author: FRANK D. UPCHURCH, Jr., Judge.

text:
    STATE of Florida, Appellant, v. Leslie Paul JACOBS, et al., Appellees.
    No. 82-807.
    District Court of Appeal of Florida, Fifth District.
    July 28, 1983.
    Rehearing Denied Aug. 29, 1983.
    Jim Smith, Atty. Gen., Tallahassee, and Sean Daly, Asst. Atty. Gen., Daytona Beach, for appellant.
    J. Cheney Mason, P.A., Orlando, and Edwin H. Duff, III, Daytona Beach, for appel-lees.
   FRANK D. UPCHURCH, Jr., Judge.

The state appeals from an order suppressing evidence seized in the search of a residence occupied by appellees Jacobs and Newman. Two issues have been presented: whether the affidavit was sufficient to establish probable cause for issuance of the warrant and whether the warrant was properly executed. We hold that the affidavit was sufficient and that the warrant was properly executed and accordingly reverse the suppression order.

In Illinois v. Gates, - U.S. -, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983), the United States Supreme Court recently reaffirmed the “totality of the circumstances” analysis that traditionally had formed the basis of probable cause determinations. As the Court points out, the task of the issuing magistrate is simply to make a practical, common-sense decision whether, given all the circumstances before him, there is a fair probability that contraband or evidence of a crime will be found in a particular place. The duty of the reviewing court is simply to ensure that the magistrate had a substantial basis for concluding that probable cause existed.

The affidavit in the present case, submitted by Detective Barber provided as follows:

Your Affiant has personally conducted an investigation into these alleged activities of the occupants of nine-zero-one (901) Bonita Drive, Winter Park, Orange County, Florida. I Detective Earl David Barber assigned to the Special Investigation Unit on 07/28/81 had the Winter Park Sanitation Department pick up the garbage from nine-zero-one (901) Bonita Drive, Winter Park, Florida, keep it separate and deliver it to the Winter Park City garage. On 07/28/81 I, Detective Barber personally opened one green plastic bag taken from nine-zero-one (901) Bonita Drive, Winter Park, Florida. Inside the bag your Affiant found personal papers belonging to Nord Bower Newman, also located in the bag by your Affiant was a small amount of marijuana seeds. On 08/18/81 your Affiant again requested that the garbage from nine-zero-one (901) Bonita Drive be picked up. On 08/18/81 several minutes before the garbage was picked up your Affiant observed the garage door open up and a yellow Mustang with a convertible top back out of the drive way. Your Affiant then ran a computer check on the tag number GYF 722, the tag came back to a Nord B. Newman, address nine-zero-one (901) Bonita Drive, Winter Park, Orange County, Florida. On 08/25/81 at 7:00 A.M., I, Detective Barber observed a white male open the garage door of nine-zero-one (901) Bonita Drive walk out and place two plastic trash cans out on the curb. At approximately 9:00 A.M. after the white male left the residence I, Detective Barber along with Officer Cramp-ton picked up the two plastic trash cans and emptied them into a City truck. Upon arrival at the City garage your Affiant found Cannabis seeds. These seeds were placed into a clear plastic bag and sealed. A Becton Dickinson test was performed by this Detective with positive results. The Cannabis seeds will be sent to the crime lab for analysis. Your Affi-ant has probable cause to believe and does believe, based on information received from a confidential source and personal observation made by Affiant and Officer Crampton that one or more of the occupants of nine-zero-one (901) Bonita Drive, Winter Park, Orange County, Florida is in possession of a controlled substance to wit: Cannabis which is in violation of Florida State Statute 893.13.

Whether an affidavit based primarily on the evidence found in the defendant’s trash may be sufficient to support a finding of probable cause does not appear to have been addressed in Florida.

We have, however, reviewed several federal cases in which the supporting affidavits were based, in part, on evidence found in the defendant’s trash. For example, in United States v. Dzialak, 441 F.2d 212 (2d Cir. (1971), cert. denied, 404 U.S. 883, 92 S.Ct. 218, 30 L.Ed.2d 165 (1971), the defendant Dzialak, a driver for Railway Express, was convicted of possessing stolen goods. On two occasions, a Railway Express security investigator had examined Dzialak’s trash and had found invoices, warranties and labels referring to items missing from Railway Express. The security investigator gave this information to the FBI. In seeking a warrant to search Dzialak’s premises, the FBI agent set out the details of the items seized from the trash and the results of Railway Express’s investigation as well as his own corroborative investigation. The court of appeals found that the very lengthy set of facts in the nine-page affidavit was sufficient to justify a finding of probable cause for issuing the warrant.

In United States v. Biondich, 652 F.2d 743 (8th Cir.1981), cert. denied, 454 U.S. 975, 102 S.Ct. 527, 70 L.Ed.2d 395 (1981), the court also upheld the validity of the search warrant. There, a search of the defendant’s trash revealed a baggie containing a small amount of marijuana, a folded piece of paper containing traces of opiate powders, cancelled checks payable to the wife of a man who had pleaded guilty to possession of a large quantity of marijuana and who had been at a residence where evidence of narcotics transactions had been obtained, and pieces of paper containing notations representing large sums of money. An affidavit containing this information and the details of the defendant’s two prior convictions for drug violations were held to be sufficient to support the conclusion that there was probable cause to believe that illegal drugs were present in the defendant’s residence.

Finally, in United States v. Sumpter, 669 F.2d 1215 (8th Cir.1982), a search of the defendant’s garbage revealed a baggie containing marijuana. The court noted that although the evidence gleaned from the garbage search alone might be sufficient, there were other facts to bolster the sufficiency of the affidavit in establishing probable cause. These other facts included information that the defendant had been convicted of drug related charges, the garbage collectors for the defendant’s residence reported to the police that they observed the occupants of three cars enter and leave the residence in a very short time on the morning that the garbage was searched, and the defendant’s neighbors had observed a large amount of short-term traffic at the defendant’s residence. Two of the vehicles observed belonged to persons recently arrested for possession of cocaine or under investigation for drug trafficking.

In the present case, there was no information that appellees had been previously convicted of drug-related offenses, or that they associated with known drug dealers or that they had frequent short-term visitors as in the cases discussed above. While the federal cases clearly provide more information regarding the likelihood that a criminal offense was being committed, the conclusion does not necessarily follow that the facts here are insufficient to establish probable cause. The fact that marijuana and cannabis seeds were found on two separate occasions within one month’s time suggests a continuing violation of the drug laws and indicates a “fair probability” that marijuana or cannabis would be found in the house. We conclude that the judge who issued the search warrant had a substantial basis for determining that probable cause existed and thus the court below erred in suppressing the evidence.

We also hold that the court erred in determining that the warrant was improperly executed. The warrant authorized the search “in the daytime, nighttime or on Sunday as the exigencies of the situation may require.” This language follows the provisions of section 933.10, Florida Statutes (1981):

Execution of search warrant during day or night
A search warrant issued under the provisions of this chapter may, if expressly authorized in such warrant by the judge or magistrate issuing the same, be executed by being served either in the daytime or in the nighttime, as the exigencies of the occasion may demand or require. (emphasis added).

The warrant was executed between 7:30 and 8:00 p.m. on August 28, 1981. Detective Barber testified that he decided to execute the search warrant at that time because he had observed Newman and his neighbors (the police also had a warrant to search the home of Newman’s neighbors) worked during the day. This decision seems entirely reasonable to us and comports with the terms of the search warrant. Simply because some other time may have been available for execution of the warrant does not invalidate the search where, as here, there was no evidence of harassment or bad faith on the part of the police.

REVERSED.

COBB and COWART, JJ., concur.


source: Caselaw Access Project

author: KAPNER, LEWIS, Judge.

license: Public Domain

text:
    GENESIS PUBLICATIONS, INC. and Cycle Guide Publications, Inc., Appellants, v. Anne C. GOSS, Appellee.
    No. 82-659.
    District Court of Appeal of Florida, Third District.
    Aug. 2, 1983.
    Rehearing Denied Sept. 28, 1983.
    Horton, Perse & Ginsberg and Mallory H. Horton, Miami, for appellants.
    Robert J. Galamaga, South Miami, for appellee.
    Before SCHWARTZ, C.J., BARKDULL, J., and KAPNER, LEWIS, Associate Judge.
   KAPNER, LEWIS, Judge.

This lawsuit stems from the publication by defendant, Genesis Publications, Inc., of a nude photograph of plaintiff Anne C. Goss. This publication was without plaintiff’s permission.

The photograph was one of many taken by a photographer pursuant to plaintiff’s desire to develop a portfolio to aid in her efforts at beginning a modeling career. Without plaintiff’s consent, the photographs were given to defendant by an ad agency for use in a commercial advertisement published in defendant’s magazine, Genesis. The plaintiff brought an action for invasion of privacy which resulted in a jury verdict of $100,000 compensatory damages and $400,000 punitive damages. Defendant appealed, claiming that the evidence was insufficient to support either award.

Considering the trial testimony, as well as the nature of Genesis magazine and of the advertisements containing plaintiffs photograph, there is sufficient evidence to justify a verdict of $100,000 compensatory damages. We therefore affirm that award; but, we find no evidence to justify the award of punitive damages.

Defendant conceded that it did not have plaintiff’s permission to publish the photograph even though such permission is specifically required by the statutes of New York, where defendant’s magazine was published, and the statutes of Florida, where the instant complaint was filed. Although we note that the complaint alleges common law invasion of privacy and not a violation of statute, if there was evidence tending to show intentional, wanton and malicious disregard for laws designed to protect people’s rights, the issue of punitive damages would properly be one for the jury. See Winn & Lovett Grocery Co. v. Archer, 126 Fla. 308, 327, 171 So. 214, 221 (1936). However, plaintiff must show more than an intent to commit a tort or violate a statute to justify punitive damages. As stated in Wrains v. Bose, 175 So.2d 75, 78 (Fla. 2d DCA 1965), “[M]ere proof of an intentional tort does not ipso facto entitle the plaintiff to punitive damages .. .. ” 17 Fla.Jur.2d Damages § 120 (1980) citing 22 Am.Jur.2d Damages § 250, is more specific:

Malice ... is not simply the doing of an unlawful or injurious act; it implies that the act complained of was conceived in the spirit of mischief or criminal indifference to civil obligations.

The corporate officer who approved the advertisement in question testified that notwithstanding the requirements of law, his corporation never sought written permission for publication of photographs used for commercial purposes when photographs were obtained from advertising agencies, but that the corporation did seek written permission for publication of editorial photographs. The rationale was that, where photographs were to be used for commercial purposes, it was assumed the advertising agencies would obtain the necessary permission in accordance with the industry practice. If in fact the advertising agency had properly obtained plaintiff’s permission, she would have had no cause of action whatsoever for invasion of privacy.

Nonetheless, the trial court allowed the jury to consider the issue of punitive damages on the sole basis of the corporate officer’s testimony that despite the requirement that permission be obtained, his company never did so, relying instead on the advertising agencies. This conduct was intentional, but not a wanton disregard of plaintiff’s rights.-

The terms “recklessness, wantonness and willfulness,” when used to justify punitive damages implies a knowledge and present consciousness not simply that a statute or right will be violated but that injury will result. See 17 Fla.Jur.2d Damages §§ 120, 122 (1980). Cf. Tallahassee Title Co. v. Dean, 411 So.2d 204 (Fla. 1st DCA 1982); Story v. J.M. Fields, Inc., 343 So.2d 675 (Fla. 1st DCA), cert. denied, 348 So.2d 954 (Fla.1977). Under the circumstances of this case punitive damages are inappropriate.

Accordingly, the verdict as to compensatory damages is affirmed and the verdict as to punitive damages is reversed.

Affirmed in part; reversed in part.

      . N.Y.Civ.Rights Law § 50 (McKinney 1976) provides in pertinent part:
      A person, firm or corporation that uses for advertising purposes, or for the purposes of trade, the ... picture of any living person without having first obtained the written consent of such person ... is guilty of a misdemeanor.
      N.Y.Civ.Rights Law § 51 (McKinney 1976) provides in pertinent part:
      Any person whose ... picture is used within this state for advertising purposes or for the purposes of trade without the written consent first obtained as above provided may ... sue and recover damages for any injuries sustained by reason of such use and if the defendant shall have knowingly used such person’s ... picture in such manner as is forbidden or declared to be unlawful by the last section, the jury, in its discretion, may award exemplary damages.

      . Section 540.08, Florida Statutes (1977) provides in pertinent part:
      (1) No person shall publish, print, display or otherwise publicly use for purposes of trade or for any commercial or advertising purpose the ... photograph, or other likeness of any natural person without the express written or oral consent to such use given by:
      (a) Such person; or
      (b) Any other person, firm or corporation authorized in writing by such person to license the commercial use of his name or likeness ....
      (2) In the event the consent required in subsection (1) is not obtained, the person whose ... photograph, or other likeness is so used ... may bring an action ... to recover damages for any loss or injury sustained by reason thereof ... and punitive or exemplary damages.


author: PER CURIAM.

text:
    Frances B. GLENN, D.D.S., Appellant, v. Rupert Q. BLISS, D.D.S., etc., et al., Appellees.
    No. 83-415.
    District Court of Appeal of Florida, Third District.
    Aug. 2, 1983.
    Rehearing Denied Sept. 21, 1983.
    Finley, Kumble, Wagner, Heine, Under-berg, Manley & Casey and Stephen T. Maher, Miami, Richard Cushing, East Hampton, N.Y., for appellant.
    Jim Smith, Atty. Gen., and Bruce Bark-ett, Asst. Atty. Gen., Salvatore A. Carpino, Tallahassee, for appellees.
    Before SCHWARTZ, C.J., and HUB-BART and DANIEL S. PEARSON, JJ.
   PER CURIAM.

The plaintiff in an action against, inter alia, a state agency and state officers acting in their official capacities seeks review of an order transferring the entire cause to Leon County pursuant to the governmental defendants’ venue privilege to be sued in the county of their headquarters. The only contention presented on appeal is that the “sword wielder” exception to that doctrine applies to this case. We do not agree. Carlife v. Game and Fresh Water Fish Commission, 354 So.2d 362, 365 (Fla.1977).

Affirmed.

      . See Schultz v. Brevard County, 431 So.2d 187 (Fla. 5th DCA 1983).

      . Because the appellant does not invoke or cite Medina v. Florida Department of Transportation, 426 So.2d 1172 (Fla. 3d DCA 1983); compare Lake County v. Friedel, 387 So.2d 514 (Fla. 5th DCA 1980), we do not discuss the applicability of that decision.


text:
    Merle E. BESETT and C. Joseph Czerwinski, Appellants/Cross-Appellees, v. Robert E. BASNETT and Barbara L. Basnett, Appellees/Cross-Appellants.
    No. 82-1871.
    District Court of Appeal of Florida, Second District.
    Aug. 3, 1983.
    Rehearings Denied Sept. 8, 1983.
    Leo Wotitzky of Wotitzky, Wotitzky, Mandell, Batsel & Wilkins, Punta Gorda, and Charles J. Cheves of Cheves & Rapkin, Venice, for appellants/cross-appellees.
    Michael R. Karp of Wood, Whitesell, Karp, Wellbaum, Miller & Seitl, P.A., Sarasota, for appellees/cross-appellants.
   PER CURIAM.

The trial court entered money judgments against the appellant, C. Joseph Czerwinski, pursuant to jury verdicts finding him guilty of both fraud and negligence in connection with a real estate transaction. Since the damages awarded on the negligence claim amounted to a prohibited double recovery, we reverse that judgment. We find no merit in the parties’ other contentions and therefore affirm the trial court in all other respects.

This action arose out of the sale of property from Mr. and Mrs. Besett, to the appel-lees, Mr. and Mrs. Basnett. The appellant, C. Joseph Czerwinski, was the real estate broker representing the Besetts. When the appellees discovered that the land they purchased was roughly one and one-half acres, and not the approximately five and one-half acres they thought they had purchased, they filed suit against the sellers and the real estate broker.

The amended complaint alleged three causes of action. One count of the complaint was tried without a jury and resulted in a judgment for the appellants. The other two counts, fraud and negligence, were submitted to the jury. The count alleging fraud resulted in a verdict against the appellant, Mr. Besett, in the amount of $152,-000 and against the appellant, Mr. Czerwin-ski, in the amount of $18,000. A directed verdict was entered for Mrs. Besett. The appellees’ alternate claim of negligence on the part of the appellant Czerwinski resulted in a verdict against him and an award of damages in the amount of $12,000. The jury also found that the appellees were twenty-five percent negligent, and accordingly, a judgment was entered in the amount of $9,000.

Under the facts of this case, the remedies sought by the appellees were not inconsistent, and accordingly, the claims of fraud and negligence were both properly submitted to the jury. Compare Bill Terry’s, Inc. v. Atlantic Motor Sales, 409 So.2d 507 (Fla. 1st DCA 1982).

However, since double recovery based upon the same element of damages is prohibited, Atlantic Coastline R.R. v. Saffold, 130 Fla. 598, 178 So. 288 (1938), the trial court erred in entering judgments on each of the verdicts. Hillsborough County Aviation Authority v. Cone Brothers Contracting Co., 285 So.2d 619 (Fla. 2d DCA 1973).

The appellees in presenting evidence concerning damages made no distinction between the alternate causes of action, and the proof of damages was the same on both counts. Based upon the evidence, the jury had a basis for awarding damages in the amount of $18,000 on either count of the complaint, but not on both, and therefore the trial court should have entered a judgment only on the count, based upon fraud. Bill Terry’s, Inc. v. Atlantic Motor Sales.

We accordingly reverse that portion of the final judgment which awarded the ap-pellees a net sum of $9,000 on their negligence claim with instructions that it be stricken from the judgment.

Affirmed in part, reversed in part, and remanded.

CAMPBELL, A.C.J., and SCHOONOVER and LEHAN, JJ., concur.


author: LEHAN, Judge.

text:
    Charles G. OLSON, Appellant, v. SOUTHERN STYLE CORPORATION, a Florida corporation, Appellee.
    No. 82-1909.
    District Court of Appeal of Florida, Second District.
    Aug. 5, 1983.
    Rehearing Denied Sept. 9, 1983.
    Charles G. Olson, pro se.
    Howard P. Ross of Battaglia, Ross, Hastings, Dicus & Andrews, St. Petersburg, for appellee.
   LEHAN, Judge.

Charles G. Olson sued Southern Style Corporation to recover unpaid wages that he claimed the corporation owed him. Southern Style defended on the grounds that Olson had been employed not by Southern Style but by Robert Dailey, who was negotiating to purchase the corporation and who was meanwhile running the business.

The trial court found that Olson had been employed by Dailey, who was working for his own account as a prospective purchaser, and that Olson was aware of this situation. The court, therefore, entered judgment for Southern Style Corporation. We affirm. From an examination of the record, we cannot find that the trial court had no basis for its determination. Shaw v. Shaw, 334 So.2d 13, 16 (Fla.1976).

AFFIRMED.

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


author: GRIMES, Judge.

text:
    Allen Z. WOLFSON, Appellant, v. STATE of Florida, Appellee.
    No. 83-1032.
    District Court of Appeal of Florida, Second District.
    Aug. 5, 1983.
    Rehearing Denied Sept. 13, 1983.
    Robert H. MacKenzie, Tampa, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and William I. Munsey, Jr., Asst. Atty. Gen., Tampa, for appellee.
   GRIMES, Judge.

In this appeal from the denial of his motion for postconviction relief, appellant contends that the court was without jurisdiction to enter the probation order which he later violated.

On March 17, 1978, appellant was sentenced to concurrent five year prison terms for convictions of bank fraud and conspiracy to commit bank fraud. On October 6, 1978, the trial judge set aside these sentences and placed appellant on probation for consecutive five year terms. His probation was later revoked for illegal political contributions, and the court sentenced him to two consecutive terms of five years imprisonment. Appellant now contends that he could not be sentenced for a violation of probation because the court was without jurisdiction to originally place him on probation.

This case is controlled by State v. English, 400 So.2d 570 (Fla. 2d DCA 1981), in which this court held that a trial judge had no authority to change a prison sentence into probation. The premise for the ruling was that the granting of probation did not constitute the reduction of a sentence as then authorized by Florida Rule of Criminal Procedure 3.800(b). Accord Stoddard v. State, 388 So.2d 11 (Fla. 2d DCA 1980).

There is another reason why appellant’s probation order was invalid. Ordinarily, a trial judge loses jurisdiction to change a sentence under Florida Rule of Criminal Procedure 3.800(b) after sixty days. White v. State, 404 So.2d 804 (Fla. 2d DCA 1981); Solomon v. State, 341 So.2d 537 (Fla. 2d DCA 1977). If an appeal is taken, the rule extends the time until sixty days after receipt of the appellate mandate. However, the appeal itself removes jurisdiction from the trial judge, thereby eliminating his authority to change the sentence while the appeal is pending. Kelly v. State, 414 So.2d 1117 (Fla. 4th DCA 1982); see Smith v. State, 407 So.2d 399 (Fla. 1st DCA 1981), pet. for rev. denied, 417 So.2d 330 (Fla.1982). Since appellant’s convictions were on appeal to this court on the date the probation order was entered and we had not relinquished jurisdiction for any purpose, the trial judge did not have the authority at that time to make even a proper reduction of the sentences.

The state makes a persuasive argument that appellant should not be permitted to attack his sentences for violating probation after having accepted the benefits of being placed on probation in the first place. If the order placing appellant on probation were merely unlawful, his acceptance of the probation would constitute a waiver to attack the later revocation. King v. State, 373 So.2d 78 (Fla. 3d DCA 1979), cert. denied, 383 So.2d 1197 (Fla.1980). Here, however, the order placing appellant on probation was void for lack of jurisdiction, Phillips v. State, 394 So.2d 233 (Fla. 1st DCA 1981), and a defendant cannot confer jurisdiction by waiver. Sclafani v. County of Dade, 323 So.2d 675 (Fla. 3d DCA 1975).

The appellant’s other point on appeal has no merit.

We reverse the consecutive five year prison sentences. The original concurrent five .year sentences are hereby reinstated. Appellant shall be entitled to credit for any jail time already served on the reinstated sentences as well as on the sentences now being vacated.

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

      . This rule was amended in 1980 to permit the substitution of probation for a prison sentence. The Florida Bar, In re Rules of Criminal Procedure, 389 So.2d 610, 629 (Fla.1980).


author: OTT, Chief Judge.

text:
    DEERFIELD IMPORT-EXPORT, INC., Appellant, v. Virginia F. NEWTON, Appellee.
    No. 83-1049.
    District Court of Appeal of Florida, Second District.
    Aug. 5, 1983.
    Rehearing Denied Sept. 12, 1983.

      Henry P. Trawick, Jr., of Trawick & Grif-fis, P.A., Sarasota, and Coleman, Leonard & Morrison, Fort Lauderdale, for appellant.
    James W. Whatley of Kanetsky, Moore, DeBoer, Horlick & Whatley, P.A., Venice, for appellee.
   OTT, Chief Judge.

This is an appeal from an order denying a motion to abate for improper venue. We reverse.

The following facts are taken from the pleadings and affidavits filed in the lower court. Appellee met with representatives of appellant in Sarasota County. While there she tendered a $10,000 deposit in connection with the purchase of a boat from appellant. A dispute arose and appellee filed suit in Sarasota County for the return of the deposit.

Appellant filed a motion to abate for improper venue, asserting that its office for the transaction of business was in Broward County, it never had an office in Sarasota County, and any acts to be performed would be done in Broward County. Furthermore, the deposit and boat in question were both located in Broward County. The trial court denied the motion, and appellant instituted this appeal.

Appellant is a Florida corporation; therefore, section 47.051, Florida Statutes (1981), applies. This statute limits venue to (1) the county where the corporation has or usually keeps an office for the transaction of business, (2) where the cause of action accrued, or (3) where the property in litigation is located. There is no property involved in this litigation.

For a corporation to transact business in a county within the meaning of the statute, the business transacted must be a part of its usual or ordinary business and must be continuous, not a mere occasional or isolated transaction. Majestic II Enterprises, Inc. v. Butler, 372 So.2d 548 (Fla. 3d DCA 1979). Doing business in a county or having an agent in a county, without more, is not a sufficient basis for venue in a suit against a domestic corporation. U—Haul of Northern Florida, Inc. v. Fuller, 417 So.2d 1102 (Fla. 4th DCA 1982). The pleadings and affidavits in this case reveal that appellant maintains its only office in Broward County and has never had an office in Sarasota County. Furthermore, since it appears that this negotiation and proposed sale in Sarasota County was but an isolated incident, venue under this factor is proper only in Broward County.

As to the other applicable factor, where the cause of action accrued, venue would be proper in Sarasota County only if the act creating the right to bring the cause of action occurred there. See E.J. Sales & Service, Inc. v. Southeast National Bank of Miami, 415 So.2d 906 (Fla. 3d DCA 1982). Appellee’s complaint alleged that appellant was being unjustly enriched by its failure to perform an implied duty to return the deposit funds to which it was allegedly not entitled, a deposit located in Broward County. Therefore, the cause of action accrued where the deposit was being wrongfully retained, Broward County.

Inasmuch as appellant met its burden of showing that appellee’s choice of venue was improper, and there was no showing that appellant waived the statutory venue privilege provided to domestic corporations, we REVERSE and direct that this case be transferred to Broward County in accordance with Florida Rule of Civil Procedure 1.060.

BOARDMAN and DANAHY, JJ., concur.

      . As applicable here, section 47.051, Fla.Stat. (1981), Actions against corporations, provides: Actions against domestic corporations shall be brought only in the county where such corporation has, or usually keeps, an office for transaction of its customary business, where the cause of action accrued, or where the property in litigation is located.


text:
    Ronald VAPRIN, Appellant, v. The STATE of Florida, Appellee.
    No. 82-1367.
    District Court of Appeal of Florida, Third District.
    Aug. 9, 1983.
    Rehearing Denied Sept. 26, 1983.
    Chaykin, Karlan & Jacobs and Sharon Jacobs, Coral Gables, for appellant.
    Jim Smith, Atty. Gen., for appellee.
    Before SCHWARTZ, C.J., and NESBITT and BASKIN, JJ.
   PER CURIAM.

As a part of Vaprin’s agreement to testify for the state in two unrelated cases, he pled guilty to the present charges. After he was sentenced to fifteen years in prison, he moved to vacate the conviction under Fla.R.Crim.P. 3.850 on the asserted ground that the plea had not been knowingly entered supposedly because of the “ineffectiveness” of his own counsel in advising him that he would receive a more lenient sentence. See Brown v. State, 245 So.2d 41 (Fla.1971). The state attorney specifically agreed to the granting ot that motion. We think we are not merely speculating when we suggest that this agreement was (in a way) commendably in accordance with the state’s own previous, unrevealed undertaking to Vaprin with respect to the plea. We fully appreciate and agree with the attitude of the trial judge who, in denying the motion notwithstanding the agreement, expressed his strong disapproval of the fact that he had been misled by both sides, particularly the state, in their failure to apprise him of these facts during the plea and sentencing process. Nonetheless, under the circumstances thus stipulated below, it clearly appears that the appellant entered his guilty plea upon a justifiable misapprehension of its sentencing consequences and therefore must be permitted to withdraw it. Banks v. State, 136 So.2d 25 (Fla. 1st DCA 1962).

The order under review is therefore reversed with directions to grant the defendant’s 3.850 motion and for further appropriate proceedings.

Reversed.

      . Plainly, the state had not outlined the agreement in open court for fear of “benefitting” those against whom Vaprin testified by disclosing the extent of the consideration he would receive for doing so. We express no opinion as to what rights flow to those defendants as a result of any such secretion.

      . In contrast, we cannot be tolerant of the positions taken by the Attorney General’s of-flee before this court. On the one hand, it has most disingenuously sought to deny the existence of the state attorney’s concession and, on the other, most improperly, see Finney v. State, 420 So.2d 639 (Fla. 3d DCA 1982) (en banc), attempted to renege upon it. The state of Florida should not have made and will not be heard even to assert either contention.


text:
    Nicholas Enrique COTES, Appellant, v. The STATE of Florida, Appellee.
    Nos. 82-2184, 82-2448.
    District Court of Appeal of Florida, Third District.
    Aug. 9, 1983.
    Rehearing Denied Sept. 28, 1983.
    Fine, Jacobson, Block, Klein, Colan & Simon and Mitchell R. Bloomberg, Miami, for appellant.
    Jim Smith, Atty. Gen. and Richard E. Doran, Asst. Atty. Gen., for appellee.
    Before SCHWARTZ, C.J., and HUB-BART and FERGUSON, JJ.
   PER CURIAM.

Appellant brings these consolidated appeals from convictions and sentences for kidnapping and grand theft and from a denial of a motion for post-conviction relief pursuant to Florida Rule of Criminal Procedure 3.850.

We have examined each of the six issues raised and find no reversible error.

Affirmed.


author: BASKIN, Judge.

text:
    Marcia JEAN-BAPTISTE, Appellant, v. DEPARTMENT OF HEALTH AND REHABILITATIVE SERVICES, State of Florida, Appellee.
    No. 82-2567.
    District Court of Appeal of Florida, Third District.
    Aug. 9, 1983.
    Rehearing Denied Sept. 28, 1983.
    Shutts & Bowen and Robert D. Friedman, Miami, for appellant.
    Jim Smith, Atty. Gen. and Eric J. Taylor, Asst. Atty. Gen., for appellee.
    Before SCHWARTZ, C.J., and BASKIN and FERGUSON, JJ.
   BASKIN, Judge.

After recovering from surgery connected with the birth of her fourth child, appellant obtained full-time employment in Miami. To keep the job, she was required to qualify as a resident alien. Consequently, appellant traveled to the Bahamas to obtain birth certificates. Before going to the Bahamas, appellant made arrangements for her children’s foster care with the state, signing a “waiver, consent and joinder” form at the request of an HRS social worker. The form, signed by appellant and the social worker, stated: “The undersigned hereby join in the foregoing Dependent [sic] petition waive notice of hearing thereof, and consent to the entry of an order granting same.” Appellant was not represented by counsel when she signed the waiver or at the subsequent dependency hearing, conducted in her absence. Appellant’s children, Betty and Mackey, were adjudicated dependent at this hearing. She left for Nassau at the end of October, 1976, and did not return to the United States until March, 1980. Upon her return, appellant sought to have her children returned to her custody. Counsel was appointed to represent her in February, 1981, and in March, 1982, appellant moved to dismiss the state’s petition for permanent commitment of her children to state custody and to vacate the prior adjudication of dependency. The trial judge deferred ruling on the permanent commitment petition and denied the motion to vacate. This appeal followed.

It appears to us that the cause is hot in an appropriate posture for decision as to the validity of appellant’s waiver. The trial court expressed its intention to maintain the children in their present circumstances until final disposition of the matter. The court stated:

And, so, I’m not going to grant, either the motions of either of the parties, here. I’m not going to return the child — children, and I’m not going to permanently deprive the mother by a permanent commitment. Because I think, that, if I did that, that I would effectively sever the— this family from these children. I don’t want to do that. I don’t want to do it, today.
What I’m going to do, is give this mother chance. I think, she deserves a chance — an opportunity to try and affect some sort of relationship to develop some sort of bondings with these children.
I’m going to continue this ruling, for six months. And, during that six months, I want the mother to have every opportunity to be with the children.
And, I want HRS to do more than they have, in regard Mrs. Baptiste’s opportunity. I want them to — to arrive at every opportunity they can for the children to be with Mrs. Baptiste, consistent with Mrs. Right’s maintaining control over them, during this six months period.
And, the end of the six minths [sic] period, I want her to come back, find out what progress has been made.
How it will turn out, I don’t know. But, I’m going to reserve ruling on all other motions, and reset this for six months from today, based on what I have indicated in my statement.

Questions pertaining to the validity of appellant’s waiver of notice of the dependency hearing are appropriate factors to be considered by the trial court in its determination of permanent commitment of the children. We therefore affirm the denial of the Motion to Dismiss/and or Vacate Adjudication of Dependency without prejudice to the renewal of appellant’s contentions at the final hearing on termination of parental rights.

Affirmed.


text:
    STATE of Florida, Appellant, v. James HIGGINS, Appellee.
    No. 82-2418.
    District Court of Appeal of Florida, Fourth District.
    Aug. 10, 1983.
    Rehearing Denied Oct. 5, 1983.
    Jim Smith, Atty. Gen., Tallahassee, and Joy B. Shearer, Asst. Atty. Gen., West Palm Beach, for appellant.
    Richard R. Haas, Pompano Beach, for appellee.
   PER CURIAM.

The state appeals from dismissal of an information charging appellee with grand theft. We reverse.

1. The motion to dismiss was sworn to by counsel rather than by appellee, in contravention of Rule 3.190(c)(4), Florida Rules of Criminal Procedure;

2. The state was not afforded sufficient notice of the hearing on the motion to dismiss;

3. The oral traverse of the state should have been accepted;

4. Since the facts set forth in the motion to dismiss are consistent with appellee’s guilt, no traverse, either written or oral, was necessary; and

5. Fair market value of stolen goods is the retail value regardless of whether the owner-victim had purchased them at wholesale. Negron v. State, 306 So.2d 104 (Fla.1975).

REVERSED and REMANDED.

LETTS, HERSEY and WALDEN, JJ., concur.


text:
    Robert SIMPSON, Petitioner, v. GLADES GENERAL HOSPITAL, et al., Respondents.
    No. 83-876.
    District Court of Appeal of Florida, Fourth District.
    Aug. 10, 1983.
    Rehearing Denied Sept. 27, 1983.
    Terry N. Freeman of Beverly & Freeman, West Palm Beach, for petitioner.
    Gary N. Chernay of Stephens, Lynn, Chernay & Klein, P.A., West Palm Beach, for respondents W.P. Liu, M.D., R.G. Perez, M.D., and Florida Physicians Ins. Reciprocal.
   PER CURIAM.

We grant the petition for writ of certio-rari and quash the order of the trial court compelling discovery. See Lee National Corp. v. Deramus, 313 F.Supp. 224 (D.Del.1970).

ANSTEAD, C.J., and GLICKSTEIN and HURLEY, JJ., concur.


author: NESBITT, Judge.

text:
    The STATE of Florida, Appellant, v. Jorge ABISLAIMAN, Appellee.
    No. 82-1944.
    District Court of Appeal of Florida, Third District.
    Aug. 16, 1983.
    Rehearing Denied Sept. 28, 1983.

      Jim Smith, Atty. Gen. and Calvin L. Fox, Asst. Atty. Gen., for appellant.
    Bierman, Sonnett, Beiley, Shohat & Sale and Benedict P. Kuehne, Edward R. Shohat, Miami, for appellee.
    Before NESBITT, DANIEL S. PEARSON and JORGENSON, JJ.
   NESBITT, Judge.

The defendant, Jorge Abislaiman, was charged with carrying a concealed firearm, possession of a controlled substance, and possession of cannabis. We have for review an order granting his motion to suppress evidence.

Abislaiman drove into the emergency room parking lot of Mercy Hospital at 2:30 a.m. on January 21,1982. He was accompanied by a female. He parked at the end of the lot and remained there for three to five minutes with no one entering or exiting the automobile. Abislaiman’s actions were observed via security camera and monitor by Officer Carlos Nieto, an off-duty City of Miami Police Officer, working with security personnel at Mercy Hospital. The hospital’s security camera monitoring room, where Nieto was situated, contains equipment allowing for remote control operation of the cameras which are perched upon poles or light standards. His suspicions aroused, Nieto maneuvered the camera facing Abislaiman and activated its zoom lens so that he could see directly into the automobile’s windshield. Officer Nieto observed Abislaiman rolling an unidentifiable substance in cigarette paper and then saw him raise his shirt, remove a gun from his waistband, and place it on the floor of the automobile in front of the driver’s seat. Nieto then radioed his dispatcher for a marked unit to assist him in a possible arrest. When the other officer arrived, he and Nieto approached Abislaiman’s car and asked both occupants to step out. They complied and as Abislaiman was frisked for weapons or shortly thereafter, Nieto reached into the car and located the gun. Abislaiman was then arrested for carrying a concealed firearm. He was read his Miranda rights after which he made certain incriminating statements. Also seized from Abislaiman’s vehicle was a small amount of marijuana in a clear plastic bag visible to Officer Nieto as he reached for the revolver and several quaaludes only the wrapper of which, a tissue, was visible at that time. The trial court suppressed all the physical evidence seized from Abislaiman, as well as the inculpatory statements.

We reverse the portion of the trial court’s order suppressing the physical evidence. In doing so, we expressly do not reach the issue of whether Officer Nieto’s use of the zoom lens camera constituted a search within the ambit of the Fourth Amendment to the United States Constitution or Article I, Section 12 of the Florida Constitution, compare United States v. Taborda, 635 F.2d 131 (2d Cir.1980) (use of telescope constituted a search); United States v. Kim, 415 F.Supp. 1252 (D.Haw.1976) (use of high-powered telescope constituted a search); and State v. Barnes, 390 So.2d 1243 (Fla. 1st DCA 1980) (use of telescope to confirm that seen with binoculars constituted a search) with Bernstiel v. State, 416 So.2d 827 (Fla. 5th DCA 1982) (use of binoculars to confirm that seen with naked eye did not constitute a search), but hold that Abislaiman had no reasonable expectation of privacy even from such an intrusion as occurred here. See Katz v. United States, 389 U.S. 347, 88 S.Ct. 507,19 L.Ed.2d 576 (1967).

Because accidents and illnesses occur at all hours, a hospital’s emergency room parking lot is one of the few places where one would expect a certain amount of traffic even at 2:30 a.m. Much of this traffic would be medical and ambulance personnel, see Buchanan v. State, 432 So.2d 147 (Fla. 1st DCA 1983) (defendant did not have a reasonable expectation of privacy inside a busy hospital emergency room where medical personnel were constantly walking in and out and where he could have expected to remain only a few hours at most) and some would surely be police officers who, properly on the premises, would have been free to crane their necks or bend over in order to glimpse the interior of Abislaiman’s vehicle. See James v. United States, 418 F.2d 1150, 1151, n. 1 (D.C.Cir.1969); but cf. United States v. Ward, 546 F.Supp. 300, 310 (W.D.Ark.1982) (unusual angle or height of enhanced visual surveillance considered in determining degree of intrusion upon expectation of privacy). Furthermore, Officer Nieto testified as to two recent incidents of violence that had occurred on Mercy Hospital grounds. The hospital certainly has a right to protect its patients, employees, and property by employing reasonable security measures. Thus, any subjective expectation of privacy Abislaiman may have formed while parked in the hospital’s lot was simply not one which society is prepared to recognize as reasonable. Katz v. United States, supra (Harlan, J., concurring), adopted, Smith v. Maryland, 442 U.S. 735, 99 S.Ct. 2577, 61 L.Ed.2d 220 (1979).

Officer Nieto’s use of the zoom lens camera was, therefore, not unlawful and he was clearly entitled under Section 901.15(1), Florida Statutes (1981) to arrest Abislaiman, having actually witnessed the latter commit the felony of carrying a concealed firearm, § 790.01(2), Fla.Stat. (1981). The search of the passenger compartment of the vehicle and the examination of the contents of any containers found therein were then justified as contemporaneous incidents of the lawful custodial arrest of Abislaiman, its recent occupant, notwithstanding that he had been removed from the vehicle, New York v. Belton, 453 U.S. 454, 101 S.Ct. 2860, 69 L.Ed.2d 768 (1981); State r. Valdes, 423 So.2d 944 (Fla. 3d DCA 1982), that portions of the search may have preceded his formal arrest, Acosta v. State, 431 So.2d 715 (Fla. 3d DCA 1983); Thomas v. State, 395 So.2d 280 (Fla. 3d DCA 1981), and that Officer Nieto in testimony at the suppression hearing characterized one part of the search, conducted with the defendant still at the scene, as an inventory search. State v. Padron, 425 So.2d 644 (Fla. 3d DCA 1983); State v. Valdes, supra. The physical evidence should not have been suppressed.

The trial court suppressed Abislaiman’s oral admissions not only as fruit of the poisonous tree, the illegal arrest, but as made without an understanding of the con-cededly-administered Miranda warnings. The poisonous tree now detoxified, we need not concern ourselves with the first independent ground for suppression, but proceed to the second ground.

It appears from the record that Officer Nieto, who was the only witness to testify at the' suppression hearing, was somewhat confused as to whether his fellow officer read Abislaiman his rights in Spanish or English and as to whether Abislai-man answered in Spanish or English. Nieto initially testified that he didn’t remember whether the rights were read in English or Spanish. He later responded that the rights were read in Spanish and that he didn’t remember whether Abislaiman answered in Spanish or English. Nieto also testified that Abislaiman appeared to understand English but that he made his incriminating statement in Spanish. Although a likely inference from all this confusion is that both Nieto and Abislaiman were bilingual, the trial court found that Nieto just was not credible concerning this particular issue. On this record, we cannot say that the trial court erred in its assessment or in its decision to suppress the oral statements as emanating from one who did not understand his rights. McNamara v. State, 357 So.2d 410 (Fla.1978); Lane v. State, 353 So.2d 194 (Fla. 3d DCA 1977), cert. denied, 358 So.2d 131 (Fla.1978); Von Horn v. State, 334 So.2d 43 (Fla. 3d DCA 1976), cert. denied, 341 So.2d 1086 (Fla.1976). The order under review is, therefore, affirmed in part and reversed in part and the case is remanded for further proceedings consistent with this opinion.

Affirmed in part; reversed in part and remanded.

      . The record does not reveal whether or not Abislaiman owned the automobile he was driving.

      . Since it was not made an issue in the trial court, the state has conceded for purposes of this appeal that Officer Nieto’s activities at all relevant times constituted state action.

      . Officer Nieto was privy to only one of the statements sought to be suppressed.


text:
    RAIDLE COOK INSURANCE, INC. and Employers Reinsurance Corp., Appellants, v. AMERICAN STATES INSURANCE CO., etc., et al., Appellees.
    No. 82-1721.
    District Court of Appeal of Florida, Fourth District.
    Aug. 17, 1983.
    Rehearing Denied Sept. 29, 1983.

      Roy W. Jordan, Jr., West Palm Beach, for appellants.
    John J. Bulfin of Wiederhold, Moses & Bulfin, P.A., West Palm Beach, for appellee American States Ins. Co.
   PER CURIAM.

Reversed and remanded for a new trial on all issues. Upon review of the record we believe it was error for the trial court to recall the jury after discharge and conduct further proceedings to determine the jury’s intent. Cf. Fitzell v. Rama Industries, Inc., 416 So.2d 1246 (Fla. 4th DCA 1982). Upon remand the parties should be given an opportunity to amend their pleadings to clarify the issues involved before a new trial is conducted.

ANSTEAD, C.J., and BERANEK and HURLEY, JJ., concur.


text:
    In re The ESTATE OF Cecil SNODGRASS, deceased.
    No. 82-2517.
    District Court of Appeal of Florida, Fourth District.
    Aug. 17, 1983.
    Rehearing Denied Oct. 4, 1983.
    Robert J. Gorman of Brennan, McAliley, Hayskar, McAliley & Jefferson, Fort Pierce, for appellant Carl Snodgrass.
    Richard D. Sneed, Jr., of Sneed & Messer, P.A., Fort Pierce, for appellee Edna Osborn.
   PER CURIAM.

We reverse the orders of the trial court granting appellee’s various claims and awarding attorneys fees. We remand this cause with directions that appellee be given an opportunity to file an amended pleading setting out her claims with specificity, that appellant be given an opportunity to respond to such a pleading, and that an evi-dentiary hearing be conducted to resolve any disputes between the parties.

ANSTEAD, C.J., and BERANEK and HURLEY, JJ., concur.


text:
    James M. JORDAN, Appellant, v. STATE of Florida, Appellee.
    No. 82-1331.
    District Court of Appeal of Florida, Second District.
    Aug. 26, 1983.

      Jerry Hill, Public Defender, Bartow, and Robert F. Moeller, Asst. Public Defender, Tampa, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Michael A. Palecki, Asst. Atty. Gen., Tampa, for appellee.
   LEHAN, Judge.

James Jordan appeals the denial of his motion • for disqualification of the trial judge filed pursuant to Florida Rule of Criminal Procedure 3.230 and the subsequent order revoking appellant’s probation, adjudicating him guilty, and imposing sentence. We reverse.

Appellant was charged by information on May 11, 1977, with possession of cocaine. Appellant later pleaded guilty to the charged offense, and on January 20, 1978, the trial court withheld adjudication and placed appellant on probation for five years. Condition two of the probation required appellant to make monthly reports to his probation supervisor, and condition four required him to remain at liberty without violating any law.

An affidavit for violation of probation was filed on June 12, 1981, alleging appellant had made late monthly reports on three occasions and had also been charged with possession and delivery of marijuana. Probation revocation hearings were held before the trial court on June 19 and 26,1981. Appellant was represented at both hearings by an assistant public defender.

At the June 19 hearing appellant entered a plea of not guilty to violating the terms and conditions of his probation. However, at the June 26 hearing the court only addressed the matter of appellant’s alleged failure to file timely monthly reports. After receiving testimony from the probation supervisor and appellant, the court found appellant guilty of violating condition two, adjudicated him guilty, and sentenced appellant to five years, with credit for time served. No evidence was presented regarding the other alleged violation of probation (marijuana possession and delivery) at either the June 19 or June 26 hearing, and the court did not find appellant guilty of this alleged violation.

In Jordan v. State, 412 So.2d 970 (Fla. 2d DCA 1982), this court reversed the revocation of probation because we found the alleged failure to file timely monthly reports was only a “technical” and not a “substantial or wilful violation of probation.” Id. at 971.

Our mandate in the first appeal was issued May 7,1982, and received by the clerk of the circuit court on May 10,1982. However, on May 6, 1982, one day prior to the issuance of our mandate, an amended affidavit for violation of probation was filed alleging the same possession and delivery of marijuana violation that had been charged on June 12, 1981.

Prior to the hearing on the amended affidavit held on May 14,1982, appellant filed a motion pursuant to Florida Rule of Criminal Procedure 3.230 to disqualify the trial judge from presiding over the hearing. The motion stated as grounds that the trial judge was prejudiced against the appellant because he had “previously disqualified himself from consideration of matters involving defendant upon defendant’s oral motion.” This allegation apparently concerned two cases involving appellant which the judge heard after he revoked appellant’s probation on June 26, 1981. The appellant also alleged that there was conduct of the judge in those cases which appellant characterized as “mocking." The motion was certified by appellant’s counsel as being made in good faith. Affidavits of the appellant, his counsel, and another individual, all in support of the allegations, accompanied the motion.

The trial judge denied the disqualification motion and stated that he did not think the motion was valid because the appellant did not seek a disqualification at the time appellant was placed on probation. When defense counsel began to argue that case law requires a trial judge to disqualify himself if the motion is legally sufficient, the court stated that, in any event, a disqualification motion must be filed ten days prior to trial. The court then reiterated the denial of the motion.

After hearing testimony of two detectives and the appellant, the court again revoked probation, adjudicated the appellant guilty, and sentenced him to five years with credit for time served. This appeal follows.

As a preliminary matter, we find no merit in the state’s argument that the issues raised on appeal concerning the denial of the motion for disqualification were not properly preserved in the trial court for appellate review. The colloquy in the record between the trial judge and defense counsel indicates defense counsel sufficiently objected to the court’s ruling even though the magic words “I object” were not expressly used. Cf. Spurlock v. State, 420 So.2d 875 (Fla.1982) (failure to expressly object to jury instructions).

The trial judge’s denial of appellant’s disqualification motion on the grounds that the motion was not timely filed constituted error. The stated grounds were that the motion should have been filed at the time appellant was placed on probation or, in the alternative, at least ten days prior to the probation revocation hearing. However, first, the grounds appellant alleged in his disqualification motion — prejudice of the trial judge arising at the hearings in other cases apparently subsequent to the first revocation of probation — did not exist at the time appellant was placed on probation. Second, although Rule 3.230(c), Florida Rules of Criminal Procedure, requires that a motion for disqualification be filed at least ten days prior to trial, that requirement of the rule is qualified by the phrase “unless good cause is shown for failure to so file within such time.” There was good cause for appellant’s failure to file that motion prior to that ten-day period for the reason that less than ten days existed from the May 6,1982 filing of the amended affidavit to the May 14, 1982 probation revocation hearing.

We should address whether Jones v. State, 411 So.2d 165 (Fla.1982), cert. denied, - U.S. -, 103 S.Ct. 189, 74 L.Ed.2d 153 (1982), is applicable to show timeliness of the motion. Jones v. State held that a disqualification motion should be filed “before commencement of the guilt phase of the trial.” 411 So.2d at 167. We find that Jones v. State does not require a finding of untimeliness under the facts of this case. For probation revocation purposes under the facts of this case relative to the time of filing of the motion for disqualification, the “guilt phase” was, in effect, the probation revocation hearing. This is because before probation may be revoked a determination of whether a probationer has violated the terms of his probation must be made at a hearing at which he is afforded the “minimum requirements of due process” which include the right to “a ‘neutral and detached’ hearing body.” See Gagnon v. Scarpelli, 411 U.S. 778, 93 S.Ct. 1756, 1761-62, 36 L.Ed.2d 656 (1973). This holding is limited to the facts of this case, to wit, when the grounds for the motion did not earlier exist so that the probationer was in a position to file such a motion before the trial of the case in which he received probation.

Because the trial judge, following his ruling on the timeliness of the motion for disqualification, failed to consider the legal sufficiency of the disqualification motion, there was also error in the court’s denial of what we have found to have been that timely filed motion. Rule 3.230(d) provides that the trial court shall examine such a motion for its legal sufficiency only and “shall not pass on the truth of the facts alleged nor adjudicate the question of disqualification.”

Therefore, we reverse and remand for the trial court to deal with the motion to disqualify pursuant to rule 3.230(d). As indicated above, the motion was alleged to be based upon events which arose subsequent to the placing of appellant on probation and which were independent of the probation revocation proceedings and of the case in which appellant received probation. Upon a finding that the motion and affidavits are legally sufficient, which we believe is shown on the face of those documents, the trial court should disqualify himself so that the case may be reassigned. Bundy v. Rudd, 366 So.2d 440 (Fla.1978).

REVERSED AND REMANDED.

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


text:
    Raymer McDONALD, Appellant, v. FLORIDA ERECTION SERVICES, Risk Management Services, Inc. and Department of Labor and Employment Security, Division of Workers’ Compensation, Appellees.
    No. AP-67.
    District Court of Appeal of Florida, First District.
    Aug. 26, 1983.
    Richard A. Sicking of Kaplan, Sicking, Hessen, Sugarman, Rosenthal & DeCastro, Miami, for appellant.
    Robert D. McAliley of Brennan, McAliley, Hayskar, McAliley & Jefferson, West Palm Beach, for appellee.
    Mary Ann Stiles of Stiles & Livingston, Tampa, for amicus curiae Associated Industries of Fla., Inc.
   ON MOTION FOR REHEARING

PER CURIAM.

Appellant’s motion for rehearing is denied, 437 So.2d 678 (Fla.App.1983). Section 440.15(3)(b)(l), Florida Statutes (1979) specifically subjects wage-loss benefits to the maximum compensation rate. The constitutionality of the wage-loss statute has already been upheld. Acton v. Ft. Lauderdale Hospital, 418 So.2d 1099 (Fla. 1st DCA 1982).

LARRY G. SMITH, JOANOS and NIM-MONS, JJ., concur.


author: GLICKSTEIN, Judge.

text:
    BETHESDA RADIOLOGY ASSOCIATES, P.A., and David B. Graves, M.D., Appellants, v. Manuel YAFFEE and Marion Yaffee, his wife, and James T. Dawsey, M.D., Appellees.
    No. 82-2105.
    District Court of Appeal of Florida, Fourth District.
    Aug. 31, 1983.
    Rehearing Denied Sept. 30, 1983.
    Marjorie Gadarian Graham of Jones & Foster, P.A., West Palm Beach, for appellants.
    Edna L. Caruso, P.A., and Montgomery, Lytal, Reiter, Denney & Searcy, P.A., West Palm Beach, for appellees-Yaffee.
   GLICKSTEIN, Judge.

At issue is whether a radiologist and the P.A. with which he was associated should have been awarded attorneys’ fees by the trial court, which denied them, although both were the prevailing parties in a medical malpractice action brought against them by appellees. The trial court said:

ORDERED AND ADJUDGED that both the motion filed by BETHESDA RADIOLOGY ASSOCIATES, P.A. and DAVID B. GRAVES, M.D. and the motion of JAMES T. DAWSEY, M.D., are denied because Florida Statute 768.56 does not apply to any action filed before July 1, 1980, and the court finds that while the plaintiff filed this civil law suit against the defendants in October, 1980, the plaintiff first filed a civil action (medical mediation proceeding) against DR. DAWSEY prior to July 1, 1980 ....

The medical mediation claim to which the trial court referred was filed in 1979 by appellees only against Dr. Dawsey, the referring obstetrician/gynecologist, who has not appealed from the trial court’s order which denied his similar motion for attorneys’ fees although he, too, prevailed in the subsequent civil action brought on October 1, 1980, against him as well as Doctor Graves and the P.A.

The statute to which the trial court referred, namely section 768.56, Florida Statutes (1980), was enacted expressly as a result of the determination by the supreme court that the Medical Mediation Act was unconstitutional. The preamble of the statute recites, in part:

WHEREAS, the Florida Supreme Court determined in Aldana v. Holub, No. 53,612 (Feb. 28, 1980), that the jurisdictional period provided for in the medical mediation act had proven to be arbitrary and capricious in its operation which rendered the act unconstitutional ....

The statute provides:

(1) Except as otherwise provided by law, the court shall award a reasonable attorney’s fee to the prevailing party in any civil action which involves a claim for damages by reason of injury, death, or monetary loss on account of alleged malpractice by any medical or osteopathic physician, podiatrist, hospital, or health maintenance organization; however, attorney’s fees shall not be awarded against a party who is insolvent or poverty-stricken. Before initiating such a civil action on behalf of a client, it shall be the duty of the attorney to inform his client, in writing, of the provisions of this section. When there is more than one party on one or both sides of an action, the court shall allocate its award of attorney’s fees among prevailing parties and tax such fees against nonprevailing parties in accordance with the principles of equity. In no event shall a nonprevailing party be required to pay to any or all prevailing parties any amount in attorney’s fees in excess of that which is taxed against such nonprevailing party. A party who makes an offer to allow judgment to be taken against him shall not be taxed for the prevailing party’s attorney’s fees which accrue subsequent to such offer of judgment if the final judgment is not more favorable to the prevailing party than the offer. The court shall reduce the amount of attorney’s fees awarded to a prevailing party in proportion to the degree to which such party is determined by the trier of fact to have contributed to his own loss or injury.
(2) This section shall not apply to any action filed before July 1, 1980.

Appellants rely on a line of cases from this and other courts, involving the addition of new parties after a statute of limitations has run, as authority for the proposition that the “action” against both appellants did not commence until October 1, 1980, when the present action was filed against them rather than in 1979 when the medical mediation claim was filed against Dr. Daw-sey. See Louis v. South Broward Hospital District, 353 So.2d 562 (Fla. 4th DCA 1977) and Click v. Pardoll, 359 So.2d 537 (Fla. 3d DCA 1978), cert. denied, 367 So.2d 1122 (Fla.1979). Appellees counter with two propositions. The first is that the request for medical mediation filed in circuit court on September 21, 1979, was an “action” within the meaning of the statute; and that the subsequent complaint filed in 1980 is superfluous.

They rely upon Medel v. Valentine, 376 So.2d 1154, 1156 (Fla.1979), which held:

By its terms the Medical Mediation Act “shall not be applicable to any ease in which formal suit has been instituted pri- or to ... July 1, 1975.” § 768.133(10), Fla.Stat. (1975). We read subsection (10) to exempt from the provisions of the Medical Mediation Act all elements of a controversy, including the joinder of additional defendants, which arise from a single medical transaction or a series of -related medical transactions where suit was filed prior to July 1, 1975. The allegedly negligent acts of Drs. Valentine and Cohen were components of essentially one transaction — the timing and delivery of the Medel baby. Hence the filing of the complaint against Dr. Valentine served to exempt the entire controversy, notwithstanding Dr. Cohen’s joinder subsequent to the Act’s effective date.

The second is that section 768.56 is unconstitutional.

We believe the 1979 request for mediation was not the “action” the legislature had in mind in enacting the subject statute insofar as the two appellants are concerned for a number of reasons. First, the Medical Mediation Act recognized the difference between mediation proceedings and “civil medical malpractice actions.” Section 768.44(l)(a), Florida Statutes (1979), provided for mediation before a claim “may be filed in any court of this state.” Section 768.44(6) provided that “evidence applicable in civil cases shall not be required” in mediation proceedings. Section 768.47, Florida Statutes (1979), entitled in part “Civil Medical Malpractice Actions,” provides in subsection (1):

In the event any party rejects the decision of the Medical Liability Mediation Panel, the claimant may institute litigation based upon the claim in the appropriate court.

Both sections 768.44(10) and 768.47(3) exclude from the application of the act “any case in which formal suit has been instituted prior to the effective date.” In short, the legislature recognized the difference between litigation and mediation.

Second, there is no reason to believe the legislature’s use of the terms “civil action” and “action” on the occasion of the demise of the Medical Mediation Act was intended to be other than that ascribed at the time of its birth.

Third, Section 768.56 gives plaintiffs’ lawyers the kind of warning traffic engineers reserve for oncoming trains. Section (1) provides:

Before initiating such a civil action on behalf of a client, it shall be the duty of the attorney to inform his client, in writing, of the provisions of this section.

It seems clear to us by the foregoing language that the legislature intended to protect prevailing defendants who were sued on and after July 1, 1980, and not before, which is exactly what occurred in the present case. A suit was filed on October 1, 1980, when the unsuccessful plaintiffs and their attorneys knew the rules by which the game was being played. They chose to name the appellants in a complaint, pay the filing fee, and serve them with process. Having elected to subject appellants to litigation, not mediation, notwithstanding the statutory warning, they must now restore appellants to their pre-litigation posture.

Fourth, we fail to find any basis for support of appellees’ position in Medel, supra, which cured an anomalous factual situation. To apply the supreme court’s language to the state of the law and the facts here would create, rather than cure, the anomaly.

As for appellees’ constitutional argument, they failed to raise it in the trial court; therefore, it is too late to raise it here for the first time, no fundamental error being involved. See Granados v. Miller, 369 So.2d 358 (Fla. 4th DCA 1979); Rubin v. Glick, 419 So.2d 817 (Fla.3d DCA 1982); and Hegeman-Harris Co. v. All State Pipe Supply Co., 400 So.2d 1245 (Fla. 5th DCA), petition for review dismissed, 411 So.2d 380 (Fla.1981).

Accordingly, we reverse and remand with direction to proceed in accordance with the provisions of section 768.56.

HURLEY and DELL, JJ., concur.

      . The instant case is distinguished on its facts from Theodorou v. Burling, 438 So.2d 400 (Fla. 4th DCA 1983). There the critical question was whether an action’s original filing date, which preceded July 1, 1980, the effective date of section 768.56, controlled, when the prevailing parties were brought in by amended complaint after the statute’s effective date.


author: DELL, Judge.

text:
    Herbert S. FREEHLING, Trustee in Bankruptcy, Appellant, v. MGIC FINANCIAL CORPORATION, Appellee.
    No. 81-1999.
    District Court of Appeal of Florida, Fourth District.
    Sept. 7, 1983.

      Gary M. Farmer of Goldberg, Young & Borkson, P.A., Fort Lauderdale, for appellant.
    Paul R. Lipton of Paul R. Lipton, P.A., North Miami Beach, for appellee.
   ON REHEARING

DELL, Judge.

This court’s opinion of April 20, 1983, is hereby withdrawn and the following opinion is substituted therefor.

Bryan A. Graydon, property owner and mortgagor, and Herbert S. Freehling, his trustee in bankruptcy, appeal from a final summary judgment of foreclosure in favor of MGIC Financial Corporation, mortgagee.

Graydon and MGIC entered into an agreement to take over the Players’ Club. As part of this agreement, Graydon borrowed money from MGIC to purchase the club. Each party agreed to make certain payments as part of their agreement. Graydon subsequently defaulted on mortgage payments, and MGIC filed an action to foreclose its mortgage in the circuit court. However, before MGIC could obtain service of summons and complaint, Graydon filed a voluntary petition in bankruptcy, which resulted in an automatic stay of the foreclosure suit under 11 U.S.C. § 362. MGIC filed its complaint to lift the stay pursuant to § 362(d)(1) which permits the bankruptcy court to grant such relief for cause. “Cause” includes a situation where an interested party lacks adequate protection of his interest in the property. The bankruptcy court made extensive findings of fact on the many financial matters raised by the parties, including a finding that certain actions by Graydon placed MGIC’s secured interest in the property in jeopardy. In its final judgment, the bankruptcy court ordered Graydon to take certain actions and provided that if Graydon failed to comply with these orders, then the automatic stay would be modified to permit MGIC to pursue its foreclosure complaint in the Florida circuit court. Appellee thereafter filed in the bankruptcy court various motions alleging appellant’s non-compliance with the final judgment. The bankruptcy court held a hearing which resulted in an order providing that if Graydon did not take certain actions by a specified date, then “the automatic stay is automatically lifted to permit [appellee], MGIC, to proceed with and complete its foreclosure action in the Circuit Court of the State of Florida.”

Graydon did not comply. MGIC filed in the circuit court copies of portions of the bankruptcy record and an affidavit of noncompliance. MGIC later filed a motion for summary judgment, and Graydon filed an affidavit in which he alleged that the parties disagreed as to the amount of money MGIC owed to Graydon, which Graydon claimed as a set-off. The circuit court took judicial notice of the bankruptcy ease, found no material issue other than that which the bankruptcy court previously ruled upon, and entered summary judgment in favor of MGIC.

Appellants present three points on appeal, all of which interrelate and all of which depend upon the resolution of a single issue: whether the findings and conclusions of the bankruptcy court, made on a complaint for relief from automatic stay, bind the Florida circuit court in this foreclosure proceeding.

In its motion for summary judgment, appellee argued that the findings and conclusions of the bankruptcy court, incorporated into its final judgment, rendered any possible defense res judicata. We disagree. Seaboard Coast Line R. Co. v. Industrial Contracting Co., 260 So.2d 860, 862 (Fla. 4th DCA 1972) [original emphasis].

To bring the doctrine of res judicata into valid play there must be (1) identity in the thing sued for; (2) identity of the cause of action; (3) identity of the persons and parties to the actions; and (4) identity of the quality or capacity of the persons for or against whom the claim is made. If these conditions do not concur, the doctrine of res judicata is not applicable. [Citation omitted.] The effect of res judicata is that the judgment constitutes an absolute bar to a subsequent action.

In the foreclosure action, appellee sought an accounting of the sum due from appellant, and if the sum be not satisfied, then sought a forced sale to recoup the sum due. Alternatively, appellee asked permission to take over operation of the club pursuant to a provision therefor in the mortgage. In the bankruptcy court, however, appellee had filed a complaint to lift stay, by which he sought none of the above stated relief, but merely sought the permission of the bankruptcy court to proceed with foreclosure in the circuit court. Accordingly, there is no identity in the thing sued for and res judicata does not apply.

This determination, however, does not put the matter at rest. The doctrine of collateral estoppel applies where two causes of action are different. The judgment in the first suit estops the parties from reliti-gating in the second suit those issues which were common to both causes of action and which were actually litigated in the original suit. Seaboard, supra. The party claiming the benefit of collateral estoppel bears the burden to show that such an issue was formerly determined with sufficient certainty.

Here, appellant contends he is entitled to a set-off for certain sums which appellee owes to him. Whether appellee owed appellant any money was placed in issue in the bankruptcy proceeding by appellant’s contention that appellee owed him more than he owed appellee, and therefore he was not in default. The bankruptcy court found against appellant on this point because “even giving [appellant] credit for all of the amounts owed to him by MGIC, [appellant] was nevertheless in default on his payments on the mortgage note .... ” This indicates that appellee owes appellant something for which the circuit judge made no provision in the final summary judgment of foreclosure. The bankruptcy court further determined certain sums which appel-lee owed directly to Graydon under their agreement. However, with respect to $11,-147.14 held m a trust account maintained for the payment of repairs and capital improvements, the bankruptcy court determined that MGIC is liable for these costs to the maximum of $11,147.14, but due to insufficient evidence could not assess any amount. Finally, in his affidavit resisting summary judgment, appellant contended that the bankruptcy court determined that appellee owed him approximately $75,000, which amount remains in dispute. Although this figure corresponds to nothing which we find in the findings and conclusions of the bankruptcy court or its final judgment, the affidavit sufficiently brought the unresolved status of $11,147.14 to the trial court’s attention, and demonstrates an issue of fact unresolved by the bankruptcy court. Accordingly, appellee did not demonstrate with sufficient certainty that the bankruptcy court actually adjudicated the amount of appellant’s set-off, and collateral estoppel does not apply.

We hold that appellant’s affidavit raises an issue of fact as to a claimed set-off sufficient to preclude entry of summary judgment.

REVERSED and REMANDED.

PURDY, H. MARK, Associate Judge, concurs. .

HURLEY, J., concurs in the result.


author: PER CURIAM. DOWNEY, Judge,

text:
    Bruce FLETCHER, Appellant/Cross-appellee, v. Mel FRANCIS and Sun Bank of Lauderdale Beach, a state banking corporation, Appellees/Cross-appellants.
    No. 82-126.
    District Court of Appeal of Florida, Fourth District.
    Sept. 7, 1983.
    Edna L. Caruso, West Palm Beach, for appellant/cross-appellee.
    Romney C. Rogers of Rogers, Morris & Ziegler, Fort Lauderdale, for appel-lees/cross-appellants.
   PER CURIAM.

AFFIRMED.

ANSTEAD, C.J., and HURLEY, J., concur.

DOWNEY, J., dissents with opinion.

DOWNEY, Judge,

dissenting.

Appellant, Bruce Fletcher, sued appellees, Mel Francis and Sun Bank of Lauderdale Beach, for slander and for intentional interference with an advantageous business relationship. The bank filed affirmative defenses which included the defense of release and the defense that the statements allegedly made were not made in the course and scope of Francis’s employment with the bank. The trial court entered a summary judgment in favor of the bank and Fletcher perfected this appeal.

In my judgment there are genuine issues of material fact remaining which involve the release and its effect as well as whether the statements were made in the scope of Francis’s employment. It therefore appears that entry of summary judgment was inappropriate at this juncture of the proceeding.

Accordingly, I would reverse the judgment appealed from.


author: COBB, Judge.

text:
    KINGS POINT DEVELOPMENT GROUP; D.J. Kirk, etc.; and Kirkpoint Development Group, et al., Appellants, v. Kay J. MURPHY and Clinton Wietzer Murphy, Appellees.
    Nos. 82-1645, 82-1760 and 82-1767.
    District Court of Appeal of Florida, Fifth District.
    Sept. 8, 1983.
    Darryl M. Bloodworth of Dean, Mead, Egerton, Bloodworth, Capouano & Bozarth, P.A., Orlando, for appellant Kings Point Development Group.
    William H. Gauldin, Titusville, for appellants Kirkpoint Development Group, Kirk Realty, Inc., and Kirkwood Properties, Inc.
    Ladd H. Fassett of Smathers, Pleus, Adams, Fassett & Divine, P.A., Orlando, for appellant D.J. Kirk.
    Joyous D. Parrish of Nabors, Potter, McClelland, Griffith & Jones, P.A., Titus-ville, for appellees.
   ON MOTION FOR REHEARING

COBB, Judge.

Pursuant to stipulation of the parties hereto, the motion for rehearing [of 437 So.2d 690] is granted to the extent that the final judgment of foreclosure entered below shall be amended to conform to said stipulation. This cause is remanded to the trial court for that purpose.

REHEARING GRANTED and CAUSE REMANDED.

ORFINGER, C.J., and FRANK D. UP-CHURCH, Jr., J., concur.


author: PER CURIAM. OWEN, WILLIAM C., Jr., Associate Judge,

text:
    Gregory REYNOLDS and Maude Reynolds, Appellants, v. STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, Appellee.
    No. 81-2419.
    District Court of Appeal of Florida, Third District.
    Sept. 13, 1983.
    Proenza & White and David White, Miami, for appellants.
    Talburt, Kubicki & Bradley and Betsy E. Hartley and Jon Derrevere, Miami, for ap-pellee.

      Before HENDRY and NESBITT, JJ., and OWEN, WILLIAM G, Jr., Associate Judge.
   PER CURIAM.

In June 1978, Gregory Reynolds, while riding his motorcycle, for which he had no insurance, was injured when he was struck by a negligently-operated uninsured motor vehicle. Gregory resided with his mother, Maude, who was the named insured in an automobile liability policy issued by appel-lee, State Farm Mutual Automobile Insurance Company. That policy provided uninsured motorist coverage under the terms of which Gregory was an insured. The trial court entered judgment for the insurer because of an exclusion which provided that the insurance did not apply to bodily injury to an insured while occupying a land motor vehicle owned by the named insured or any resident of the same household if such vehicle was not an owned motor vehicle (which the motorcycle was not).

The judgment is affirmed on the authority of Indomenico v. State Farm Mutual Automobile Insurance Co., 388 So.2d 29 (Fla. 3d DCA 1980), which, applying the identical policy exclusion to facts on all fours with those in this case, held that by virtue of Section 627.4132, Florida Statutes (1977) the uninsured motorist coverage was not applicable to the injuries sustained by the insured. See also State Farm Mutual Automobile Insurance Co. v. Kuhn, 374 So.2d 1079 (Fla. 3d DCA 1979), cert. denied, 383 So.2d 1197 (Fla.1980); Allstate Insurance Co. v. Alvarez, 414 So.2d 224 (Fla. 3d DCA 1982); Vetter v. State Farm Mutual Automobile Insurance Co., 423 So.2d 991 (Fla. 3d DCA 1982). Contra Harbach v. New Hampshire Insurance Group, 413 So.2d 1216 (Fla. 5th DCA 1982). As in Allstate Insurance Co. v. Alvarez, supra, and Vetter v. State Farm Mutual Automobile Insurance Co., supra, we acknowledge and certify that this decision is in direct conflict with Harbach v. New Hampshire Insurance Group, supra.

OWEN, WILLIAM C., Jr., Associate Judge,

dissenting:

There are two sound reasons why I believe that both this court and the trial court are in error in denying to Gregory Reynolds the benefits of uninsured motorist coverage under the policy issued by appellee to Mrs. Reynolds. The first involves nothing more than a simple reading of the policy itself. The second involves the applicability and construction of Section 627.4132, Florida Statutes (1977).

First, the policy itself. By definition, Gregory is an “insured” under the uninsured motorist coverage because his mother is the named insured and he is a resident of his mother’s household. Thus, he has coverage unless coverage is excluded by one of the exclusions.

The exclusion relied upon by appellee and held applicable by the court provides that the insurance does not apply to bodily injury to an insured while occupying a land motor vehicle owned by the named insured or any resident of the same household, if such vehicle is not an owned motor vehicle. Gregory fits within this exclusion in every respect if, and only if, the motorcycle he was occupying at the time he sustained personal injuries is a “land motor vehicle.”

The term “land motor vehicle” is not defined anywhere in the policy, but common sense tells us that it would be nothing more or less than a motor vehicle intended to be used solely on land. “Motor vehicle” is not defined under the uninsured motorist coverage provisions, but is defined under the liability coverage provisions. While the definition contains several limitations and exceptions (none of which is material to this case), the basic definition requires that it be a four wheel, self-propelled vehicle of a type required to be registered and licensed under Florida law, not used as a public or livery conveyance. No one, for a moment, contends that Gregory’s motorcycle meets this definition of “motor vehicle.” Since the insurer selected the wording of the exclusion to uninsured motorist coverage, but elected not to define within that coverage the meaning of the terms used, the definition of those terms, as found elsewhere in the policy and which provides the broadest coverage to the insured, should be adopted. I think it clear that within the policy definitions, Gregory was not occupying a land motor vehicle at the time he was injured, and thus he was not within the parameters of the exclusion upon which appellee relied.

The foregoing view is exactly the view expressed by this court in the case of Valdes v. Prudence Mutual Casualty Co., 207 So.2d 312 (Fla. 3d DCA 1968), involving an exclusionary clause and a factual situation which, as to the legal issues involved, are indistinguishable from those in the case at bar. As this court recognized in Indo-menico v. State Farm Mutual Automobile Insurance Co., 388 So.2d 29 (Fla. 3d DCA 1980), the holding in the Valdes case would still permit recovery in instances such as this were it not for the effect of Section 627.4132, Florida Statutes (1977). In all deference, I think that the Indomenico case, as well as the case upon which it relied, State Farm Mutual Automobile Insurance Co. v. Kuhn, 374 So.2d 1079 (Fla. 3d DCA 1979), erroneously concluded that Section 627.4132, Florida Statutes (1977), affected the precedent established by this court’s decision in the Valdes case.

And so to the question of the applicability and construction of Section 627.4132, Florida Statutes (1977). In McLellan v. State Farm Mutual Automobile Insurance Co., 366 So.2d 811 (Fla. 4th DCA 1979), it was stated that a reading of the statute clearly evidenced a two-fold purpose: (1) to prohibit the stacking of coverages, and (2) to restrict an insured to the coverage contained in the policy covering the vehicle which he was operating at the time of the accident. I think the McLellan decision, upon which this court relied in both the Kuhn and Indomenico cases, is a correct decision if it is read as meaning that when one is an insured (whether a named insured or an additional insured) under two or more policies issued to the same named insured, the statute prohibits the stacking of coverage and restricts the insured to the coverage on the vehicle involved in the accident, unless none of the insured’s or named insured’s vehicles is involved in the accident, in which event coverage is available only to the extent of coverage on any one of the vehicles with applicable coverage. Unfortunately, the McLellan decision was cited in both the Kuhn and Indomenico cases as authority for construing Section 627.4132, Florida Statutes (1977), as restricting one such as Gregory Reynolds, an insured only under a single policy, to only such uninsured motorist coverage as was on the vehicle involved in the accident. Since in neither of those eases, nor in this case, was there any uninsured motorist insurance on the vehicle involved in the accident, that application and construction of the statute resulted in a denial of coverage to an insured. The statute was intended to prevent stacking, not to totally deprive an insured of all coverage. I think the Fifth District Court of Appeal, in Harbach v. New Hampshire Insurance Group, 413 So.2d 1216 (Fla. 5th DCA 1982), has construed the statute correctly (at page 1217):

In summary, Section 627.4132 applies to bar coverage only where multiple coverages are issued to the same- named insured; in such event, the policy describes which coverage will be available to the exclusion of all others. However, here, where there is only one uninsured motorist policy available to the appellant, the statute can create no bar to his recovery under that policy.

Although the uninsured motorist statute has been amended with some frequency since the Supreme Court decision in Mullís v. State Farm Mutual Automobile Insurance Co., 252 So.2d 229 (Fla.1971), I have found nothing in the statutory changes since which would indicate any legislative intent to change the basic underlying public policy articulated in Mullís, i.e., that uninsured motorist coverage is intended to provide to every insured entitlement to recover for the damages he or she would have been able to recover if the offending motorist had maintained a policy of liability insurance. Given that as a premise, the Mullís case made it clear that the statutorily fixed and prescribed protection was not to be reduced by the insurers’ policy exclusions and exceptions, and that a person in the first class of insureds (as was Richard Mul-lís in that case and as is Gregory Reynolds in this case) is “covered by uninsured motorist liability protection ... whenever or wherever bodily injury is inflicted upon him by the negligence of an uninsured motorist.” Could that language be made any more explicit? I doubt it. Gregory Reynolds, without question, would have had coverage had he been a pedestrian when struck by the uninsured motorist; likewise, there would have been no question of coverage had the motorcycle been borrowed from a stranger. How is it then, that the coverage which should follow him whenever and wherever he goes, can be denied him because of his. mode of transportation, i.e., his own uninsured motorcycle?

While this court has yet to recede from the line of decisions cited in the majority opinion, it has recently sought to limit or restrict the effect of them and to once again move toward the still viable principles enunciated in Mullis v. State Farm Mutual Automobile Insurance Co., supra. See Progressive American Insurance Co. v. Glenn, 428 So.2d 367 (Fla. 3d DCA 1983).

      . Stacking of coverage is prohibited. — If an insured or named insured is protected by any type of motor vehicle insurance policy for liability, uninsured motorist, personal injury protection, or any other coverage, the policy shall provide that the insured or named insured is protected only to the extent of the coverage he has on the vehicle involved in the accident. However, if none of the insured’s or named insured’s vehicles is involved in the accident, coverage is available only to the extent of coverage on any one of the vehicles with applicable coverage. Coverage on any other vehicle shall not be added to or stacked upon that coverage. This section shall not apply to reduce the coverage available by reason of insurance policies insuring different named insureds.


author: HENDRY, Judge.

text:
    Thomas Guy BAYSHORE, Appellant, v. The STATE of Florida, Appellee.
    No. 81-2695.
    District Court of Appeal of Florida, Third District.
    Sept. 13, 1983.

      Bennett H. Brummer, Public Defender, and Howard K. Blumberg, Asst. Public Defender, for appellant.
    Jim Smith, Atty. Gen., and Calianne P. Lantz, Asst. Atty. Gen., for appellee.
    Before HENDRY, NESBITT and BAS-KIN, JJ.
   HENDRY, Judge.

Defendant below appeals from his conviction of burglary and grand theft. The only issue on appeal is whether the trial court erred in refusing to grant appellant’s motion for a mistrial following the prosecutor’s comments on appellant’s failure to call his father as an “alibi” witness. We find merit in this argument and reverse.

Appellant was convicted on the basis of the testimony of the victim who said she awoke to find the appellant rummaging through her purse. The purse contained $200.00 in cash. The victim stated that she recognized the appellant because he was a neighbor. She also picked appellant’s picture out of a photo line-up. Approximately one week after the incident, appellant was arrested at his father’s home, which is 3^4 miles away from the victim’s residence. Appellant filed no notice of alibi, nor did he even hint at an alibi defense during the trial. The defense focused solely on the fact that the victim told the investigating officer that the perpetrator, whom she named as Tommy Bayshore, had a birthmark on his face when the appellant, in fact, has none.

And now, as Judge Pearson said in Kindell v. State, 413 So.2d 1283 (Fla. 3d DCA 1982) (Pearson, J. concurring), enter the straw man. The prosecutor asked the arresting officer, Detective Rivera, whether appellant made any statements during the ride to the Dade County Jail. Detective Rivera responded by saying that appellant “kept making statements that he wasn’t in the neighborhood. He wasn’t anywhere near there. That he was at his father’s house on the night of the burglary ...”

Having created the straw man, the prosecutor then proceeded to knock it down. During closing arguments the prosecutor told the jury to use its common sense. “[I]f Thomas Bayshore was at home with his father as he told Officer (sic) Rivera, where’s the one person who can corroborate that?” The prosecutor once again commented on appellant’s failure to call his father as an alibi witness even after there was an objection to his first comment. Appellant moved for a mistrial after the second improper comment. This motion was denied.

In Kindell v. State, Judge Pearson stated that “[a]n inference adverse to the defendant is permitted when the defendant fails to call witnesses only when it is shown that the witnesses are peculiarly within the defendant’s power to produce and the testimony of the witnesses would elucidate the transaction, that is, that the witnesses are both available and competent.” Id. at 1288. See also Lane v. State, 352 So.2d 1237 (Fla. 1st DCA 1977). . The same adverse inference may be shown if the defendant raises alibi as a defense and then fails to call alibi witnesses. Pena v. State, 432 So.2d 715 (Fla. 3d DCA 1983); Jacobs v. State 389 So.2d 1054 (Fla. 3d DCA 1980), rev. denied, 397 So.2d 778 (Fla.1981); Daughtrey v. State, 325 So.2d 456 (Fla. 1st DCA), cert. denied, 336 So.2d 600 (Fla.1976); Jenkins v. State, 317 So.2d 90 (Fla. 1st DCA 1975). In the instant case, however, as in Kindell, supra, the state not only “totally failed to establish the competency and availability of the ... [father as an] alibi witness as a predicate to its argument, but — even more egregiously — itself created, in order to later destroy, the alibi defense.” Id. at 1288.

When the propriety of prosecuto-rial comments is raised on appeal, the key question is “whether or not [we] can see from the record that the conduct of the prosecuting attorney did not prejudice the accused, and unless this conclusion be reached, the judgment should be reversed.” Lipman v. State, 428 So.2d 733, 736 (Fla. 1st DCA 1983), quoting Coleman v. State, 420 So.2d 354, 356 (Fla. 5th DCA 1982). Because the whole issue of alibi was raised by the state, we find that the prosecutor’s comments may have led the jury to believe that appellant had the burden of proving his innocence. Dixon v. State, 430 So.2d 949 (Fla. 3d DCA 1983); Gilbert v. State, 362 So.2d 405 (Fla. 1st DCA 1978). See also Salazar-Rodriguez v. State, 436 So.2d 269 (Fla. 3d DCA 1983); Michaels v. State, 429 So.2d 338 (Fla. 2d DCA 1983).

For these reasons this cause is reversed and remanded for a new trial.