the award of permanent alimony and remand this matter to the trial court to determine a proper period of time for rehabilitative alimony. Of course, if at the end of the period of time it is demonstrated that the appellee has made an honest significant effort and is unable to support herself, then the rehabilitative alimony may be continued for a longer time or converted to permanent alimony. In all other respects the judgment is affirmed.

Affirmed in part; reversed in part.

Remanded.

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


text:
    CONKLIN SHOWS, INC., etc., et al, Appellants, v. Barbara Crowley CLEMENTI, etc., Appellee.
    No. 83-1053.
    District Court of Appeal of Florida, Fifth District.
    April 12, 1984.
    Leslie King O’Neal of Markel, McDo-nough & O’Neal, Orlando, for appellants.
    Horton Perse & Ginsberg, Miami, and Nance, Cacciatore & Sisserson, Melbourne, for appellee.
   PER CURIAM.

This case was tried to a jury on the issues of negligence and contributory (comparative) negligence. The trial court directed a verdict as to the plaintiff’s lack of contributory negligence. We hold that there was no error in the trial judge’s denial of a motion for mistrial made on the ground that plaintiff’s counsel, in closing argument, informed the jury that they would not hear further about the issue of the plaintiff’s negligence because the trial court had ruled as a matter of law that the plaintiff was not negligent.

AFFIRMED.

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


author: GRIMES, Acting Chief Judge.

text:
    Colleen STEIL, Appellant, v. FLORIDA PHYSICIANS’ INSURANCE RECIPROCAL, and A. Ronald Walker, M.D., Appellees.
    Nos. 83-1082, 83-1083.
    District Court of Appeal of Florida, Second District.
    April 13, 1984.

      Lee S. Damsker of Maney & Damsker, Tampa, for appellant.
    William C. Blake, Jr. and H. Dennis Rogers of Blake & Associates, Tampa, for ap-pellee Florida Physicians’ Ins. Reciprocal.
    F. Ronald Fraley and Timón V. Sullivan, Trial Counsel, and Charles P. Schropp and Raymond T. Elligett, Jr., Appellate Counsel, of Shackleford, Farrior, Stallings & Evans, P.A., Tampa, for appellee A. Ronald Walker, M.D.
   GRIMES, Acting Chief Judge.

In this complicated malpractice action, the injured plaintiff settled her claim against the defendant doctor by acquiring an assignment of his rights against his insurance carrier and then discharging him from liability. She now asserts her right to recover the settlement figure from the insurance carrier which had previously denied coverage to the doctor.

Appellant-plaintiff (Steil) sued Dr. A. Ronald Walker (Walker), a physician specializing in psychiatry, and Florida Physicians’ Insurance Reciprocal (carrier). In her third amended complaint she alleged that she became Walker's patient and that he failed to properly diagnose and treat her condition. During the course of treatment, Walker pursued “a course of conduct in which he allowed a counter-transference of his personal feeling to plaintiff, contrary to accepted psychiatric standards.” Steil claimed that such negligent course of conduct caused her extensive and permanent psychiatric injury and humiliation.

The complaint went on to recite that Steil filed a malpractice claim against Walker. It was further alleged that Walker’s insurance carrier denied that the claim was covered under the policy and wrongfully refused to provide Walker with a defense. Ultimately, Steil and Walker entered into a written stipulation and agreement for settlement of all claims. Walker acknowledged that he was obligated to Steil for $35,000 in damages, and he also gave her a written assignment of all his rights and causes of action against the carrier as they related to Steil’s claim except claims for attorney’s fees. As part of the settlement, Steil released Walker from further liability and dismissed her claim for malpractice against him. Steil asserted that her claim against Walker was within the coverage of the policy and demanded damages from the carrier of $35,000.

In a second count of the complaint, Steil sought a declaratory interpretation of the settlement agreement with Walker. She also prayed that if the agreement were interpreted contrary to her view, the court should declare the agreement to be without consideration so that she could proceed against Walker. In count III she alleged what she described as a breach of Walker’s agreement to pay her $35,000.

The court granted both defendants’ motions to dismiss. When it appeared that Steil did not wish to amend her pleadings further, the court, dismissed the third amended complaint with prejudice. Steil then filed separate appeals with respect to each defendant. She contends before this court that she has sufficiently stated a cause of action against both.

Walker’s policy contains the customary “no action” clause which provides that no action can lie against the carrier until the insured’s obligation to pay has been finally determined, either by judgment against him after actual trial or by written agreement entered into by the carrier. The carrier’s position is that since neither of these events has occurred Steil cannot maintain her suit.

Steil relies upon the general rule that if an insurer wrongfully refuses to defend, an insured is entitled to make a reasonable settlement without requiring the suit to be carried to judgment even though the policy purports to avoid liability for a settlement made without the insurer’s consent. Phoenix Assurance Co. v. Hendry Corp., 267 So.2d 92 (Fla. 2d DCA 1972), cert. discharged, 277 So.2d 532 (Fla.1973); Cunningham v. Austin Ford, Inc., 189 So.2d 661 (Fla. 3d DCA 1966), cert. dismissed, 198 So.2d 829 (Fla.1967). The carrier responds, however, by pointing out that Walker has neither paid nor become obligated to pay any monies in satisfaction of Steil’s claim. The carrier argues that since its policy obligations are predicated upon Walker’s liability, it cannot be held responsible when Walker has been discharged from liability without making any payment.

There is no Florida case in point, although the Fifth Circuit Court of Appeals in Coblentz v. American Surety Co., 416 F.2d 1059 (5th Cir.1969), endeavored to apply Florida law to a rather similar factual situation. In that case the insured stipulated with the claimant for entry of a $50,000 judgment against him after the insurance carrier withdrew its defense. Despite the fact that it was later determined that coverage existed, the trial court directed a verdict for the insurer because the stipulated judgment provided that it could only be satisfied from the insured’s liability policy. The court of appeals reversed and ruled that by virtue of the insurer having elected to leave the insured to his own defenses, it could not later complain about the form of the judgment. Since there was no evidence that the stipulated judgment was tainted by fraud or collusion, the court directed the entry of a judgment against the insurer for $50,000.

In addition to Coblentz, a slim majority of other jurisdictions permit an injured plaintiff to recover from the insurer despite the existence of a covenant between the plaintiff and the insured to seek relief only from the insurer. State Farm Mutual Automobile Insurance Co. v. Paynter, 122 Ariz. 198, 593 P.2d 948 (Ariz.Ct.App.1979); Zander v. Casualty Insurance Co., 259 Cal.App.2d 793, 66 Cal.Rptr. 561 (1968); American Family Mutual Insurance Co. v. Kivela, Ind.App., 408 N.E.2d 805 (1980); Miller v. Shugart, 316 N.W.2d 729 (Minn. 1982); Metcalf v. Hartford Accident & Indemnity Co., 176 Neb. 468, 126 N.W.2d 471 (1964); Griggs v. Bertram, 88 N.J. 347, 443 A.2d 163 (1982); contra Bendall v. White, 511 F.Supp. 793 (N.D.Ala.1981); American Casualty Co. v. Griffith, 107 Ga.App. 224, 129 S.E.2d 549 (1963); Huffman v. Peerless Insurance Co., 17 N.C. App. 292, 193 S.E.2d 773, cert. denied, 283 N.C. 257, 195 S.E.2d 689 (1973); Stubblefield v. St. Paul Fire & Marine Insurance Co., 267 Or. 397, 517 P.2d 262 (1973). In each of these cases except Griffith, a consent judgment was actually entered against the insured, along with an agreement that the plaintiff would seek only to execute against the insured’s liability policy. However, we do not view the failure of formally obtaining a consent judgment as a meaningful distinction because the courts seldom inquire into the bona fides of a consent judgment, and even the entry of a consent judgment fails to meet the requirements of the no action clause.

By refusing to defend Steil’s claim, the carrier left Walker to his own devices to protect himself in the best way possible. If the refusal was improper, we do not believe that the carrier can now rely upon the “no action” clause to defeat a claim predicated upon the insured’s settlement. Moreover, we hold that the carrier was not necessarily exonerated because Walker was able to obtain his own discharge from liability in the course of reaching an agreement with Steil. Clearly, the intent of Steil and Walker was not to release the carrier. Cf. Fidelity & Casualty Co. v. Cope, 444 So.2d 1041 (Fla. 2d DCA 1984), petition for review granted (Fla. Feb. 6, 1984) (No. 64,825) (holding that an injured party may release a tort-feasor without discharging his insurer from a suit for bad faith).

A further question arises with respect to the insurance issues to be tried. Certainly, the propriety of the carrier’s refusal to defend must be decided because this will control the right of the carrier to rely upon the “no action” clause. Presumably because the duty to defend is usually broader than the duty to indemnify, Florida Farm Bureau Mutual Insurance Co. v. Rice, 393 So.2d 552 (Fla. 1st DCA 1980), petition for review denied, 399 So.2d 1142 (Fla.1981), Steil suggests that the sole issue would be whether the carrier breached its duty to provide a defense for Walker. However, the only effect of a wrongful refusal to defend would be to preclude the carrier from relying upon the “no action” clause. Up to this point, the question of coverage has never been decided. Therefore, as a condition precedent to any recovery against the carrier, Steil will have to prove that her claim against Walker was within the coverage of the policy. We note that in every case in which the plaintiff prevailed under what we have characterized as the majority rule, the issue of coverage was decided in his favor.

The real concern in this type of case is that the settlement between the claimant and the insured may not actually represent an arm’s length determination of the worth of the plaintiff’s claim. In a situation where the insured actually pays for the settlement of the claim against him or where the case is fully litigated at trial before the entry of a judgment, the amount of the settlement or judgment can be assumed to be realistic. Therefore, if the insurer is later determined to have wrongfully refused to defend and the claim is within the coverage, it will be obligated to pay the amount of the settlement or judgment, at least within its policy limits, in the absence of a showing of collusion or fraud. 1 R. Long, The Law of Liability Insurance § 5.14 (1983).

However, in the instant case or one involving a consent judgment with a covenant not to execute, the settlement figure is more suspect. The conduct of an insured can hardly be characterized as fraudulent simply because he stipulates to a large settlement figure in order to obtain his release from liability. He has little or nothing to lose because he will never be obligated to pay. As a consequence, the settlement of liability and damages may have very little relationship to the strength of the plaintiff’s claim. Due to this problem, the ordinary standard of collusion or fraud is inappropriate. See Miller v. Shugart. Thus, we hold that in a case such as this, a settlement may not be enforced against the carrier if it is unreasonable in amount or tainted by bad faith. Moreover, because the circumstances surrounding the settlement will be better known to the party seeking to enforce it, he should assume the burden of initially going forward with the production of evidence sufficient to make a prima facie showing of reasonableness and lack of bad faith, even though the ultimate burden of proof will rest upon the carrier. As stated by the New Jersey Supreme Court in Griggs v. Bertram when it adopted a similar guideline:

This rule reasonably accommodates and compromises the competing interests of the parties and considerations of public policy. It will discourage collusive or overreaching impositions upon insurance carriers and, at the same time, will be conducive toward encouraging settlement and protecting an insured in its efforts amicably to resolve a claim against it after having been abandoned by its carrier.

88 N.J. at 368, 443 A.2d at 174.

The explicit wording of the settlement agreement and the assignment forecloses Steil from making any further claim against Walker. Since these documents have been vindicated by this opinion, Steil’s claims against Walker were properly dismissed.

We affirm the order of dismissal in favor of Walker in case number 83-1082. We reverse the order of dismissal against the carrier in case number 83-1083 and remand for further proceedings.

CAMPBELL and LEHAN, JJ., concur.


author: PER CURIAM. DANAHY, Judge,

text:
    Edward G. McDONALD, Appellant, v. HARDEE COUNTY SCHOOL BOARD, Appellee.
    No. 83-1260.
    District Court of Appeal of Florida, Second District.
    April 13, 1984.
    Edward G. McDonald, appellant, pro se.
    Douglas A. Willis, West Palm Beach, for appellee.
   PER CURIAM.

Appellant seeks to vacate an arbitration award as it relates to his suspension from employment without pay.

Appellant has been a teacher for twenty-two years. For six and one-half years he was a teacher under continuing contract (tenured) at Hardee County High School. On February 2, 1982, appellant’s superintendent recommended that appellant be dismissed from the instructional staff on grounds of gross insubordination and willful neglect of duty. At a hearing on September 29, 1982, the Hardee County School Board issued its final action terminating appellant’s employment effective February 17, 1982, and cancelling his tenured contract with the Hardee County School Board.

Appellant then filed a grievance pursuant to the collective bargaining agreement between the School Board of Hardee County and appellant’s union. A hearing was held before an arbitrator. After making detailed findings of fact, the arbitrator observed:

Adjudged by any reasonable standard, the grievant’s overall conduct during the Fall 1982 term was unacceptable.

He then reviewed the appellant’s major derelictions and stated:

Although there were other deficiencies of a less serious nature (e.g., parking in the parking space reserved for the handicapped), the frequency and severity of the above deficiencies standing alone might constitute just cause for discharge; this would be particularly true where an employee is intransigent in the face of efforts at remediation.

However, the arbitrator found that the school administration had not properly complied with the “NEAT” procedures consisting of (1) notification, (2) evaluation, (3) administrative assistance, and (4) time'for the teacher to make necessary corrections. As a consequence, the arbitrator reduced the discipline from discharge to suspension without pay for the balance of the school year. He also noted that since appellant had found a teaching position elsewhere, his reinstatement would no doubt be followed immediately by resignation.

The appellant filed a motion in circuit court to vacate the arbitration award. Following a hearing the court entered an order confirming the award, and the appellant seeks review of that order.

The specific wording of the arbitration award was as follows:

THE GRIEVANCE IS SUSTAINED. The discipline is reduced from discharge to suspension without pay for the balance of the 1981-82 school year. The grievant’s employment in the Hardee County school system is to be recorded as terminated by the grievant’s resignation and securing employment elsewhere, effective at the end of the 1981-82 school year. The grievant shall receive any terminal pay and other benefits to which he would have been entitled on the basis of a voluntary resignation, including retirement benefits through the 1981-82 school year. He shall not be entitled to reinstatement or back pay. In accordance with Article IV, Section F, the fees and expenses of the Arbitrator shall be paid by the School Board as losing party. [Emphasis added.]

The appellant contends that because the arbitrator stated that the grievance was sustained, he had no authority to do other than order reinstatement with back pay. He relies primarily upon section 231.36(6), Florida Statutes (1981), which states in part:

(6) Any member of the district administrative or supervisory staff and any member of the instructional staff, including any principal, may -be suspended or dismissed at any time during the school year; provided that the charges against him must be based on immorality, misconduct in office, incompetency, gross insubordination, willful neglect of duty, drunkenness, or conviction of any crime involving moral turpitude. Whenever such charges are made against any such employee of the school board, the school board may suspend such person without pay, but if charges are not sustained he shall be immediately reinstated, and his back salary shall be paid. [Emphasis added.]

In evaluating appellant's argument, it is important to appreciate the extent to which an arbitrator’s award is impervious to attack. Such an award may not be vacated upon a mistake of fact or law but only upon one of the statutory grounds. § 682.13, Fla.Stat. (1981); Dairyland Insurance Co. v. Hudnall, 279 So.2d 905 (Fla. 3d DCA 1973). The only ground remotely applicable to this case is whether the arbitrator “in the course of his jurisdiction exceeded [his] powers.” § 682.13(l)(c). We cannot say that the arbitrator acted outside of his jurisdiction in directing appellant’s suspension without Pay.

We do not equate the arbitrator’s conclusion that the grievance was sustained with a finding that the charges against him had not been sustained. In fact, the arbitrator’s report makes it obvious that he believed that appellant’s performance was far from satisfactory. Yet, the arbitrator reasoned that appellant should not be discharged because the school administration had not fully complied with the requisite procedures which are designed to assist a teacher in correcting his shortcomings before he becomes subject to termination.

In a proceeding directed toward the review of an employee’s discharge, the severity of discipline is at least within the scope of matters which are relevant. We see nothing in the collective bargaining agreement or the statute which requires the all or nothing result advocated in the dissent. See Board of Education v. Hess, 49 N.Y.2d 145, 400 N.E.2d 329, 424 N.Y. S.2d 389 (1979).

It is also significant that the parties themselves believed that the degree of discipline was an arbitrable subject. The arbitrator noted that the parties stipulated that the issues to be decided by him would be as follows:

Was the grievant discharged for just cause under the collective bargaining agreement, with specific reference to article VI, and article IV, section G. If not, what shall be the appropriate remedy?

Having originally stipulated that the arbitrator had the authority to modify the discipline, the appellant is now hardly in a position to complain. See. Brotherhood of Railway & Steamship Clerks v. Universal Carloading & Distributing Co., 1 Cal. App.3d 145, 81 Cal.Rptr. 516 (1969).

AFFIRMED.

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

DANAHY, J., dissents with opinion.

DANAHY, Judge,

dissenting.

I respectfully dissent. Since the grievance filed by the appellant challenged the validity of the charges against him, the sustaining of the grievance must be equated with the finding that the charges were not sustained. Regardless of the arbitrator’s comments concerning the level of appellant’s performance, the bottom line is that the grievance was sustained. It matters not that it was sustained because of procedural deficiencies on the part of appel-lee; the fact remains that the grievance was sustained and the charges were not.

I think it important to note that the collective bargaining agreement in this case specifically provides that “nothing contained herein shall be construed to deny or restrict from any teacher the rights he may have under the Florida school laws or other applicable laws and regulations.” The agreement further provides that the arbitrator shall have no power to alter the terms of the collective bargaining agreement. I would hold that the arbitrator, upon sustaining appellant’s grievance, had no choice but to order reinstatement and back pay as specifically provided in section 231.36(4)(c), Florida Statutes (1983). I cannot agree that the submission to the arbitrator of the question “What shall be the appropriate remedy?” constituted a waiver by the appellant of the statutory right to which he is clearly entitled.

In sum, I would reverse on the basis that the arbitrator acted outside the scope of his authority in making the award. The cases from New York and California cited in the majority opinion are not comparable to the situation in this case. Neither case involved the discharge of a tenured teacher; neither involved a clear statutory right of a tenured teacher to full reinstatement in the event charges against him are not sustained.


text:
    STATE of Florida, Appellant, v. Jose P. ALBANEZ, Appellee.
    No. 83-2011.
    District Court of Appeal of Florida, Second District.
    April 13, 1984.
    Jim Smith, Atty. Gen., Tallahassee, and Theda James Davis, Asst. Atty. Gen., Tampa, for appellant.
    John Demmi, Tampa, and Franklyn Le-venson, Miami, for appellee.
   CAMPBELL, Judge.

Appellant, the State of Florida, seeks review of the trial court’s order granting appellee’s motion for discharge. We reverse.

The issue on appeal is whether a waiver of the 180-day speedy trial rule in Rule of Criminal Procedure 3.191(a)(1), prior to the entry of a nolle prosequi of an information, is effective as to a subsequently filed indictment based on the same episode.

Appellee, Jose P. Albanez, was arrested May 8, 1982, and charged by information with introduction of cannabis into the State of Florida in violation of section 893.-13(l)(d), Florida Statutes (1981). Counsel for defense was granted four continuances. On December 3, 1982, a nolle prosequi was filed. On April 28, 1983, appellee was charged by indictment with eight counts of trafficking in cannabis, criminal conspiracy to traffic in cannabis and cocaine into the State of Florida. The original information and count III of the indictment were based on the same criminal episode.

Appellee filed a motion for discharge, directed to count III of the indictment, under rule 3.191 and State v. Bacon, 385 So.2d 1160 (Fla. 2d DCA 1980), on September 9, 1983. Under Bacon, this court held that a defendant who waives speedy trial must be brought to trial within 180 days following his arrest, plus the period of time elapsing between the waiver of speedy trial and the dismissal of the original information. Appellee claimed he was entitled to be brought to trial within 316 days following his arrest: (1) 180 days under the speedy trial limitation, and (2) 136 days attributable to defense delays. The trial court, relying on Bacon, granted the motion for discharge and adopted the defense pleadings.

We find that the trial court erred by applying the formula described in Bacon. Shortly after Bacon, the Florida Supreme Court decided Butterworth v. Fluellen, 389 So.2d 968 (Fla.1980), and held that after a defense continuance, the 180-day speedy trial rule no longer applies. Id. at 970, citing State ex rel. Butler v. Cullen, 253 So.2d 861 (Fla.1971). In Fluellen, the court indicated that the defendant must reactivate his right to speedy trial by filing a demand for speedy trial under Rule of Criminal Procedure 3.191(a)(2) or a motion for discharge which is denied under Rule of Criminal Procedure 3.191(d)(3); without such action, the statutorily provided speedy trial is waived forever.

Prior to Fluellen, the effect of the continuance was not so clear. In Cullen, cited by Fluellen for the proposition that a defense continuance waives speedy trial, the court also held that the case must be set for trial within a reasonable time. The court went on to say, “In the absence of the time limitation specified in the Speedy Trial rule, the right to a speedy trial is necessarily relative.” Cullen at 863. This court, in addressing cases where a second information was filed following defense continuances under the original information, followed Cullen by enlarging or tolling the 180-day speedy trial limitation relative to the amount of delay attributable to the defendant. See Bacon; Swanson v. Love, 290 So.2d 112 (Fla. 2d DCA 1974); Griffith v. State, 299 So.2d 618 (Fla. 2d DCA 1974). Under Fluellen, the approach of enlarging or tolling the 180-day speedy trial period is improper because the defense continuance clearly waives the speedy trial rule completely and, therefore, unless reactivated by a demand or denied motion for discharge, carries over to a refiled information. This principle was recognized by this court in State v. Vukojevich, 392 So.2d 297 (Fla. 2d DCA 1980). See also State v. Condon, 444 So.2d 73 (Fla. 4th DCA 1984); State v. Cocalis, 443 So.2d 138 (Fla. 3d DCA 1984); Conner v. State, 398 So.2d 983 (Fla. 1st DCA 1981); State v. Brown, 394 So.2d 218 (Fla. 5th DCA 1981).

For the foregoing reasons, we find that appellee’s waiver of speedy trial, prior to the entry of the nolle prosequi on the original information, carried over to count III of the subsequent indictment. Therefore, the speedy trial limitation had not run as to the indictment. We reverse the trial court’s order granting appellee’s motion for discharge.

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


text:
    Ronnie NEAL, Appellant, v. STATE of Florida, Appellee.
    No. 83-2172.
    District Court of Appeal of Florida, Second District.
    April 13, 1984.
    Jerry Hill, Public Defender, and Paul C. Helm, Asst. Public Defender, Bartow, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Theda James Davis, Asst. Atty. Gen., Tampa, for appellee.
   PER CURIAM.

Ronnie Neal appeals from his judgment and sentence for involuntary sexual battery.

In the judgment, appellant was ordered to pay $10.00 pursuant to section 960.20, Florida Statutes (1981) (Crimes Compensation Trust Fund), and $2.00 pursuant to section 943.25(4), Florida Statutes (1981) (Law Enforcement Training and Corree-tional Officer Training Trust Fund). Because he is an indigent, appellant argues that the portion of the trial court’s order assessing such costs is improper.

In Jenkins v. State, 444 So.2d 947 (Fla. 1984), the supreme court determined that the assessment of costs under sections 960.20 and 943.25(4) against an indigent defendant is permissible only after the defendant has been given adequate notice of such assessment and full opportunity to object to the assessment. Where no prior notice has been given, this court has stricken the assessment of such costs. Kerney v. State, 445 So.2d 381 (Fla. 2d DCA 1984).

Here, nothing in the record indicates that the appellant was given notice and an opportunity to object to the assessment of costs under sections 960.20 and 943.25(4).

Accordingly, the assessment was not appropriate and is hereby stricken. Our decision is without prejudice to the state to tax these costs in accordance with the procedure outlined in Jenkins.

In all other respects, the judgment and sentence are affirmed.

GRIMES, A.C.J., and RYDER and DAN-AHY, JJ., concur.


author: SCHEB, Judge.

text:
    Jennifer MORRIS, Appellant, v. STATE of Florida, Appellee.
    No. 83-2253.
    District Court of Appeal of Florida, Second District.
    April 13, 1984.
    Jerry Hill, Public Defender, Bartow, and Douglas S. Connor, Asst. Public Defender, Tampa, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Theda James Davis, Asst. Atty. Gen., Tampa, for appellee.
   SCHEB, Judge.

Jennifer Morris appeals from her judgment and sentence for delivery of cannabis.

In addition to placing defendant on probation for two years, the trial court also entered.a final judgment assessing an attorney's fee of $250 and clerk’s costs of $50 against defendant. Because she is insolvent, defendant argues that the attorney’s fee and clerk’s costs should not have been assessed against her.

Attorney’s fees and costs may be assessed against a defendant adjudged insolvent after notice and hearing under section 27.56, Florida Statutes (1981). Anderson v. State, 415 So.2d 49 (Fla. 2d DCA 1982). Here, nothing in the record indicates that defendant was given notice and an opportunity to object to the assessment of attorney’s fees and costs. Drumm v. State, 432 So.2d 765 (Fla. 2d DCA 1983).

Accordingly, the assessment was not appropriate and is hereby stricken. Our decision is without prejudice to the state to assess these fees and costs in accordance with the procedures outlined in section 27.-56.

We see no merit in defendant’s other contention; therefore, in all other respects, the judgment and sentence is affirmed.

OTT, C.J., and HOBSON, J., concur.


author: OTT, Chief Judge.

text:
    STATE of Florida, Petitioner, v. Sharon M. SPENCE, Respondent.
    No. 83-2284.
    District Court of Appeal of Florida, Second District.
    April 13, 1984.
    Jim Smith, Atty. Gen., Tallahassee, and Davis G. Anderson, Jr., Asst. Atty. Gen., Tampa, for petitioner.
    Jerry Hill, Public Defender, and L.S. Al-perstein, Asst. Public Defender, Bartow, for respondent.
   OTT, Chief Judge.

The State of Florida has filed a Petition for Writ of Certiorari seeking review of an appellate decision of the circuit court. We grant certiorari because there was a departure from the essential requirements of law.

The respondent, Sharon M. Spence, was arrested without a warrant and charged with misdemeanor possession of marijuana. She filed a motion to suppress evidence. The county court granted the motion, concluding that probable cause was precluded by this court’s holding in Carr v. State, 353 So.2d 958 (Fla. 2d DCA 1978). On appeal, the circuit court affirmed the trial court.

Carr, as with almost every case concerning the threshold question of probable cause, must be viewed in the light of its particular facts and circumstances. The training and experience of the particular officer, the locale and the total facts and circumstances enter into the reasonableness of the conclusion that criminal activity or contraband is involved.

The following ■ facts were developed at the motion to suppress hearing. Officer Street of the Lakeland Police Department, an officer with seven years’ experience, was on duty at a Lakeland Civic Center rock concert. He had made numerous marijuana arrests at the civic center. A typical rock concert produces twenty to thirty marijuana arrests. He was accompanied by Detective Hunley of the Lakeland Police Department who was likewise fully experienced in the area of narcotics crimes. Detective Hunley had made approximately ninety arrests for possession of marijuana at the civic center, and ninety to ninety-five percent had involved rolling paper.

Prior to the start of the concert, the two officers observed respondent hand rolling cigarettes. The cigarettes were twisted on the ends. In addition to observing respondent rolling, licking, and twisting the cigarettes, the officers noticed that respondent was carefully concealing her activity and invariably stopped her activities whenever passerby approached. Detective Hunley was also convinced that the material being used was marijuana. In all but one case where he had seized hand rolled cigarettes they contained marijuana.

Based on their demonstrated experience and these observations, the officers arrested respondent and seized the cigarettes. Laboratory tests confirmed that the material was indeed marijuana.

We hold that in the light of all the circumstances and the experience, perception, and careful observation of the officers, probable cause existed. The facts available to the officers would “warrant a man of reasonable caution in the belief” that the cigarettes contained marijuana. Texas v. Brown, 460 U.S. 730, 103 S.Ct. 1535, 1543, 75 L.Ed.2d 502 (1983), quoting Carroll v. United States, 267 U.S. 132, 162, 45 S.Ct. 280, 288, 69 L.Ed. 543 (1925). The facts in the instant case are easily distinguishable from the facts in Carr. In Carr, an officer whose experience in the narcotics field was not recounted had approached an individual standing outside his vehicle to determine his identity and reason for being in a residential neighborhood at 10:30 p.m. Although identity and explanation were furnished, the officer, for unstated reasons, chose to examine the interior of the vehicle, using his flashlight. In the process, he observed two hand rolled cigarettes. Cf. State v. Redding, 362 So.2d 170 (Pla. 2d DCA 1978) (distinguishing Carr due to the presence of other circumstances).

The error of the county and circuit courts resulted in a serious miscarriage of justice. The erroneous application of the Carr holding could significantly hamper the efforts of law enforcement personnel to curtail the use of narcotics at public events such as rock concerts.

Petition for Writ of Certiorari GRANTED.

BOARDMAN and RYDER, JJ., concur.


text:
    Armondo VARGAS, Appellant, v. STATE of Florida, Appellee.
    No. 84-202.
    District Court of Appeal of Florida, Second District.
    April 13, 1984.
   PER CURIAM.

Armondo Vargas appeals from the summary denial of his motion for postconviction relief under Florida Rule of Criminal Procedure 3.850.

We have reviewed the motion and find that it was not under oath as required by the court rule. The appeal is therefore dismissed. See Bostrom v. State, 447 So.2d 252 (Fla.2d DCA 1983); Carver v. State, 376 So.2d 899 (Fla.2d DCA 1979); Monroe v. State, 371 So.2d 683 (Fla.2d DCA 1979).

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