author: BASKIN, Judge.

text:
    Ernesto Ricardo SALAZAR-RODRIGUEZ, Appellant, v. The STATE of Florida, Appellee.
    No. 82-972.
    District Court of Appeal of Florida, Third District.
    July 26, 1983.
    Rehearing Denied Sept. 8, 1983.

      Bennett H. Brummer, Public Defender, and Stephen Loffredo, Asst. Public Defender, for appellant.
    Jim Smith, Atty. Gen., and Marti A. Rothenberg, Asst. Atty. Gen., for appellee.
    Before HUBBART, BASKIN and FERGUSON, JJ.
   BASKIN, Judge.

Appellant complains of three court-sanctioned improprieties committed during his trial. They include: (1) the prosecutor’s thinly veiled attempt to suggest to the jury that appellant was a Mariel boatlift refugee by tracking his moves from Key West in May of 1980 to Arkansas, to Atlanta and then back to Miami; (2) the prosecutor’s argument to the jury that “[I]f you all condone what happened in Hialeah on September 22, 1981, well there is the front door. You can all walk them right through that front door.”; and (3) the prosecutor’s description during closing argument of the testimony that witnesses not called by the defense would have given had they testified. Finding that the errors have been preserved for appellate review and that appellant’s challenges have merit, we reverse.

Our review of the record reveals that “the trial was so fraught with errors that reversal could be bottomed on a multitude of them.” Kirk v. State, 221 So.2d 40, 24 (Fla. 4th DCA 1969). We base our reversal primarily upon the state’s comments on appellant’s failure to call witnesses. Michaels v. State, 429 So.2d 338 (Fla. 4th DCA 1983); Kirk. By placing before the jury testimony that was never elicited because the witnesses were not called to testify, the state itself testified. Such conduct is totally improper. See, e.g., Clinton v. State, 53 Fla. 98, 43 So. 312 (1907); Bradham v. State, 41 Fla. 541, 26 So. 730 (1899); Thompson v. State, 318 So.2d 549 (Fla. 4th DCA 1975), cert. denied, 333 So.2d 465 (Fla. 1976).

Next, we note that during argument in support of the state’s motion to limit questioning of its witnesses the prosecutor stated that questions about the circumstances surrounding the witnesses’ arrival in Florida should be avoided because:

[IJt’s highly prejudicial to them because of the unfortunate reputation that’s come about throughout the community of all people from the Mariel boatlift....

It is just as prejudicial to point out that appellant arrived from Mariel during the boatlift as it is to reveal that fact about prosecution witnesses. The trial court’s ruling that counsel could not refer to any witness, victim or to the defendant as a Mariel refugee but could inquire regarding the date of arrival in the United States did not authorize the devious tactics employed by the state.

The final basis for reversal is the comment by the prosecutor:

Because they figured that you all and rightfully so, would be the most concerned about the kind of activity that goes on in this county, and if you all condone what happened in Hialeah on September 22, 1981, well there is the front door. You can all walk them right through that front door, (emphasis added)

This comment differs little from the comment in McMillan v. State, 409 So.2d 197 (Fla. 3d DCA 1982) and was neither proper nor harmless error.

For these reasons we reverse appellant’s conviction of aggravated battery with a deadly weapon and remand the cause for a new trial.


source: Caselaw Access Project

author: PER CURIAM. HUBBART, Judge

license: Public Domain

text:
    Lou Ann WINEWICA, Appellant, v. Albert J. WINEWICA, Appellee.
    No. 82-1389.
    District Court of Appeal of Florida, Third District.
    July 26, 1983.
    Rehearing Denied Sept. 13, 1983.
    Alfred Manheim, Miami, for appellant.
    Robert J. Black and George Baker Thomson, Coral Gables, for appellee.
    Before BARKDULL, HUBBART and JORGENSON, JJ.
   PER CURIAM.

By this appeal, among other things, the appellant attacks the inadequate alimony award given in a final judgment dissolving her marriage.

The trial court and all counsel labored under the misapprehension that the appel-lee’s federal pension could not be considered in awarding alimony. It appears that such a pension can be considered. Baker v. Baker, 419 So.2d 735 (Fla. 1st DCA 1982); Cullen v. Cullen, 413 So.2d 1196 (Fla. 1st DCA 1982); Higgins v. Higgins, 408 So.2d 731 (Fla. 1st DCA 1982); 10 U.S.C.A. § 1408.

Therefore all awards in the nature of alimony are reversed and the matter is returned to the trial court for further hearing on the amount of alimony to be awarded the wife.

The other provisions of the final judgment which awarded certain properties to the respective parties are affirmed.

Affirmed in part, reversed in part with directions.

HUBBART, Judge

(dissenting).

The court by today’s decision reverses “all awards in the nature of alimony” contained in the final judgment of marriage dissolution based on the alleged failure of the trial court to consider the appellee/husband’s federal pension in making such awards, and remands the cause for further proceedings “on the amount of alimony to be awarded the wife,” wherein presumably the trial court must take into account the appel-lee/husband’s federal pension. I must respectfully disagree with this disposition for two reasons.

First, I think the trial court did consider the appellee/husband’s federal pension in making the alimony award in this case. The final judgment of marriage dissolution, in effect, so states in awarding the alimony herein:

“3. The Court, acknowledging the Husband’s employment in Maitland, Florida with the State of Florida, his infirmities and federal government compensation, the respective incomes of the parties and the other factors of this 35-year marriage, hereby awards the Wife alimony of $125.00 per week, commencing April 24th, 1982 and continuing each Saturday thereafter until the Husband attains age 62 years, at which time the alimony shall be reduced to $100.00 per week. Alimony shall terminate upon the remarriage of the Wife or the death of either party.” (R. 139) (emphasis added)

Plainly, the court was referring to the ap-pellee/husband’s $15,000 a year federal pension, as well as other federal benefits, which the record reveals the appellee/husband is currently receiving as compensation from the federal government. Moreover, the appellant/wife pled the existence of said pension below, and the trial court at the final hearing specifically accepted the $15,000 pension as part of the appellee/husband’s overall annual income in this case. All things considered, I think it beyond dispute that the trial court did, in fact, take into consideration the subject federal pension in making the award of alimony herein. Beyond that, I see nothing in the record which indicates in any way that the trial court was under a misapprehension, as the court now holds, that the above-stated pension could not be considered in awarding the alimony herein.

Second, the appellant/wife makes no complaint, in any event, as to the adequacy of the alimony award in this ease, thereby rendering it irrelevant what factors were considered in making this otherwise adequate award. In her main brief, the appellant/wife raises only two points on appeal: (1) an alleged denial of due process in the way the trial court conducted the final hearing below, although no objection was raised below concerning same; and (2) the failure of the trial court to award her a “special equity” in the marital home under Duncan v. Duncan, 379 So.2d 949 (Fla.1980). She makes no contention in any of the briefs filed in the cause or in her oral argument before the court that she was short changed in the above-stated alimony award. It, therefore, makes no difference what the trial court did or did not consider in making the alimony award herein as the alimony award, at least as to adequacy, is not challenged herein.

In sum, then, I see no point to a reversal and remand concerning the alimony award of the final judgment herein as there is nothing concerning that award which remotely rises to the level of a fundamental error as defined by the Florida Supreme Court. Sanford v. Rubin, 237 So.2d 134, 137 (Fla.1970). Moreover, I am not otherwise persuaded to upset the judgment appealed from based on the points actually raised by the appellant/wife on this appeal. Canakaris v. Canakaris, 382 So.2d 1197 (Fla. 1980); Duncan v. Duncan, supra; Castor v. State, 365 So.2d 701, 703 (Fla.1978). I would affirm the final judgment under review in all respects.

      . The appellant/wife’s Petition for Dissolution of Marriage alleges in pertinent part:
      “8. Petitioner is in need of permanent alimony and child support and Respondent has the ability to provide it for her so that she and Scott can have the same standard of living which they have enjoyed during the marriage. Although Respondent has been blind since prior to the inception of this marriage, Respondent has provided a high standard of living for Petitioner and Scott. He receives a tax free pension of approximately $15,000.00 a year and earns approximately $20,000.00 in addition thereto as an appeals referee with the State of Florida.” (R. 2) (emphasis added)

      . In announcing its decision below, the trial court stated in pertinent part:
      “I also understand that he [appellee/hus-band] has a Federal pension of $15,000 a year, and he also is working for the State for $21,733.92 gross or a net of $16,917.18 which he gets from the State.”
      (R. 129)


author: PER CURIAM.

text:
    Katherine Allison BLEEMER, Appellant, v. Robert R. BLEEMER, Appellee.
    No. 82-1742.
    District Court of Appeal of Florida, Third District.
    July 26, 1983.
    Rehearing Denied Sept. 6, 1983.
    Steven R. Brownstein, Miami, for appellant.
    Lawrence H. Rogovin, Miami, for appel-lee.
    Before BASKIN, FERGUSON and JOR-GENSON, JJ.
   PER CURIAM.

Appellant has failed to demonstrate that the trial court’s denial of her motion for continuance of the contempt hearing constituted an abuse of discretion. In re Gregory, 313 So.2d 735 (Fla.1975); Buckley Towers Condominium, Inc. v. Buchwald, 340 So.2d 1206 (Fla. 3d DCA 1976), cert. denied, 348 So.2d 945 (Fla.1977).

Where the motion for contempt stated the month and year (i.e., May, 1981), but not the exact date of the appellant’s alleged violation of the court’s order of May 28,1981, there was no showing of prejudice in that the violations continued past May 28, 1981 and their exact dates were established by the evidence. That the appellant willfully and contemptuously disobeyed an order of the court by removing her husband’s possessions from the former marital home, and destroying or causing damage to the home or its contents, was also established by the evidence beyond a reasonable doubt. See Demetree v. State, 89 So.2d 498 (Fla.1956).

After an appeal was taken, the trial court was without jurisdiction to modify or alter the final judgment of dissolution by setting aside an alimony award. Blum v. Blum, 382 So.2d 52 (Fla. 3d DCA 1980).

Affirmed in part; reversed in part and remanded.


author: BERANEK, Judge.

text:
    Bill R. WINCHESTER, as Trustee, et al., Appellants, v. AMRHEIN-HATCHER, INC., a Florida corporation, and Larasan, Inc., a foreign corporation, Appellees.
    No. 82-1660.
    District Court of Appeal of Florida, Fourth District.
    July 27, 1983.
    Rehearing Denied Sept. 6, 1983.
    Michael A. Schroeder of Zeiher & Schroeder, Fort Lauderdale, for appellants.
    Charles A. Nugent, Jr., of Cone, Wagner, Nugent, Johnson, Hazzouri & Roth, P.A., West Palm Beach, for appellees.
   BERANEK, Judge.

The appellant, Winchester, appeals a final judgment entered in favor of appellees, Amrhein-Hatcher, Inc., and Larasan, Inc., on July 13, 1982. The judgment was entered on a counterclaim and tried separately from the main action.

The overall case involves a dispute over a real estate commission between Winchester, the seller of the real property; Amrhein-Hatcher, Inc., a Florida real estate broker; and Larasan, Inc., a Virginia real estate broker. The contract for sale of the realty provided for a commission to be paid by the seller to the broker(s) in installments over an extended period of time. The contract also provided that the seller’s liability for a commission would be terminated if a foreclosure proceeding was instituted against the property.

The action commenced when Amrhein-Hatcher, Inc., and Larasan, Inc., sued Winchester (the seller) for the balance of the real estate commission due pursuant to the contract between the parties. The seller then counterclaimed for recovery of all commissions previously paid under the contract. Judgment on the main claim was entered in favor of the defendant, seller, on the grounds that the commission obligation had terminated when a foreclosure action had been filed against the property. The counterclaim by seller for return of all commission payments was then heard on a non-jury basis and judgment was entered in favor of the brokers holding that the seller was not entitled to recover his previously paid commissions.

Winchester appeals contending that the trial court erred in failing to find that the commission agreement was void and totally unenforceable in that Larasan was an out-of-state broker performing brokerage services in Florida. Appellant’s argument is that the commission agreement here was invalid pursuant to Section 475.41, Florida Statutes (1981), which provides as follows:

475.41 Contracts of unlicensed person for commissions invalid
No contract for a commission or compensation for any act or service enumerated in s. 475.01(3) is valid unless the broker or salesman has complied with this chapter in regard to issuance and renewal of the license at the time the act or service was performed.
475.01 Definitions
(1) As used in this chapter:
(a) “Commission” means the Florida Real Estate Commission.
(b) “Department” means the Department of Professional Regulation.
(c) “Broker” means a person who, for another, and for a compensation or valuable consideration directly or indirectly paid or promised, expressly or impliedly, or with an intent to collect or receive a compensation or valuable consideration therefor, appraises, auctions, sells, exchanges, buys, rents, or offers, attempts or agrees to appraise, auction, or negotiate the sale, exchange, purchase, or rental of business enterprises or business opportunities or any real property or any interest in or concerning the same, including mineral rights or leases, or who advertises or holds out to the public by any oral or printed solicitation or representation that he is engaged in the business of appraising, auctioning, buying,, selling, exchanging, leasing, or renting business enterprises or business opportunities or real property of others or interests therein, including mineral rights, or who takes any part in the procuring of sellers, purchasers, lessors or lessees of business enterprises or business opportunities or the real property of another, or leases, or interest therein, including mineral rights, or who directs or assists in the procuring of prospects or in the negotiation or closing of any transaction which does, or is calculated to, result in a sale, exchange, or leasing thereof, and who receives, expects, or is promised any compensation or valuable consideration, directly or indirectly therefor; and all persons who advertise rental property information or lists. The term “broker” also includes any person who is a partner, officer, or director of a partnership or corporation which acts as a broker.

Appellant asserts that the president of Larasan, Inc., performed such services in Florida despite the fact that he was a licensed broker only in the State of Virginia. There was conflicting evidence on the subject. The president of Larasan, Inc., was a relative of the purchaser of the property and was in the State of Florida while negotiations were going on. Evidence was introduced that his visit in Florida was a personal vacation and that his involvement was as a family member. At the very least, this was a question of fact for the trial court to. decide on the evidence presented. Appellant relies on Paris v. Hilton, 352 So.2d 534 (Fla. 1st DCA 1977). This case is distinguishable. There, an out-of-state broker performed numerous services including direct telephone calls, negotiations as to the terms of sale, a visit to the property, photographing the property, preparation of the contracts, and working with the purchaser’s attorneys. In the instant case, the evidence indicates that the two Florida brokers involved in the deal obviously performed brokers’ services in Florida while the out-of-state broker was primarily engaged in advising the buyer in Virginia. Therefore, the trial court did not err in finding that the out-of-state broker had not performed brokerage services in Florida.

Appellees correctly maintain that Lara-san, Inc., was entitled to a referral fee or the sharing of a commission as authorized by Section 475.25(1), (h),. Florida Statutes (1981). The judgment below is thus affirmed.

AFFIRMED.

WALDEN, J., and COCALIS, PATRICIA W., Associate Judge, concur.

      . Section 475.01(c) replaces Section 475.01(3) effective July 1, 1982.


text:
    Louis BRICKELL and Ann Brickell, his wife, Appellants, v. HOLLYWOOD, INC., a Florida corporation and Stanley M. Beckerman, as Escrow Agent, Appellees.
    No. 82-1691.
    District Court of Appeal of Florida, Fourth District.
    July 27, 1983.
    Rehearing Denied Sept. 14, 1983.
    Mark H. Goldberg of Mark H. Goldberg, P.A., Miramar, for appellants.
    David S. Romanik of Landefeld & Ro-manik, Hollywood, for appellees.
   PER CURIAM.

The critical issue in this case is whether the appellants exercised good faith in their attempt to sell their home and thereby qualify for a mortgage-loan for the purchase of another residence. Since the resolution of this issue involves disputed issues of fact, the trial court’s entry of summary judgment cannot be sustained. See Unijax, Inc. v. Factory Insurance Association, 328 So.2d 448 (Fla. 1st DCA), cert. denied, 341 So.2d 1086 (Fla.1976).

REVERSED and REMANDED.

ANSTEAD, C.J., HURLEY, J., and WES-SEL, JOHN D., Associate Judge, concur.


text:
    STATE of Florida, Appellant, v. John Coy ADAMS, Jr., Appellee.
    No. 82-2123.
    District Court of Appeal of Florida, Fourth District.
    July 27, 1983.
    Rehearing Denied Aug. 31, 1983.

      Jim Smith, Atty. Gen., Tallahassee, and Marlyn J. Altman, Asst. Atty. Gen., West Palm Beach, for appellant.
    Richard L. Jorandby, Public Defender, and Louis G. Carres, Asst. Public Defender, West Palm Beach, for appellee.
   BERANEK, Judge.

The State appeals an order granting the defendant’s motion to suppress physical evidence. Cocaine was found in defendant’s home when it was searched pursuant to a search warrant. The warrant was based on probable cause established after a confidential informant participated in a “controlled buy” under the direction of the County Sheriff’s Organized Crime Bureau. The informant was searched immediately before and after the buy to guarantee that no money or contraband was hidden on her person. Based on the fact that the officer did not perform a sufficient body search, the trial court found that the warrant was based on less than probable cause, and the defendant’s motion to suppress was granted. We reverse.

The subject of the requirements of search warrants issued on the basis of tips of confidential informants has recently been considered by the United States Supreme Court. In Illinois v. Gates, et ux.,-U.S. -, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983), it was at least made clear that when analyzing affidavits based on an informant’s tips, the magistrate should consider the totality of the circumstances to determine whether probable cause exists, as opposed to applying the rigid two-pronged test espoused by Aguilar v. Texas, 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723 (1969), and Spinelli v. United States, 393 U.S. 410, 89 S.Ct. 584, 21 L.Ed.2d 637 (1969).

In this case, considering the totality of the circumstances established by the affidavit considered by the magistrate, it is clear that he had a substantial basis for concluding that probable cause existed.

We hold that it was not necessary to require a strip search of the informant in order to establish probable cause given the circumstances of this case. Therefore, the decision of the lower court granting the motion to suppress is reversed and the matter is remanded for further proceedings.

REVERSED AND REMANDED.

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


text:
    NETTLES ISLAND, INC., a Condominium, Appellant, v. Dan ELY and Betty Hastings Ely, his wife, et al., Appellees.
    No. 82-2430.
    District Court of Appeal of Florida, Fourth District.
    July 27, 1983.
    F. Shields McManus of McManus, Stewart & Ferraro, P.A., Stuart; for appellant.
    James F. Gray of Gilbert & Orr, P.A., Fort Pierce, for appellees.
   PER CURIAM.

We affirm based on our understanding and interpretation of these two matters:

A. The final judgment dated July 13, 1982, and order dated November 5, 1982, were applicable to the unit owners meeting in February 1983, and not to future meetings.
B. Section 607.101, Florida Statutes (1981), while providing general guidelines and limitations upon the use of proxies, does not command the use of a specified proxy “form”. So long as a proxy conforms to the requirement of general law, it may specify or limit the authority of the proxy or it may be general and unlimited.

Affirmed.

LETTS, HERSEY and WALDEN, JJ., concur.


author: COBB, Judge. SHARP, Judge,

text:
    Willie James WOODS, Appellant, v. STATE of Florida, Appellee.
    No. 82-235.
    District Court of Appeal of Florida, Fifth District.
    July 28, 1983.
    Rehearing Denied Aug. 29, 1983.

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

Appellant, Willie James Woods, appeals his conviction, following a jury trial, of aggravated battery. The only lesser included offense submitted by instruction or verdict form to the jury was battery.

The issue is whether or not the trial court erred by admitting into evidence, over proper objection, the testimony of the victim that during the course of a beating administered to her by Woods with a wire coat hanger he made the statement that she had lied to him and that he once had pushed a woman from a roof for lying to him. The state contends the statement was admissible to show the intent of Woods to inflict harm on the victim.

The state’s argument fails because of the nature of the charge against the defendant. Section 784.045, Florida Statutes (1981), provides:

Aggravated battery.—

(1) A person commits aggravated battery who, in committing battery:

(a) Intentionally or knowingly causes great bodily harm, permanent disability, or permanent disfigurement; or

(b) Uses a deadly weapon.

(2) Whoever commits aggravated battery shall be guilty of a felony of the second degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084.

The charge against Woods in the information was as follows:

Willie James Woods, on the ninth day of June, 1979, in said County and State, did, in violation of Florida Statute 784.-045(l)(b), commit a battery upon Shirley J. Wells, and in furtherance thereof, did actually and intentionally touch or strike the said Shirley J. Wells against the will of the said Shirley J. Wells, and in the commission of said battery did use a deadly weapon, to-wit: a coat hanger.

While the statement admitted by the trial court may very well have been relevant and admissible had the aggravated battery charge against Woods been based upon an intent to cause great bodily harm, etc., under subsection (l)(a) of the statute, such was not the case. The charge was based solely upon the state’s classification of the coat hanger as a deadly weapon pursuant to subsection (l)(b) of the statute. As dubious as this classification may be, that point is not raised on this appeal. What is raised, however, is the admissibility of the statement — which is irrelevant to either the classification of the weapon or to the fact that a battery (an actual and intentional touching or striking of another person against that person’s will) was committed by Woods. The prejudicial effect of the statement upon a jury cannot reasonably be disputed.

Accordingly, we reverse and remand for a new trial.

REVERSED and REMANDED.

ORFINGER, C.J., concurs.

SHARP, J., dissents with opinion.

SHARP, Judge,

dissenting.

While I agree with the majority opinion that Woods’ statements uttered during the course of the beating may not be technically relevant to prove the charge of aggravated battery under section 784.045(l)(b), Florida Statutes (1981), as opposed to (l)(a), I cannot agree it was error to admit them. All of the facts and circumstances that happen during the commission of a crime, including any aspect of the defendant’s conduct or even the time of day, are relevant as part of the res gestae of the crime. See 16 Fla.Jur.2d Criminal Law § 1133 (1979).

Further, the proof in this case that the beating occurred was overwhelming. In his closing argument, Woods’ defense counsel did not argue Woods had not beaten his victim, only that this was not aggravated battery. I would affirm.

      . Florida Standard Jury Instructions in Criminal Cases (1981), page 260.


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

text:
    Elizabeth M. FORYS, etc., Appellant, v. Roger McLAUGHLIN and Landmark Bank of Orlando, Appellees.
    No. 82-1204.
    District Court of Appeal of Florida, Fifth District.
    July 28, 1983.
    Rehearing Denied Aug. 19, 1983.

      Arthur J. Ranson, III, of Robertson, Williams, Duane, Lewis & Ranson, P.A., Orlando, for appellant.
    Ronald W. Black, Orlando, for appellee McLaughlin.
    F. Hartselle Baker of Mahaffey & Baker, P.A., Orlando, for appellee Landmark Bank of Orlando.
   FRANK D. UPCHURCH, Jr., Judge.

Elizabeth Forys appeals from a summary final judgment in favor of appellees Roger McLaughlin and Landmark Bank of Orlando in a suit seeking to recover monies which were alleged to have been converted by McLaughlin. We reverse.

Forys’ complaint was in three counts. In count I, she alleged that McLaughlin converted to his own use $120,301.40 in certificates of deposit, bank deposits and various negotiable instruments which had been the property of her deceased husband, John Forys. In count II, she sought to impose a constructive trust on such funds, alleging that McLaughlin, the decedent’s stepson, had acquired such monies through fraud and undue influence in that he obtained the decedent’s signatures on a power of attorney and appointment of deputy while the decedent was extremely ill and incompetent and then presented these documents to officials at Landmark Bank in order to gain access to the decedent’s safe deposit box which contained the certificates and bankbooks. Count III sought recovery from the bank on the basis that the bank knew or should have known, in light of the almost illegible signatures on the documents, that they were forgeries and that the bank failed to exercise reasonable care in inquiring as to the genuineness of the signatures.

McLaughlin and the bank each moved for summary judgment. In support of its motion, the bank submitted an affidavit of its branch vice president, Brown, who stated he had personal knowledge of the decedent and had accepted the power of attorney and appointment of deputy presented by McLaughlin. He further stated that upon initial presentation of the documents, he telephoned the decedent at his hospital room, recognized his voice and inquired as to the documents. Brown said that the decedent acknowledged signing the power of attorney and appointment of deputy authorizing McLaughlin to handle his banking affairs. Brown added that he told McLaughlin to have the documents executed on bank forms which McLaughlin subsequently did.

McLaughlin adopted Brown’s affidavit and also averred that the decedent had named him trustee over the funds in question for the benefit of McLaughlin’s mother.

Forys filed an affidavit of a professional documents examiner who stated that in his opinion the documents were not signed by the same person who signed as John Forys on other bank documents executed some years earlier.

Forys’ action against the bank is for conversion and under section 673.419, Florida Statutes (1981):

(1) An instrument is converted when:
* * 5⅜ * * *
(c) It is paid on a forged indorsement.
* * ^ * * * *
(3) Subject to the provisions of this code concerning restrictive indorsements a representative, including a depositary or collecting bank, who has in good faith and in accordance with the reasonable commercial standards applicable to the business of such representative dealt with an instrument or its proceeds on behalf of one who was not the true owner is not liable in conversion or otherwise to the true owner beyond the amount of any proceeds remaining in his hands.

Under this section, a payee, in order to recover directly from a collecting bank, must establish first, that payment on a forged indorsement occurred and second, that the bank did not act in good faith and in accordance with reasonable commercial standards. Jackson Vitrified China v. Peo- pie’s American, 388 So.2d 1059 (Fla. 3d DCA 1980).

The bank maintains that there is no evidence that it accepted forged instruments because Forys’ expert merely averred that the signatures are not by the same person who signed documents as “John For-ys” when the account was opened. The bank further argues that in any event, the evidence shows that it acted in accordance with reasonable commercial standards in accepting the documents.

First of all, the trial court, in passing upon McLaughlin’s and the bank’s motions, was required to resolve all doubts regarding the existence of genuine issues of material fact against them and draw all reasonable inferences in favor of Forys. Wills v. Sears Roebuck & Co., 351 So.2d 29 (Fla.1977); Harvey Building Inc. v. Haley, 175 So.2d 780 (Fla.1965). A reasonable inference could be drawn from the expert’s affidavit that the signatures on the power of attorney and appointment of deputy were not that of John Forys, especially since Brown, the bank vice-president, indicated in his affidavit that John Forys had entered into a safe deposit rental agreement, opened a passbook savings account, and purchased a certificate of deposit from the bank in the late 1970’s. It was the signatures on these documents which the expert compared to the signatures on the power of attorney and appointment of deputy.

The bank further points out that in order to constitute a forgery, the false signatures must have been executed with the intent to defraud. Iberville Trust & Savings Bank v. City Cafe, 143 So. 73, 75 (La.App.1932). See Hepburn v. Chapman, 109 Fla. 133, 149 So. 196 (1933). However, the issue of fraud is generally not a proper subject for summary judgment since it requires a full explanation of the facts and circumstances of the alleged wrong to determine if they collectively constitute a fraud. Amazon v. Davidson, 390 So.2d 383 (Fla. 5th DCA 1980); Alepgo Corp. v. Pozin, 114 So.2d 645 (Fla. 3d DCA 1959). Forys should have been given an opportunity to prove intent to defraud at trial.

As to the bank’s contention that its affidavit establishes that it acted in accordance with reasonable commercial standards in honoring the power of attorney and appointment of deputy, numerous cases have held that issues of good faith and reasonable commercial standards under section 673.419(3) are factual questions to be determined by the trier of fact. Travelers Ins. Co. v. Jefferson Nat. Bank, 404 So.2d 1131 (Fla. 3d DCA 1981); Barnett Bank of Miami Beach v. Lipp, 364 So.2d 28 (Fla. 3d DCA 1978).

As to the entry of summary judgment in favor of McLaughlin, as noted above, the expert’s affidavit and reasonable inferences therefrom, indicate that the decedent did not sign the power of attorney and appointment of deputy and questions as to whether McLaughlin signed them and if so, whether he did so with the intent to defraud, were not proper for resolution by summary judgment. This is especially true in light of the deposition testimony of the decedent’s neurologist who testified that he examined the decedent on the day before the documents were signed and found him to be lethargic, stuporous and acutely ill. The neurologist added that he did not believe the decedent to be competent at that time. Clearly, this evidence created a disputed issue of material fact since according to McLaughlin’s affidavit, the decedent was competent at the time he signed the documents in question.

REVERSED.

ORFINGER, C.J., and COBB, J., concur.


author: DAUKSCH, Judge. SHARP, Judge,

text:
    Elaine K. DEWEY, Appellant/Cross-Appellee, v. William DEWEY, Appellee/Cross-Appellant.
    No. 82-1276.
    District Court of Appeal of Florida, Fifth District.
    July 28, 1983.
    Rehearing Denied Aug. 25, 1983.
    Barbara T. Taylor, of Taylor & DaCosta, Cocoa Beach, and Marcia K. Lippincott, of Marcia K. Lippincott, P.A., Orlando, for appellant/ cross-appellee.
    M. Brice Corder, of Saxon & Richardson, P.A., Melbourne, for appellee/cross-appel-lant.
   DAUKSCH, Judge.

This is an appeal in a marriage dissolution case. We affirm the judgment in all respects except failure to grant the prayer for special equity in the marital home. It is clear from the evidence that funds unconnected with the marriage were used to purchase the home. The cross-appellant (husband) sold his separately owned house and commercial building in Wisconsin and applied the money to the purchase of the Florida home which was jointly owned. Under those circumstances the husband is entitled to a special equity in the property. Weiss v. Weiss, 390 So.2d 1236 (Fla. 4th DCA 1980). The judgment is affirmed in all respects except the paragraph which denies the husband his special equity, which paragraph is reversed, and this cause is remanded for determination of that special equity and judgment thereon.

AFFIRMED in part REVERSED in part and REMANDED.

COBB, J., concurs.

SHARP, J., concurs in part, dissents in part with opinion.

SHARP, Judge,

concurring and dissenting in part.

I concur in the affirmance of this case in all respects except the lower court’s denial of attorney fees for the wife. At the time of the dissolution the wife’s only income was temporary alimony of $200.00 per week — considerably less the $681.00 established in the record as her current weekly expenses. The husband’s gross weekly income was $2,609.07, and his net was $1,292.06, after deducting the temporary alimony, alimony for a prior wife, and support for an adult daughter. The wife’s financial affidavit disclosed modest liquid assets — $8,000.00 in a Hutton account and $10,000.00 in a revocable trust. The husband’s financial affidavit disclosed various accounts totalling $49,596.24, and a $9,000.00 IRA. From these circumstances one cannot reasonably conclude the parties have a similar ability to secure competent legal counsel. Nichols v. Nichols, 418 So.2d 1198 (Fla. 5th DCA 1982); Fried v. Fried, 390 So.2d 392 (Fla. 2d DCA 1980); Mahoney v. Mahoney, 380 So.2d 497 (Fla. 2d DCA 1980); Melton v. Melton, 251 So.2d 705 (Fla. 1st DCA 1971).


text:
    William P. COBOURN, Appellant, v. Carolyn L. COBOURN, Appellee.
    No. 82-1478.
    District Court of Appeal of Florida, Fifth District.
    July 28, 1983.
    Rehearing Denied Aug. 17, 1983.
    William F. Simonet, Orlando, and Stephen P. Kanar, Orlando, for appellant.
    Gordon V. Frederick, Sanford, for appel-lee.
   DAUKSCH, Judge.

This is an appeal from a judgment setting aside an agreement in a marriage dissolution case and a conveyance of real property. The question on appeal is whether a Seminole County Circuit Court has the authority to set aside the conveyance which was made pursuant to an agreement incorporated into an Orange County Circuit Court judgment in a marriage dissolution case.

In June 1981, a final judgment of dissolution was rendered in Orange County which provided in part that:

[T]he Separation, Child Custody and Property Settlement Agreement executed by the parties and dated the 20th day of April, 1981 is hereby ratified, confirmed and adopted as a part of this final judgment and is incorporated herein by reference as if fully set forth herein and shall survive this judgment, the parties herein being ordered to adhere to the provisions set forth therein.

Within the Agreement was a provision that the appellee would convey to appellant some real property situated in Seminole County.

It is appellee’s position that because the Orange County judgment says that the Agreement “shall survive this judgment that the Seminole County Circuit Court has jurisdiction and authority to order, as it did, that:

1. The Agreement of the parties bearing date April 20, 1981 and filed in evidence is hereby determined to be void because of the duress, coercion and extortion practiced upon the plaintiff CAROLYN L. COBOURN by the defendant WILLIAM P. COBOURN.
2. The conveyance by plaintiff CAROLYN L. COBOURN to defendant WILLIAM P. COBOURN recorded in ORB 1341, page 1470, of the Public Records of Seminole County, Florida, is hereby vacated, set aside and held for naught as to Lots 106 and 107, LAKE SYLVAN ESTATES, and there is hereby restored to plaintiff CAROLYN L. COBOURN her undivided one-half interest, as tenant in common, in and to the lands described as
Lots 106 and 107, LAKE SYLVAN ESTATES, as per Plat Book 12, page 13, Public Records of Seminole County, Florida.
3. The defendant WILLIAM P. COB-OURN held Lot 105, LAKE SYLVAN ESTATES in constructive trust for the benefit of plaintiff CAROLYN L. COB-OURN and that plaintiff is entitled to an accounting of the money received by defendant from the sale of said Lot 105.
4. The interest of plaintiff CAROLYN L. COBOURN in and to all personal property which was jointly owned by the parties as of the date of said agreement is hereby restored to plaintiff CAROLYN L. COBOURN.
5. Plaintiff’s demand for attorneys fees is denied; however, costs are hereby assessed against the defendant in the amount of $419.05, for which judgment is hereby entered in favor of plaintiff CAROLYN L. COBOURN.

It is appellant’s position that only the Orange County Circuit Court has jurisdiction and authority to determine the matter because the agreement for the conveyance was made a part of the final judgment and thus the conveyance was done in compliance with a court ordered requirement.

We agree with appellant and hold that any attack upon a conveyance of real property, which conveyance was done in compliance with a court order or judgment, must be made in the court which ordered the conveyance. Rule 1.540(b), Florida Rules of Civil Procedure, says:

(b) Mistakes; Inadvertence; Excusable Neglect; Newly Discovered Evidence; Fraud, etc. On motion and upon such terms as are just, the court may relieve a party or his legal representative from a final judgment, decree, order or proceeding for the following reasons: (1) mistake, inadvertence, surprise or excusable neglect; (2) newly discovered evidence which by due diligence could not have been discovered in time to move for a new trial or rehearing; (3) fraud (whether heretofore denominated intrinsic or extrinsic), misrepresentation or other misconduct of an adverse party; (4) the judgment or decree is void; (5) the judgment or decree has been satisfied, released or discharged or a prior judgment or decree upon which it is based has been reversed or otherwise vacated or it is no longer equitable that the judgment or decree should have prospective application. The motion shall be made within a reasonable time, and for reasons (1), (2), and (3) not more than one year after the judgment, decree, order or proceeding was entered or taken. A motion under this subdivision does not affect the finality of a judgment or decree or suspend its operation. This rule does not limit the power of a court to entertain an independent action to relieve a party from a judgment, decree, order or proceeding or to set aside a judgment or decree for fraud upon the court.
Writs of coram nobis, coram vobis, au-dita querela and bills of review and bills in the nature of a bill of review are abolished and the procedure for obtaining any relief from a judgment or decree shall be by motion as prescribed in these rules or by an independent action,

(emphasis added).

We place special importance upon the words in the rule “the court may relieve ...” and interpret the rule to mean that only the court which ordered the conveyance has the authority to withdraw the order and set aside the conveyance. See Bakshandeh v. Bakshandeh, 370 So.2d 417 (Fla. 3d DCA 1979).

In Davis v. Fisher, 391 So.2d 810, 811 (Fla. 5th DCA 1980), this court held: “Because the property settlement agreement was ratified by the court and incorporated in the judgment, it rises to the dignity of that judgment and the trial court had no authority to review it.” (citations omitted). Just as one trial judge has no authority to review another’s judgment, a trial court from a different circuit cannot countermand the other’s judgment; although, of course, all circuit courts can have statutory authority to modify alimony, custody, child support and other such matters where residential factors permit.

Where fraud, mistake, excusable neglect or other factors would permit the setting aside of a judgment, then only the court which rendered the judgment may set it aside, and because the Agreement was incorporated within the judgment we must say the Seminole Circuit Court had no authority to set aside the conveyance.

REVERSED.

COBB, J., concurs.

SHARP, J., dissents with opinion.

SHARP, Judge,

dissenting.

I would affirm the judgment appealed on the ground that this proceeding constituted an independent action to relieve appellee from a judgment procured by “fraud (whether heretofore denominated intrinsic or extrinsic), misrepresentation or other misconduct of an adverse party.” Fla.R. Civ.P. 1.540(b)(3). Appellee alleged that her consent to the property settlement agreement was procured by appellant’s duress and misrepresentations made during their dissolution proceeding. The trial judge in Seminole County found that appel-lee and appellant had an extraordinary relationship during their dissolution which enabled appellant to extort, by threats and misrepresentations, appellee’s agreement to the settlement. Appellee was not represented by independent counsel. The trial judge concluded that appellee should be relieved from the effect of the agreement, and in effect, the dissolution judgment which incorporated it.

Such actions, prior to adoption of Rule 1.540(b), Florida Rule of Civil Procedure, could be brought in any court having proper jurisdiction — not just the court which entered the original judgment. In State ex rel. Willys v. Chillingworth, 124 Fla. 274, 168 So. 249 (1936), the Supreme Court of Florida acknowledged “the general proposition that an independent suit to set aside a decree for fraud need not be brought in the court where the decree was rendered, but may be brought in any court having jurisdiction of the parties and the subject matter.” Id., 168 So. at 251. Further, it is well established that any competent court may adjudicate the invalidity of an order or decree which is void for lack of jurisdiction of the parties or subject matter. Gay v. McCaughan, 105 So.2d 771 (Fla.1958). The wording in Rule 1.540(b) is precisely the same for void judgments as it is for judgments obtained by fraud or other misconduct of the adverse party. Therefore, the statement in the majority opinion limiting all attacks on judgments under Rule 1.540(b) to the court of rendition is much too broad.

I agree with the view expressed by our sister court in Brown v. Brown, 432 So.2d 704 (Fla. 3d DCA 1983), that would allow an independent suit in this case. Brown rejects Alexander v. First National Bank of Titusville, 275 So.2d 272 (Fla. 4th DCA 1973), and its progeny, which apparently hold that an independent suit to set aside a judgment under Rule 1.540(b) can only be brought for cases involving fraud on the court. Brown held that an independent suit could also be brought to obtain relief from judgments for extrinsic fraud.

I think this case involves fraud on the part of appellant, or at least gross misconduct, for which equity traditionally granted relief in an independent suit. Columbus Hotel Corporation v. Hotel Management Company, 116 Fla. 464, 156 So. 893 (1934). Rule 1.540(b) makes no distinction between extrinsic or intrinsic fraud, or misrepresentations, or other misconduct of an adverse party which procured a judgment. We should not create any. I would affirm this judgment because I think an independent suit to attack the dissolution judgment was proper in this case.


text:
    FLORIDA STATE UNIVERSITY, Appellant, v. Roy Clarence BROWN, Appellee.
    No. AM-255.
    District Court of Appeal of Florida, First District.
    July 29, 1983.
    Gerald B. Jaski, Gen. Counsel, Tallahassee, for appellant.
    Michael A. Rome of Legal Services of North Fla., Inc., Tallahassee, for appellee.
   PER CURIAM.

Appellant appeals a final order of the Secretary of Administration finding that appellee did not abandon his position, but rather involuntarily resigned through a combination of circumstances which were in part the responsibility of appellant, and ordering appellant to reemploy appellee by a reinstatement position. We reverse.

Appellee was employed as a postal clerk at the University. On November 2, 1981, he was arrested and placed in county jail. The following day, appellant’s personnel technician visited appellee in jail and advised him to request a leave of absence for the period of incarceration prior to trial. Pursuant to that advice, appellee signed an agency leave form requesting a leave of absence without pay for 20 days commencing November 23, 1981. That request was subsequently granted. Thereafter, appellee failed to post bond for his release pending trial and was thus still incarcerated on November 23, the day he was to return to work. On November 30, 1981, appellant wrote to appellee notifying him of his separation from employment due to his unauthorized absence from work on November 23, 24, and 25, 1981. Said notification, which was sent by certified mail to the address stated on appellee’s W-4 form, was returned unclaimed.

On March 1, 1982, one day following his release from prison, appellee sought unsuccessfully to return to work. The record shows that between November 3, 1981, the date of appellee’s initial request for leave, and March 1,1982, appellee never contacted the employer to request an extension of leave.

In the order sought to be reviewed, the Secretary concluded that the burden was on the employee to request a leave of absence and that the granting of same was a discretionary right of management. Nevertheless, the Secretary determined that, since appellant initially undertook a “ministerial role” at the time of appellee’s arrest by advising appellee, it was incumbent upon appellant to continue that role by the same method and mode, and to thus further keep appellee advised of his leave status. By this view, it was appellant's obligation to contact appellee in jail in order to accord him the opportunity to request further leave.

The order of the Secretary, although not specifically articulated, is essentially one founded upon the principles of equitable estoppel, which require a representation as to a material fact that is contrary to a later asserted position, reliance on that representation, and a change in position detrimental to the party claiming the estoppel. Long v. Department of Administration, Division of Retirement, 428 So.2d 688 (Fla. 1st DCA 1983); Department of Revenue v. Anderson, 403 So.2d 397 (Fla.1981).

The agency’s undertaking in this case of a humanistic role in seeking to assist its employee is not an instance or circumstance calling for the application of the doctrine of equitable estoppel, and the agency was not thereby obligated to excuse the employee’s failure, to request an extended leave of absence. Even were this an appropriate case for application of the doctrine, appellee has failed to establish either a representation as to any material fact or sufficient reliance upon the agency’s prior actions or conduct. Accordingly, the order of the Secretary is reversed.

BOOTH, WIGGINTON and NIMMONS, JJ., concur.

      . Section 22A-7.10(2)(a), Florida Administrative Code, provides, in relevant part, that:
      An employee who is absent without authorized leave of absence for three consecutive workdays shall be deemed to have abandoned the position and to have resigned from the Career Service.
      Section 22A-14.01(1), Florida Administrative Code, defines, abandonment of position as:
      [T]he unauthorized absence by an employee from the employee’s position for 3 consecutive workdays.


author: WIGGINTON, Judge.

text:
    William R. MULDROW, Appellant, v. Dr. H.B. PINKNEY, Bureau Chief, Bureau of Support Services, Division of Public Schools, Florida Department of Education; Division of Public Schools, Florida Department of Education; Florida Department of Education, Appellees.
    No. AS-364.
    District Court of Appeal of Florida, First District.
    July 29, 1983.

      William R. Muldrow, pro se, for appellant.
    Judith A. Brechner, Gen. Counsel and Gene T. Sellers, Counsel, State Bd. of Educ., Tallahassee, for appellees.
   WIGGINTON, Judge.

This appeal is from the final order of the Commissioner of Education denying appellant’s request for an administrative hearing pursuant to Section 120.57, Florida Statutes. We affirm.

The commissioner properly denied appellant’s request for a Section 120.57 hearing as appellant had failed to pursue and exhaust applicable procedures developed and established by the Department of Education. The commissioner’s order, however, is without prejudice to appellant’s seeking renewal of his request at such later time as is proper.

JOANOS and ZEHMER, JJ., concur.


author: OTT, Chief Judge.

text:
    Gary GAITHER, Appellant, v. STATE of Florida, Appellee.
    No. 82-2229.
    District Court of Appeal of Florida, Second District.
    July 29, 1983.
    Jerry Hill, Public Defender, and Paul C. Helm, Asst. Public Defender, Bartow, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and William I. Munsey, Jr., Asst. Atty. Gen., Tampa, for appellee.
   OTT, Chief Judge.

Count 3 of a five-count information alleged that appellant carried a concealed .25 caliber automatic pistol. Count 5 alleged that while committing a felony appellant carried a concealed firearm, and the information described the same firearm as that described in count 3. Appellant was convicted and sentenced for both crimes.

Because the charging language requires proof of each and every element of count 3 for conviction under count 5, count 3 is a “category 2” lesser-included offense within count 5. See Fla.Std. Jury Instr. (Crim.) Schedule of Lesser Included Offenses, p. 261-62. Principles of double jeopardy preclude convictions and sentences for both offenses. Bell v. State, 437 So.2d 1057 (Fla.1983).

Accordingly, appellant’s conviction and sentence for carrying a concealed weapon are REVERSED.

HOBSON and RYDER, JJ., concur.


author: PER CURIAM. PER CURIAM. ANSTEAD,

text:
    Robert B. SERGE, Appellant, v. Frances A. ROBERTSON a/k/a Frances A. Serge, Appellee.
    No. 82-2273.
    District Court of Appeal of Florida, Fourth District.
    Aug. 3, 1983.
    Rehearing Denied Sept. 6, 1983.
    Claire Cubbin, Fort Lauderdale, for appellant.
    Melanie G. May of Bunnell, Denman & Woulfe, P.A., Fort Lauderdale, for appellee.
   PER CURIAM.

AFFIRMED. See Simon v. Simon, 435 So.2d 941 (Fla. 4th DCA 1983).

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

ON PETITION FOR REHEARING

PER CURIAM.

The appellant’s petition for rehearing is denied.

HERSEY and HURLEY, JJ., concur.

ANSTEAD, C.J., specially concurs with opinion.

ANSTEAD,

Chief Judge, specially concurring:

I agree that appellant’s petition for rehearing should be denied. Pursuant to appellant’s request, consideration and disposition of this case was expedited. Nevertheless, appellant now asserts that this court erred in failing to give him an opportunity to discuss the case of Costa v. Costa, 429 So.2d 1249 (Fla. 4th DCA 1983). While it is true that the case was decided before appellant could file a supplemental brief on Costa it is obvious that both sides have had an adequate opportunity to discuss the case, since the appellee initially cited Costa in a notice of supplemental authority and appellant then fully addressed Costa in his reply brief on appeal. In short, the panel was fully aware of Costa at the time of our decision on the merits. In addition, and for the first time in his petition for rehearing, the appellant complains about the trial court’s failure to fully review the proceedings before the special master before denying appellant’s objections to the master’s findings. This is a clear violation of the rules of appellate practice and procedure. If a party is allowed to inject additional issues on rehearing this court would never be able to conclude appellate proceedings.


text:
    Tony Marvin JOHNSON, a/k/a Michael Scott, Petitioner, v. R.V. TURNER, Superintendent, Glades Correctional Institution; Florida Parole and Probation Commission, et al., Respondents.
    No. 83-1070.
    District Court of Appeal of Florida, Fourth District.
    Aug. 3, 1983.
    Rehearing Denied Sept. 6, 1983.
    Tony Marvin Johnson, pro se.
    Doris E. Jenkins, Asst. Gen. Counsel, Florida Parole and Probation Commission, Tallahassee, for respondents.
   PER CURIAM.

Petitioner seeks review of his presumptive parole release date by this petition for writ of habeas corpus. We treat the petition for writ of habeas corpus as a petition for mandamus directed against the Commission. Moore v. Florida Parole and Probation Commission, 289 So.2d 719 (Fla. 1974), cert. denied, 417 U.S. 935, 94 S.Ct. 2649, 41 L.Ed.2d 239 (1974); Pannier v. Wainwright, 423 So.2d 533 (Fla. 5th DCA 1982); Fla.R.App.P. 9.040(c). We grant the writ of mandamus. The petition alleges that the Commission used an expired sentence in aggregation of petitioner’s PPRD, which is improper. Jordan v. Florida Parole and Probation Commission, 423 So.2d 450 (Fla. 1st DCA 1982). The Commission has failed to file a response to this Court’s order to show cause why relief should not be granted. Therefore, we accept petitioner’s allegation of improper aggregation and order the Commission to recompute his PPRD.

WRIT GRANTED.

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


author: HOBSON, , Acting Chief Judge.

text:
    STATE of Florida, Appellant, v. James JORDAN, a/k/a J.J., Appellee.
    Nos. 82-1137, 82-1138.
    District Court of Appeal of Florida, Second District.
    Aug. 3, 1983.

      Jim Smith, Atty. Gen., Tallahassee, and William E. Taylor, Asst. Atty. Gen., Tampa, for appellant.
    Jerry Hill, Public Defender, Bartow, and Amelia G. Brown, Asst. Public Defender, Tampa, for appellee.
   HOBSON, , Acting Chief Judge.

The state appeals an order which granted defendant James Jordan’s motion to discharge pursuant to Florida Rule of Criminal Procedure 3.191(d)(1) on the ground that he was deprived of, a speedy trial as provided in rule 3.191. We affirm in part, reverse in part, and remand.

Defendant was charged by information with possession of a controlled substance and was arrested on May 18, 1981. The possession charge was nol-prossed and refiled on February 22, 1982, as an information charging him with delivery of cannabis stemming from a transaction that allegedly occurred between May 18 and 19,1981. He and another individual were charged by information filed on October 15, 1981, with conspiring to traffic in cannabis. This charge related'to a transaction that allegedly occurred between May 12 and 15, 1981. Both parties agree that the delivery charge and the conspiracy charge arose from separate transactions.

On November 9,1981, defendant “waived in the interim” the speedy trial period on the conspiracy charge until November 30, 1981. On November 30,1981, the state and codefendant’s counsel announced that they were unable to proceed to trial on the charges. The trial was thus continued until February 9, 1982. On February 9, 1982, at the request of codefendant’s counsel, trial was again rescheduled for February 22, 1982. Because of delays by defendant and defendant’s counsel on February 22, 1982, trial was again continued until May 24, 1982. On May 7,1982, the trial court ruled that the 180-day speedy trial period had substantially run on both charges by November 9,1981, because defendant had been arrested on May 18, 1981.

With respect to the delivery charge, the 180-day speedy trial period commenced on May 18, 1981, the date of defendant’s arrest. See rule 3.191(a)(1) and (4). Thus, since a trial did not begin on the delivery charge within the prescribed time period of 180 days, he was properly discharged on this charge.

As to the conspiracy charge, the 180-day speedy trial period commenced on October 15, 1981, the date the information was filed on the conspiracy charge, inasmuch as defendant had not been previously arrested as a result of the conduct which gave rise to the conspiracy charge. See Snow v. State, 399 So.2d 466 (Fla. 2d DCA 1981). However, the failure to try him within 180 days was not violated because he himself instigated dilatory tactics on February 22, 1982. In Butterworth v. Fluellen, 389 So.2d 968 (Fla.1980), the supreme court recognized that if a codefendant causes a delay or moves for a continuance which results in a trial date outside of the speedy trial time period, he waives the 180-day provision of the speedy trial rule. Moreover, quoting from rule 3.191(d)(3)(ii), “a motion for discharge shall be granted by the court unless it is shown that the failure to hold trial is attributable to the accused, a codefendant in the same trial, or their counsel.” Thus, the court erred in discharging defendant as to the conspiracy charge.

Accordingly, we affirm the portion of the order discharging defendant on the delivery charge, reverse the portion discharging him on the conspiracy charge, and remand with directions that the state be allowed to reinstate the conspiracy charge.

AFFIRMED in PART, REVERSED in PART, and REMANDED.

CAMPBELL and LEHAN, JJ., concur.

      . Florida Rule of Criminal Procedure 3.191(a)(1) provides:

        Speedy Trial Without Demand. Except as otherwise provided by this rule and subject to the limitations imposed under (b)(1) and (c)(2), every person charged with a crime by indictment or information shall without demand be brought to trial within 90 days if the crime charged be a misdemeanor, or within 180 days if the crime charged be a felony, and if not brought to trial within such time shall upon motion timely filed with the court having jurisdiction and served upon the prosecuting attorney be forever discharged from the crime; provided, the court before granting such motion, shall make the required inquiry under (d)(3). The time periods established by this section shall commence when such person is taken into custody as defined under (a)(4) ....
      Rule 3.191(a)(4) reads:

        Custody. For purposes of this rule, a person is taken into custody, (i) when the person is arrested as a result of the conduct or criminal episode which gave rise to the crime charged, or (ii) when the person is served with a notice to appear in lieu of physical arrest.-


author: SHIVERS, Judge.

text:
    Jaunice LINVILLE, d/b/a Stardust Club, Appellant, v. ESCAMBIA COUNTY, a Political Subdivision of the State of Florida; Vince Seely, Sheriff of Escambia County, Florida; and Curtis Golden, State Attorney for the First Judicial Circuit of Florida, Appellees.
    No. AO-313.
    District Court of Appeal of Florida, First District.
    Aug. 3, 1983.
    Rehearing Denied Aug. 31, 1983.

      Charles J. Kahn, Jr., of Levin, Warfield, Middlebrooks, Mabie, Thomas, Mayes & Mitchell, P.A., Pensacola, for appellant.
    Jan J. Hevier, County Atty., Pensacola, for appellees.
   SHIVERS, Judge.

Linville challenges the validity of Escam-bia County Ordinance No. 82-2, which pertains to the regulation and operation of bottle clubs, alleging that the ordinance was invalidly enacted and that the ordinance is constitutionally infirm on several grounds. We agree that the ordinance was invalidly enacted and, therefore, invalidate the ordinance and reverse the order of the trial court upholding the validity of the ordinance.

On review of the record, we find that no notice of intent to consider the challenged ordinance was on file, in a separate book, 15 days before the county commission acted on the ordinance, as required by Section 125.-66(2), Fla.Stat. (1981). On that basis, we declare the ordinance invalid. Since we decide this case on procedural grounds, we do not express any opinion on the constitutional issues presented here for review.

ROBERT P. SMITH, Jr., and WIGGIN-TON, JJ., concur.


text:
    NATIONAL UNION OF HOSPITAL and Health Care Employees, Appellant, v. SOUTHEAST VOLUSIA HOSPITAL DISTRICT, d/b/a Fish Memorial Hospital, and Public Employees Relations Commission, Appellees.
    No. AP-440.
    District Court of Appeal of Florida, First District.
    Aug. 3, 1983.

      Tobe Lev, of Egan, Williams & Lev, Orlando, for appellant.
    C. Todd Alley, of Shackleford, Farrior, Stallings, & Evans, P.A., Tampa, for appel-lee Southeast Volusia Hosp. Dist., d/b/a Fish Memorial Hosp., and H. Lee Cohee, II, Tallahassee, for appellee Public Employees Relations Com’n.
   WIGGINTON, Judge.

National Union of Hospital and Health Care Employees (union) has brought this appeal from that portion of the final order of the Public Employees Relations Commission (commission) awarding attorney’s fees to Southeast Volusia Hospital District (hospital) based on the holding in Christiansburg Garment Company v. EEOC, 434 U.S. 412, 98 S.Ct. 694, 54 L.Ed.2d 648 (1978). We affirm.

On May 5, 1982, Nancy Pittman and the union filed an unfair labor practice charge alleging that the hospital had violated Section 447.501(l)(a) and (b), Florida Statutes (1981), by terminating Pittman’s employment as an operating room technician because of her protected activities on behalf of the union. An evidentiary hearing was conducted by a commission hearing officer, during which all parties had the opportunity to appear, present evidence, and cross-examine witnesses. The hearing officer issued an order recommending that the commission find the hospital had not violated Section 447.501(1), either subsection (a) or (b), by terminating Pittman’s employment. The hearing officer further recommended that the commission order the union to pay to the hospital its costs and reasonable attorney’s fees. Regarding the fees, the hearing officer applied the Christiansburg standard and concluded, “that either [Pittman and the union] brought their charge in bad faith in order to harass the hospital, or their belief that Pittman was discriminated against was ‘unreasonable and groundless’ given what they did know before the hearing about the circumstances giving rise to Pittman’s termination.” The hearing officer continued:

I believe it would not serve the purposes of Chapter 447, Part II, to deny Respondent its reasonable attorney’s fees in a situation where discrimination charges are brought against it by the Union without any real basis or foundation, and where the clearly legitimate basis for the discharge was both obvious on its face and manifestly known by the Union prior to the hearing, and where there is virtually no evidence suggesting that it was a pretext. In making this recommendation I have not overlooked the fact that earlier in this discussion I have expressed the conclusion that the Charging Parties, at the end of the presentation of their case in chief, had established a prima facie violation on the basis of reasonable inferences which could be drawn from the evidence presented up to that point. Even though the Charging Parties were able to technically establish a prima facie violation by the end of their case in chief on the basis of reasonable inferences which could be drawn from the evidence up to that point, the Charging Parties never had reason to believe that such an inference was a correct inference, because they knew that the employer could prove that Pittman had an absenteeism problem of long duration. Where a party knows that there is abundant uncontra-dicted evidence to support one theory of the case and nothing to support the opposite theory but an inference, which inference will only stand in the absence of the full presentation of the evidence, then the party with the burden of proof has no reasonable basis upon which to believe that it would prevail in litigation and, absent such a belief, the party with the burden of proof cannot in good faith commence litigation under such circumstances. This is not a case which turned primarily on credibility and resolutions of diametrically opposed versions of the same story. None of the gut facts in this case were truly disputed and neither of the parties can truly contend that they are surprised by my findings of fact. Such being the case, [Pittman and the union] never had any reason to believe that they would prevail. That they nevertheless ventured forward with their litigation warrants an imposition of an award of attorney’s fees against them.

The commission adopted the recommended order of the hearing officer, agreeing that the charging parties’ allegations should be dismissed. In regard to attorney’s fees, the commission held the award to be appropriate “under the facts and circumstances of this case,” stating, “If the Union did not know the charge was frivolous when it was filed, it should have known so by the time the case was heard,” citing to Christiansburg.

The union has raised four points on appeal for our consideration, which points can be restated in two issues: (1) whether the commission’s conclusion, that the unfair labor practice charge was frivolous, groundless or unreasonable, was based on competent and substantial evidence, particularly where the charging parties made a prima facie case; and (2) whether the commission exercised its discretion consistent with prior agency action, or applied a previously undefined standard so as to deny the union due process.

As to the first issue, we hold that the commission’s conclusion to award attorney’s fees was based on competent and substantial evidence, despite the preliminary finding that the charging parties had made a prima facie case. Their making of a prima facie case merely established a technical inference of discrimination which was overwhelmingly rebutted by the hospital’s demonstrating a legitimate business reason for ending Pittman’s employment, that is, for excessive absenteeism. Pittman had received a number of written and oral warnings regarding her absences. She had signed a statement promising to improve her attendance record as a prerequisite to her rehire. Her absences were documented and unrefuted in the record, and she conceded that none of the written or oral warnings, prior to her termination notice, had anything to do with her union activities. Moreover, there was evidence that the hospital had dismissed other employees for excessive absenteeism. These facts, which were accessible to the union through discovery, bear out the commission’s conclusion that the union knew or should have known of the dearth of evidence of anti-union animus on the hospital’s part, and that the charge was frivolous.

Regarding the second issue, we hold that the commission did not abuse its discretion in awarding attorney’s fees. Section 447.503(6)(c), Florida Statutes (1981), provides:

The commission may award to the prevailing party all or part of the costs of litigation, reasonable attorney’s fees, and expert witness fees whenever the commission determines that such an award is appropriate.

In order to lend substance to this amorphous statutory grant of discretion, the commission in City of Dunedin v. International Association of Fire Fighters, Local 2327, 4 FPER ¶4258 (1978), adopted the standard utilized by the United States Supreme Court regarding prevailing defendants in Title VII civil rights cases. Christiansburg Garment Company v. EEOC. In Christiansburg, the Supreme Court, noting that the basis for awarding attorney’s fees to a successful defendant in a civil rights case differs from that for a successful plaintiff, held that a prevailing defendant is entitled to attorney’s fees where a court finds that the plaintiff’s claim “was frivolous, unreasonable, or groundless, or that the plaintiff continued to litigate after it clearly became so.” 434 U.S. at 422, 98 S.Ct. at 700-701. [Emphasis added]. The court also recognized that should it be found that the plaintiff brought or continued a claim in bad faith, there would be “an even stronger basis for charging him with attorney’s fees incurred by the defense.” Id. However, in applying these criteria, the Supreme Court cautioned the courts against engaging in “post hoc reasoning” by concluding that because a claimant did not ultimately prevail, his action must have been unreasonable or without foundation. Id.

Having adopted the Christiansburg standard in 1978, the commission applied no new or undefined standard in the instant case so as to deprive the union of due process. That the commission has been parsimonious in awarding attorney’s fees to successful respondents in unfair labor practice cases speaks not to inconsistency of action, but rather to uniformity in exercising its discretion in a conscientious, cautious manner. Finally, although the commission awarded fees despite the union having made a prima facie case, it did not engage in “post hoc reasoning.” Rather, as the record demonstrates, the evidence of which the union was or should have been aware, overwhelmingly negated a successful claim; but the union continued to litigate. Under Christiansburg, the union’s unreasonable tenacity was grounds for an award of attorney’s fees. In exercising its discretion toward that end, the commission did not act arbitrarily or outside of the law.

AFFIRMED.

ERVIN, C.J., and THOMPSON, J., concur.


author: PER CURIAM. ROBERT P. SMITH, Jr., Judge,

text:
    Robert L. BEVIER, M.D., Appellant, v. DEPARTMENT OF PROFESSIONAL REGULATION, BOARD OF MEDICAL EXAMINERS, Appellee.
    No. AQ-482.
    District Court of Appeal of Florida, First District.
    Aug. 3, 1983.
    Ned N. Julian, Jr., of Stenstrom, McIntosh, Julian, Colbert & Whigham, P.A., Sanford, for appellant.
    Spiro T. Kypreos, Staff Atty., Dept, of Professional Regulation, Tallahassee, for appellee.
   PER CURIAM.

AFFIRMED.

SHIVERS and NIMMONS, JJ., concur.

ROBERT P. SMITH, Jr., J., specially concurs with opinion.

ROBERT P. SMITH, Jr., Judge,

specially concurring.

I concur in the affirmance and write only to advise counsel and the parties that the court did not casually abandon the concerns expressed at oral argument over the Board’s apparent resort to evidence dehors the charging instrument in characterizing the subject conduct and in setting a penalty. Counsel did not advise us at argument of the colloquy at R. 37-40. Concerning the question of suspension or revocation, the Board’s rule discussed at argument does not appear to pertain to the particular violation charged.


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

text:
    Caprice RODRIGUEZ, Appellant, v. STATE of Florida, Appellee.
    No. 82-227.
    District Court of Appeal of Florida, Fifth District.
    Aug. 4, 1983.
    Rehearing Denied Aug. 29, 1983.

      James B. Gibson, Public Defender, and Michael S. Becker, Asst. Public Defender, and Brian R. Hanson, Certified Legal Intern, Daytona Beach, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Richard W. Prospect, Asst. Atty. Gen., Day-tona Beach, for appellee.
   FRANK D. UPCHURCH, Jr., Judge.

Rodriguez appeals the sentences he received after entering a plea (pursuant to a plea bargain) of no contest to four counts involving separate crimes. The sentences were set to run concurrently, and were within the twenty-five year cap contemplated by the plea bargain. However, the mandatory minimum portions of the three sentences which involved mandatory minimum times were set to run consecutively.

Rodriguez contends that he may be required to serve his sentence either concurrently in full, or consecutively in full, with the other sentences, or anyone of them, but not broken up in such a manner that a portion of the sentence is consecutive while another portion is concurrent in nature. In support of his position, he cites Rozmestor v. State, 381 So.2d 324 (Fla. 5th DCA 1980). We disagree and affirm.

Rodriguez had been charged with eight felonies including sexual battery, robbery and aggravated battery. He agreed to plead to four of the charges if the state would nol pros the remaining four and would recommend a maximum of twenty-five years imprisonment.

Three of the charges, counts III, V and VII, each of which involved the use of a firearm, carried a mandatory minimum sentence of three years. The trial judge obviously desired that Rodriguez serve at least three years on each of those offenses for a total of nine years. If he merely provided that the sentences run concurrently, his plan to have Rodriguez serve three years in prison on each firearm count would be defeated. If he had provided that the firearm counts run consecutively, the mandatory period could not commence until the preceed-ing sentence was concluded thereby preventing Rodriguez from commencing to serve the second sentence until the first sentence was completed which would defeat the twenty-five year cap.

In Rozmestor, the sentence in question provided “the first two years of this sentence shall be served concurrently with any other sentence imposed by any other court, and the remainder of this sentence shall be served consecutively thereto.... ” This court declared that a defendant has a right to serve his sentence by one continuous .period of imprisonment and that deferred sentences “which extend the prison term and/or probation time beyond the maximum time allowed by the statutes for punishment of the particular crime are also invalidated because they have the inherent evil of possibly subjecting a defendant to serving a prison term without regard to ‘the march of the years’.” 381 So.2d at 326. In the instant case, each of the sentences imposed will run continuously. None of the sentences is extended beyond the maximum term allowed by the statutes and none subjects the defendant to a prison term without regard to the “march of years.”

AFFIRMED.

OFRINGER, C.J., concurs.

SHARP, J., dissents with opinion.

SHARP, Judge,

dissenting.

I respectfully dissent in this case because the mandatory and non-mandatory parts of Rodriguez’ three sentences are being broken up and served at different times. In my view, what is concurrent cannot also be consecutive. One of the mandatory periods necessarily will be served first. When the second and third start running down the line, the mandatory parts will clearly have been separated from the non-mandatory parts which started running from the beginning. I would remand for resentencing. Segal v. Wainwright, 304 So.2d 446 (Fla. 1974); Bozmestor v. State, 381 So.2d 324 (Fla. 5th DCA 1980).

      . The defendant was convicted and sentenced on the following counts:
      Count III, aggravated battery, fifteen years imprisonment, three years mandatory minimum;
      Count V, aggravated battery, fifteen years imprisonment, three years mandatory minimum;
      Count VII, armed robbery, twenty-five years imprisonment, three years mandatory minimum; and
      Count VIII, grand theft, five years imprisonment.

      . The sentences imposed read:
      Count III: 15 yrs concurrent to Count VII; 3 yr. minimum mandatory to run consecutive to 3 yr. minimum mandatory in Count VII. Count V: 15 yrs concurrent to Count VII; 3 yr. minimum mandatory to run consecutive to 3 yr. minimum mandatory in Count III. Count VIII: to run Concurrent with Count VII.


text:
    BOARD OF COUNTY COMMISSIONERS OF MARION COUNTY, Florida, and the Department of Revenue of the State of Florida, Appellants, v. John P. McKEEVER, Appellee.
    No. 82-1758.
    District Court of Appeal of Florida, Fifth District.
    Aug. 4, 1983.
    Rehearing Denied Aug. 29, 1983.

      Mare B. Cohen, Sp. Asst. County Atty., of O’Neill, Cornelius, Everett & Cohen, P.A., Ocala, and L. Michael Milbrath, County Atty. for Marion County, Fla., Ocala, for appellant Bd. of County Com’rs of Marion County.
    Jim Smith, Atty. Gen., and Thomas L. Barnhart, Asst. Atty. Gen., Dept, of Legal Affairs, Tallahassee, for appellant Dept, of Revenue, State of Fla.
    John P. McKeever, Ocala, pro se.
   FRANK D. UPCHURCH, Jr., Judge.

Appellants appeal from a summary final judgment holding that Marion County Ordinance 82-22 is unconstitutional. This ordinance, which was enacted on November 9, 1982, by the Board of County Commissioners, following approval in a referendum, provides as follows:

AN ORDINANCE PROVIDING FOR AN ADDITIONAL ONE CENT TAX UPON EVERY GALLON OF MOTOR FUEL AND SPECIAL FUEL SOLD IN MARION COUNTY; PROVIDING FOR AN ADDITIONAL ONE CENT TAX UPON EVERY GALLON OF MOTOR FUEL AND SPECIAL FUEL SOLD IN MARION COUNTY; PROVIDING FOR THE PERIOD OF TIME SAID ADDITIONAL TAX ON MOTOR FUEL AND SPECIAL FUEL IS TO BE IN EFFECT; PROVIDING FOR A SEVERABILITY CLAUSE; AND PROVIDING FOR AN EFFECTIVE DATE.
BE IT ORDAINED by the Board of County Commissioners of Marion County, Florida, that:
SECTION I: ESTABLISHMENT OF AN ADDITIONAL ONE CENT TAX UPON EVERY GALLON OF MOTOR FUEL AND SPECIAL FUEL SOLD IN MARION COUNTY.
A one cent tax upon every gallon of motor fuel and special fuel sold in Marion County is hereby imposed in addition to other taxes required by law for the purpose of paying the cost of acquisition, construction, reconstruction, maintenance, and drainage of roads and streets. SECTION II: ESTABLISHMENT OF TIME PERIOD ADDITIONAL ONE CENT TAX SHALL BE IN EFFECT The additional one cent tax upon every gallon of motor fuel and special fuel sold in Marion County as established in Section I above shall remain in effect for a period not to exceed ten (10) years from the effective date of this ordinance. A cap of .25 mills of ad valorem taxes for the County Transportation Trust Fund shall be in effect during the period for which the additional one cent tax upon every gallon of motor fuel and special fuel sold in Marion County remains in effect.

The ordinance included a severability clause and was to become effective on January 1, 1983. It was enacted pursuant to section 336.021, Florida Statutes (1981), which permits counties, subject to a referendum, to impose a one cent gas tax on fuel sold in the county for the purpose of constructing and maintaining roads and streets.

On November 10,1982, appellee McKeever sued for declaratory and injunctive relief claiming that the ordinance is unconstitutional because, among other things, appellant Board improperly imposed a limit on the millage which may be levied for the County Transportation Trust Fund (CTTF) in future years. The trial court agreed and entered summary judgment against appellants.

We conclude that the trial court was correct and that the Board acted unconstitutionally in imposing the millage cap on ad valorem taxes for a period of up to ten years.

Marion County is a non-charter county, which under Article VIII, section 1(f), Florida Constitution, has “such power of self-government as is provided by general or special law” and may enact “county ordinances not inconsistent with general or special law.” In Speer v. Olson, 367 So.2d 207 (Fla.1978), however, the supreme court, in considering the powers of non-charter counties in light of section 125.01, Florida Statutes, observed:

The first sentence of section 125.01(1), Florida Statutes (1975), grants to the governing body of a county the full power to carry on county government. Unless the legislature has pre-empted a particular subject relating to county government by either general or special law, the county governing body, by reason of this sentence, has full authority to act through the exercise of home rule power.

367 So.2d at 211.

Therefore, in the instant case, Marion County had the power to enact Ordinance 82-22 so long as it is not inconsistent with general or special law. The trial court found that the ordinance (or more particularly the millage cap) was in conflict with general law regarding the formation of county budgets (Chapter 129, Florida Statutes (1981)) and the determination of ad valorem tax millages (Chapter 200, Florida Statutes (1981)). The court further found that because the millage cap would be effective for ten years, it would impermissibly bind successor commissions with respect to the taxing power.

An ordinance is inconsistent or conflicts with general law if the ordinance and the legislative provision cannot co-exist. Board of County Commissioners of Dade County v. Wilson, 386 So.2d 556 (Fla.1980). In that case, the supreme court found that an ordinance which would set Dade County’s millage rate through the initiative process was in direct conflict with section 200.191, Florida Statutes which provided the exclusive manner for setting county-wide millage rates. The instant case differs in that here we deal with a millage cap (of a ten-year duration) applicable to one of the county’s funds, the County Transportation Trust Fund, as opposed to a provision setting the county millage at a certain rate.

Chapter 129, Florida Statutes, establishes a budget system for county governments and mandates that the county commission prepare, approve, adopt and execute “for each fiscal year” an annual budget “for such funds as may be required by law or by sound financial practices and generally accepted accounting principles.” § 129.01(1), Fla.Stat. This budget controls “the levy of taxes and the expenditure of money for all county purposes during the ensuing fiscal year.” Id.

Section 129.011(1), which permits consolidation of separate budgetary funds into a single general fund, contains the following exception for the County Transportation Trust Fund:

[T]he road and bridge tax shall be levied under s.336.59 and all revenue and expenditures of the county transportation trust fund established pursuant to s.339.-083 shall be shown as a separate budgetary fund.

Section 129.02(2) provides in relevant part that:

The County Transportation Trust Fund budget shall contain an estimate of receipts by source ... and an itemized estimate of expenditures that need to be incurred to carry on all work on roads and bridges in the county....

Finally, chapter 129 requires that the county, in preparing its tentative budgets, estimate for each budget the proposed tax millages, balances, reserves, receipts and expenditures. After the tentative budget has been prepared, the county must advertise and hold public hearings thereon prior to adoption. §§ 129.03(3); 200.065(2)(d), Fla.Stat. (1981). There is, however, currently no specific requirement in chapter 129 that the Board annually set the millage rate for the County Transportation Trust Fund.

Chapter 200, entitled “Determination of Millage” provides that the county commission “shall determine the amount to be raised for all county purposes” and “the rates to be levied for each fund.” § 200.-011, Fla.Stat. (1981). One of these funds is the County Transportation Trust Fund which each county is required to establish and maintain and which is solely for transportation related revenues and expenditures. § 339.083(1), Fla.Stat. (1981). Chapter 336, Florida Statutes, requires that the commission levy a tax “on all property in their county each year for road and bridge purposes,” § 336.59, Fla.Stat. (1981), and these proceeds must be included in the Trust Fund. 1979 Op.Att’y Gen. Fla. 79-41.

Under section 200.065(2), Florida Statutes (1981), following preparation of a tentative budget, “each taxing authority shall compute a proposed millage rate necessary to fund the tentative budget.” Thereafter, “the governing body of each taxing authority shall hold a public hearing on the tentative budget and proposed millage rate.” After adopting a tentative budget, the taxing authority must give notice of its intent to finally adopt a millage rate and budget and after an opportunity to be heard is provided to the citizenry, may adopt a resolution or ordinance finally setting the millage rate.

We believe that this statutory scheme contemplates the annual preparation and adoption of a budget and the fixing of millage rates. § 129.01(1), Fla.Stat. (1981). The county commission is required to annually “determine the amount to be raised for all county purposes” and “the rates to be levied for each fund,” section 200.011, including the County Transportation Trust Fund. To conclude otherwise would allow one county commission to conceivably bind future commissions in the exercise of their prerogative under the state constitution to levy a millage of up to ten mills for all county purposes. Art. VII, § 9(b), Fla.Const. The instant case provides a perfect example of this danger. Marion County has by referendum, obtained the approval of voters to place a ten-year cap on the millage rate for the Transportation Trust Fund. In order for a future commission to levy a millage for the Fund in excess of the cap, it would have to ask the voters to repeal the cap. Should the voters reject such a request, the commission not only would find its prerogative under the state constitution curtailed but it could face serious problems in financing necessary road improvements and maintenance. We think that the principle set out in Straughn v. Camp, 293 So.2d 689 (Fla.1974), to the effect that one legislative body cannot bind its successors with respect to the exercise of the taxing power, applies here and requires invalidation of the millage cap.

The county argues that the voters of Marion County could have adopted the millage cap as an exercise of their sovereign power. However, the mere fact that the voters approved the cap is of little relevance since if it conflicts with general law, it cannot stand. See Board of County Commissioners of Dade County v. Wilson (electors of Dade County could not adopt ordinance fixing millage rate where such procedure would conflict with general law).

Finally, we conclude that the sever-ability clause cannot save this enactment. The voters approved Ordinance 82-22 as it was presented to them. The County cannot retain the “stick” (the fuel tax) if the voters are forced to give up the “carrot” (the millage cap on property taxes).

AFFIRMED.

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

      . Section 125.01(1), provides that:
      The legislative and governing body of a county shall have the power to carry on county government. To the extent not inconsistent with general or special law, this power shall include, but shall not be restricted to, the power to...

      . Neither party contends that there is any special law applicable here which would be inconsistent with the ordinance.

      . Section 129.05, Florida Statutes (1979), which was repealed in 1980, had provided that “after the final adoption of the budget for each fund, the board shall proceed to fix the millage rate for each fund as provided by law.”

      . See City of Orlando v. County of Orange, 276 So.2d 41 (Fla. 1973) (holding that this levy is mandatory but noting that the legislature has not set any minimum millage for this purpose).

      . The county’s argument on this point would actually be strengthened if this case did not involve a referendum since then a future commission could merely vote to rescind the ordinance should events in the future warrant such action. See Alterman Transport Lines, Inc. v. State, 405 So.2d 456, 460 (Fla. 1st DCA 1981).


text:
    Edgar C. PLATEL, Appellant, v. MAGUIRE, VOORHIS & WELLS, P.A., et al., Appellees.
    No. 83-294.
    District Court of Appeal of Florida, Fifth District.
    Aug. 4, 1983.
    Edgar C. Platel, in pro. per.
    No Appearance for appellees.
   ON RULE TO SHOW CAUSE

EN BANC.

On June 15 this Court served Edgar C. Platel, the appellant herein, with a Rule to Show Cause, which reads as follows:

Edgar C. Platel has filed a Notice of Appeal from an order awarding to the defendants attorney’s fees and costs pursuant to section 57.105, Florida Statutes (1981). The trial court had previously rendered an order dismissing with prejudice Platel’s complaint against the defendant. Mr. Platel appealed from this order; however, pursuant to a motion to dismiss the appeal as a sham, this Court dismissed that appeal.
In the past fourteen months, Mr. Platel has filed nine notices of appeal in connection with several civil actions. These actions stem from a dispute between Mr. Platel and Maronda Homes, Inc., over a house which he purchased from the company. In some instances, Mr. Platel has sued judges who have issued adverse rulings. In connection with these several appeals, Mr. Platel has filed a plethora of motions which have included “Notices of Supplemental Authority” amounting simply to factual arguments, a “Request for Jury Trial,” and a “Memorandum of Law, Evidence of His Ability to File Law Suits,” wherein Mr. Platel attached several form letters addressed to himself from politicians.
The consequence of Mr. Platel’s litigious disposition and apparent lack of legal training is that this court has been inundated with voluminous and, for the most part, incomprehensible documents from him. This court has spent an unreasonable amount of time and effort attempting to decipher his pleadings, often with no success.
This court recognizes the constitutional mandate that courts be open to all persons under Article I, § 21, Florida Constitution. Because the judicial process is the recognized dispute-settlement method, access to courts should not be placed beyond the reach of any citizen. However, when one person, by his activities, upsets the normal procedure of the court so as to interfere with the causes of other litigants, it is necessary to exercise restraint upon that person, i.e., requirement that pleadings be accompanied by an attorney’s signature — a restraint which does not amount to a complete denial of access. Shotkin v. Cohen, 163 So.2d 330 (Fla. 3d DCA 1964).
It is therefore ORDERED and ADJUDGED as follows:
That Edgar C. Platel shall file with this Court and show cause, within twenty days from the date of this order in writing, why he should not be prohibited from henceforth appearing before this Court in propria persona as an appellant or a petitioner in this and other pending causes or as an appellant or a petitioner in any future cases.

Mr. Platel’s response evinces the necessity for the issuance of this Order. First, Mr. Platel alleges that, under section 59.06, Florida Statutes (1981), this court has no jurisdiction to prohibit him from exercising his right to appeal. It should be noted that this provision pertains only to matters which may be assigned as error on appeal and the effect of pleading over or amending pleadings on the right to have the judgment or order reviewed. Next, he presents a legitimate legal argument. Mr. Platel maintains that this Order would violate his rights under the First, Fifth and Fourteenth Amendments to the United States Constitution; that is, his rights to petition the government for redress of grievances and of due process of law. Mr. Platel goes on to allege that our Order would violate 28 U.S.C. § 2101, 28 U.S.C. § 2103, 28 U.S.C. § 2104 and 28 U.S.C. § 1915. However, none of these statutes is relevant to whether Mr. Platel should be allowed to continue to proceed pro se in this court. The remainder of Mr. Platel’s response contains arguments regarding the merits of his various cases before this court.

We do not condemn all of Mr. Platel’s causes as frivolous. In fact, we issued an opinion favorable to him in Platel v. Maronda Homes, Inc. of Florida, 423 So.2d 627 (Fla. 5th DCA 1982) (wherein this court reversed a final summary judgment entered against Mr. Platel). However, Mr. Platel has abused his pro se right of access to our court so as to interfere with the effective administration of justice in this court. Therefore, in the exercise of our inherent power to prevent abuse of court procedure, it is ORDERED that Edgar C. Platel is prohibited from henceforth appearing in his own behalf in this court in this or other causes, as an appellant, wherein he is the plaintiff in the trial court, or as a petitioner. However, this order shall not prohibit Edgar C. Platel from representing himself in this court in connection with an appeal of this order, or in any action in this court in which he is either an appellee or a respondent.

IT IS SO ORDERED.

ORFINGER, C.J., and DAUKSCH, COBB, FRANK D. UPCHURCH, Jr., SHARP and COWART, JJ., concur.

       Section 57.105, Florida Statutes (1981), provides:
      Attorney’s Fees. — The court shall award a reasonable attorney’s fee to the prevailing party in any civil action in which the court finds that there was a complete absence of a justiciable issue of either law or fact raised by the losing party.

       Case Nos. 83-758; 83-712; 83-294; 83-49; 82-1779; 82-1583; 82-1416; 82-1401; 82-338.

      . 28 U.S.C. § 2101 pertains to the time for appeal or certiorari in the United States Supreme Court, docketing and stays. 28 U.S.C. § 2103 provides that the United States Supreme Court treat as a petition for writ of certiorari an appeal from a state court or from a United States Court of Appeal improvidently taken. 28 U.S.C. § 2104 states that the United States Supreme Court shall regard an appeal from a state court in the same manner and under the same regulations and give the same effect to it as if the judgment or decree appealed from had been rendered in a United States court. 28 U.S.C. § 1915 provides that where a person makes affidavit that he is unable to pay costs, a federal court is authorized to commence a suit without prepayment of fees and costs, or to direct the government to pay the expense of printing a record on appeal. This provision also provides that an appeal may not be taken in forma pauperis if the trial court certifies in writing that it is not taken in good faith. Finally, under this provision a federal court may request an attorney to represent any such person unable to employ counsel or may dismiss the case if the allegation of poverty is untrue, or if satisfied that the action is frivolous or malicious.

      . Ray v. Williams, 55 Fla. 723, 46 So. 158 (1908); Shotkin v. Cohen, 163 So.2d 330 (Fla. 3d DCA 1964).