author: DANIEL S. PEARSON, Judge. SCHWARTZ, Chief Judge

text:
    METROPOLITAN DADE COUNTY, by and through its Mayor and Board of County Commissioners, Appellant, v. RESOURCES RECOVERY (DADE COUNTY) CONSTRUCTION CORP., a Delaware corporation, Resources Recovery (Dade County), Inc., a New York corporation, and Parsons & Whittemore, Inc., a Delaware corporation, Appellees.
    No. 84-2263.
    District Court of Appeal of Florida, Third District.
    Jan. 15, 1985.
    Greenberg, Traurig, Askew, Hoffman, Lipoff, Rosen & Quentel and David L. Ross and Hilarie Bass, Miami, for appellant.
    Thomson, Zeder, Bohrer, Werth, Adorno & Razook and Parker D. Thomson and Susan H. Aprill and Carol A. Licko, Miami, Wilmer, Cutler & Pickering and Deanne C. Siemer, Washington, D.C., for appellees.
    Before SCHWARTZ, C.J., and NESBITT and DANIEL S. PEARSON, JJ.
   DANIEL S. PEARSON, Judge.

In 1976, the parties entered into three contracts that collectively provided for the construction and operation of a massive resource recovery and solid waste processing facility. Each of the contracts provided for arbitration of disputes.

By early 1981, substantial disputes had arisen, and the arbitration machinery was invoked. After some twenty-seven months, the numerous claims and counterclaims were resolved, at least for the moment, by a thirty-four page Arbitration Award (the Award), entered on a split decision of the panel of three arbitrators.

The Award, as the dissenter on the panel observed, was unusual: it reformed the contracts between the parties and delegated to them different rights and obligations. The parties revised the Award (the Revised Award) and agreed that, as revised, it would be confirmed and made a judgment of the Circuit Court of Dade County. By March 1983, this was done.

In August 1984, the appellees filed a new arbitration demand against Metropolitan Dade County. In their demand, they sought a declaration that the County had not used its “best efforts” to arrange to complete the purchase of the electrical generating facility through the sale of bonds or otherwise (as required by the Assumption Agreement, see n. 1, supra, as reformed by the Revised Award) and the further relief of specific performance and damages. The County moved to stay arbitration, contending that the Revised Award did away with the Assumption Agreement and, concomitantly, the arbitration clause contained in that agreement. The appel-lees, claiming that their contractual right to arbitration was unaffected by the later Revised Award, say that only substantive provisions of the Assumption Agreement were deleted by the Revised Award and that all provisions of the Assumption Agreement not inconsistent with the Revised Award remain intact.

It is apparent that the language of the Revised Award, the agreement at issue, is seriously disputed and reasonably susceptible to different constructions. Where such is the case, an issue of fact as to the meaning of the language and the intent of the parties is presented. See Seaboard Coast Line Railroad Company v. Trailer Train Company, 690 F.2d 1343 (11th Cir.1982); Quayside Associates, Ltd. v. Harbour Club Villas Condominium Association, Inc., 419 So.2d 678 (Fla. 3d DCA 1982). See also Hoffman v. Terry, 397 So.2d 1184 (Fla. 3d DCA 1981) (where disputed contract provision reasonably susceptible to more than one construction, factual issue as to meaning of provision properly submitted to jury for resolution). That issue of fact can only be resolved after an evidentiary hearing. Merrill, Lynch, Pierce, Fenner & Smith, Inc. v. Melamed, 425 So.2d 127 (Fla. 4th DCA 1982).

While it is true that at the hearing on the County’s motion to stay, which culminated in the trial court denying the stay and permitting the matter to proceed to arbitration, the facts and circumstances surrounding the creation of the Revised Award were aired in a discussion by counsel for the parties, there is no indication that the parties believed their discussion to be a proffer of or stipulation to facts so as to make the hearing an evidentiary one. Therefore, the trial court’s ruling denying the stay of arbitration, because made without the benefit of a factual determination that the parties intended when they created the Revised Award to continue in effect the right to arbitrate all disputes, is premature. The order under review is reversed, and the cause is remanded for further proceedings to determine the intent of the parties.

Reversed and remanded.

SCHWARTZ, Chief Judge

(dissenting).

In my judgment, the present controversy does not, as the majority thinks, concern the provisions of an agreement between the parties but rather the terms of an arbitration award resolving a previous contractual dispute, which was, in settling a challenge to the award, incorporated into an order of court. As such, I believe that, as a matter of law, the conflicting contentions over its meaning may be resolved only by the entity which promulgated what the parties are now arguing about, the court itself. As section 682.15, Florida Statutes (1983) provides:

Upon the granting of an order confirming, modifying or correcting an award, the judgment or decree shall be entered in conformity therewith and be enforced as any other judgment or decree.

Accord, 9 U.S.C. § 13; see also, Brandt v. Lawson Associates, 21 Misc.2d 1011, 196 N.Y.S.2d 835 (Sup.Ct.1960); M. Domke, Domke on Commercial Arbitration §§ 37:00, 39:02 (Rev.ed.1984). Because I find no basis for ordering an arbitration to decide the effect of a judgment merely because it reflects the result of a previous arbitration, I would reverse the determination below outright with directions that the existing dispute be resolved by the trial court.

      . The contracts were: (1) an Assumption Agreement under which Resources Recovery (Dade County) Construction Corp. (R.R.D.C.) assumed the County’s contractual obligation to construct an electrical generating facility, the title to which was to be ultimately conveyed to Florida Power and Light Company; (2) a Purchase Contract under which R.R.D.C. was to construct for the County a solid waste processing and resources recovery facility; and (3) a Management Contract covering the management by one of the appellees of the latter facility.

      . The dissent perceived the role of arbitrators to be limited to assessing damages and stated that "... an arbitration panel has no power to rewrite contracts that exist between two parties."

      . The trial court ruled that the question of whether the issue was arbitrable was a question to be decided by the arbitrators, but if it were one for the court, arbitration would be compelled. Whether this question is for the court or the arbitrators depends on whether the party seeking the stay is asserting that no arbitration clause exists or asserting that a concededly extant arbitration clause is not in force and effect due to events which have transpired since the making of the contract. In the former instance, the question is for the court, see Post Tensioned Engineering Corp. v. Fairways Plaza Associates, 412 So.2d 871 (Fla. 3d DCA 1982); in the latter, for the arbitrators, see Gersh v. Concept House, Inc., 291 So.2d 258 (Fla. 3d DCA 1974). Since in the present case it is urged that the Revised Award constitutes the sole contract between the parties and that such Revised Award does not provide for arbitration, the determination is for the court.


source: Caselaw Access Project

author: DOWNEY, Judge.

license: Public Domain

text:
    Vernon BASS, Appellant, v. STATE of Florida, Appellee.
    No. 84-654.
    District Court of Appeal of Florida, Fourth District.
    Jan. 16, 1985.
    Rehearing and Certification of Conflict Denied Feb. 13, 1985.
    Richard L. Jorandby, Public Defender, and Tatjana Ostapoff, Asst. Public Defender, West Palm Beach, for appellant.
    Jim Smith, Attorney Gen., Tallahassee, and Richard G. Bartmon, Asst. Atty. Gen., West Palm Beach, for appellee.
   DOWNEY, Judge.

This is a timely appeal from a judgment of conviction and sentence of 364 days in jail, to be followed by ten years of probation, for the offense of grand theft, in violation of section 812.014(2)(a), Florida Statutes.

The appellant was charged by information with grand theft of more than $20,000 worth of citrus fruit from the Hubert Graves Packing Company, Inc. Pursuant to plea negotiations, the appellant pleaded nolo contendere to the charge, on the understanding that another information charging grand theft from Vero Citrus Sales, Inc., would be nolle prossed.

The appellant was adjudicated guilty and sentenced to serve 364 days in the county jail, to be followed by ten years of probation, during which time he was to make restitution of $109,042.26 to Hubert Graves Packing Company and $94,179.77 to the grove, Vero Citrus Sales, Inc., (the victim in the nolle prossed case) at a rate of no less than $1,200 per year.

This appeal was perfected to review the trial court’s order requiring, as a condition of probation, that appellant make restitution to Vero Citrus Sales, Inc., the victim in the case that was nolle prossed as a part of the plea bargain. Appellant contends that restitution should relate only to the specific crime for which he was convicted and that crime involved only Hubert Graves Packing Company.

Restitution to Vero Citrus Sales, Inc., was not part of the plea bargain. In fact at the time the plea was presented to the court appellant’s attorney advised the court that the State was not seeking restitution in the Vero Citrus case because it was the subject of civil litigation. It appears the trial judge simply decided to require restitution for the nolle prossed case also.

We held in Crowder v. State, 334 So.2d 819 (Fla. 4th DCA 1976) that requiring restitution for an unrelated case would only be appropriate if the defendant acknowledged the theft and agreed to make restitution, all as part of the plea bargain. Absent such acknowledgment and consent the cases, including our own, seem to hold the court is precluded from requiring restitution for other cases or counts which have been nolle prossed. See also W.N. v. State, 426 So.2d 1206 (Fla. 4th DCA 1983).

Accordingly, the condition of probation requiring restitution to Vero Citrus Sales, Inc., is reversed and the trial court is directed to eliminate it from the conditions of probation imposed.

HURLEY and WALDEN, JJ., concur.


author: PER CURIAM.

text:
    James Marion MOORMAN, Public Defender, Tenth Judicial Circuit, and Joseph Wade Nelson, Petitioners, v. Honorable Edward F. THREADGILL, Jr., Circuit Judge, Polk County, Respondent.
    No. 85-91.
    District Court of Appeal of Florida, Second District.
    Jan. 18, 1985.

      James Marion Moorman, Public Defender, and Thomas A. Munkittrick, Jr., Asst. Public Defender, Bartow, for petitioners.
    Jim Smith, Atty. Gen., Tallahassee, and Theda James Davis, Asst. Atty. Gen., Tampa, for respondent.
   PER CURIAM.

It appearing from the unrefuted allegations of the Petitioner Public Defender that Petitioner Nelson will be prevented from pursuing plea negotiations requested by him because of information he desires to disclose that may be detrimental to another client of the Public Defender, certiorari is granted.

While the state contends that no actual conflict has been demonstrated, in this case, the very possibility of conflict is preventing the Public Defender from adequately representing either client. Furthermore, to describe the actual matters which cause the possible conflict would, according to the allegations of the Public Defender, violate the attorney-client privilege. In such circumstances, the representations of the Public Defender must be accepted. This then presents a classic situation for the application of Turner v. State, 340 So.2d 132 (Fla. 2d DCA 1976), where the Public Defender is placed in the circumstance of representing two antagonistic defendants and is called on by one to reveal possible harmful information about the other.

Certiorari is granted, and the order of the trial court denying withdrawal of counsel for conflict of interest is quashed.

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


author: SCHWARTZ, Chief Judge.

text:
    Charles ADDERLY, Appellant, v. The STATE of Florida, Appellee.
    No. 83-3025.
    District Court of Appeal of Florida, Third District.
    Jan. 22, 1985.
    Bennett H. Brummer, Public Defender and Thomas G. Murray, Miami, for appellant.
    Jim Smith, Atty. Gen. and Julie S. Thornton, Asst. Atty. Gen., for appellee.
    Before SCHWARTZ, C.J., and HUB-BART and JORGENSON, JJ.
   SCHWARTZ, Chief Judge.

The appellant pled nolo to a charge of theft of a motor vehicle, reserving the present challenge to the denial of his sworn motion to dismiss under Fla.R.Crim.P. 3.190(c)(4). We affirm.

Two policemen found Adderly sleeping on the back seat of an automobile which had been recently taken from its owner, Metropolitan Dade County. On the rear floorboard, they discovered his hat and, next to it, the keys to the vehicle. The presence of those keys established that Adderly was in control and therefore in possession of the car itself, see Shank v. State, 154 Ind.App. 147, 289 N.E.2d 315 (1972); cf. Wells v. State, 613 P.2d 201 (Wyo.1980), and thus raised the inference of guilty knowledge that the car was stolen created by sec. 812.022(2), Fla.Stat. (1983). It also, and simultaneously, refuted the explanation offered to the officer by Adderly — that he had innocently crawled into an abandoned car looking for a place to sleep — so as to render the believability of that claim and the question of whether the statutory inference had been overcome for the trier of fact. State v. Graham, 238 So.2d 618 (Fla.1970); P.N. v. State, 443 So.2d 193 (Fla. 3d DCA 1983); State v. Fox, 404 So.2d 799 (Fla. 3d DCA 1981). The (c)(4) motion was therefore properly denied.

Affirmed.

      . We need not decide, therefore, whether mere presence in the back seat of an otherwise unoccupied car amounts to possession.

      . Compare R.A.L. v. State, 402 So.2d 1337 (Fla. 3d DCA 1981) (inference conclusively overcome by "unrefuted, exculpatory, and not unreasonable" explanation of possession).


text:
    Serena KING, f/k/a Serena Marie Antonowicz, Appellant, v. Edmund ANTONOWICZ, Appellee.
    No. 84-506.
    District Court of Appeal of Florida, Third District.
    Jan. 22, 1985.
    Michael Lechtman, North Miami Beach, for appellant.
    Holden & Holden, P.A., and Francis E. Holden, Jr., Hialeah, for appellee.
    Before SCHWARTZ, C.J., and HUB-BART and JORGENSON, JJ.
   PER CURIAM.

At the time the trial court entered its order amending the final judgment of dissolution, thereby granting the husband an equitable distribution of proceeds from any future sale of the marital residence, there was no pending motion and, therefore, the court lacked jurisdiction to do so. For that reason, we now vacate the amended final judgment and remand with directions to reinstate the final judgment.

Reversed and remanded with directions.

      . Even if the order amending final judgment were, indeed, valid, the wife would be entitled, nonetheless, to credit for the monies she expended over fifteen years for mortgage payments, taxes, maintenance, and upkeep of the house, an amount which undoubtedly offsets any equity which the husband now claims in the house.


text:
    The STATE of Florida, Petitioner, v. Josey Wales BALBOA, Respondent.
    No. 84-2505.
    District Court of Appeal of Florida, Third District.
    Jan. 22, 1985.
    Jim Smith, Atty. Gen. and Julie S. Thornton, Asst. Atty. Gen., for petitioner.
    Bennett H. Brummer, Public Defender and Rory S. Stein, Asst. Public Defender, for respondent.
    Before SCHWARTZ, C.J., and HENDRY and DANIEL S. PEARSON, JJ.
   DANIEL S. PEARSON, Judge.

The State’s petition for writ of certiorari is granted, and the order prohibiting the State from presenting the testimony of witnesses Dennis Lambert and Robert Underwood is quashed.

In an earlier appearance of this case, this court reversed the defendant’s conviction upon a holding that the State’s failure to furnish the defendant with tape recorded statements of these witnesses triggered the necessity for a Richardson hearing, and, none having been held, reversal was required. See Balboa v. State, 446 So.2d 1134 (Fla. 3d DCA 1984). This court’s opinion pointed out, without further explanation, that the trial judge “relied upon representations by the prosecutor concerning the content of the tapes.” 446 So.2d at 1135.

After the case was remanded, it was learned that the tape recordings could not be found. The trial judge accordingly conducted a Richardson hearing at which the prosecuting attorney testified that the loss of the tapes was inadvertent and “that the statements of witnesses recorded on said tapes was no different than testimony given on depositions or at trial by the same witnesses.” Although the prosecutor’s undisputed testimony may have persuaded the trial judge that the defendant suffered no prejudice from the discovery violation, the trial judge believed that this court’s earlier opinion precluded him from relying on the prosecutor’s representations concerning the content of the tapes.

In our view, the trial judge misconstrued this court’s opinion. Reliance upon the prosecutor’s representations concerning the tapes was there condemned only because those representations were received as a substitute for the required Richardson hearing. The opinion did not preclude the trial judge from fully considering these same representations, in the form of the prosecutor’s testimony, at an adversary Richardson hearing. Since the trial judge did not consider this clearly admissible testimony, we quash the order under review with directions that the trial judge determine from all the evidence, including the prosecutor’s testimony, whether the defendant is prejudiced by the discovery violation.

Certiorari granted; order quashed, with directions.

HENDRY, J., dissents.

SCHWARTZ, Chief Judge

(specially concurring).

I have already expressed and now repeat my extreme doubts about the correctness of the determination in State v. Steinbrecher, 409 So.2d 510 (Fla. 3d DCA 1982) that, as a general rule, certiorari lies at the state’s behest to review non-final orders in criminal prosecutions. State v. Whitehead, 443 So.2d 196 (Fla. 3d DCA 1983) (Schwartz, C.J., specially concurring); State v. C.C., 449 So.2d 280, 282 n. 7 (Fla. 3d DCA 1983) (Schwartz, C.J., specially concurring).

Apart from being bound by this conclusion notwithstanding my disagreement with it, State v. Whitehead, supra, I concur in the consideration of the present petition because the order below involves a claimed —and, as we hold, actual — departure from our prior mandate in this cause. Such a contention is clearly properly resolved by certiorari. E.g., Jones v. Knuck, 388 So.2d 328 (Fla. 3d DCA 1980).

On the merits, I fully agree with Judge Pearson’s opinion.

      . In appropriate cases, such a claim may also be reviewable by prohibition, Robbins v. Pfeiffer, 407 So.2d 1016 (Fla. 5th DCA 1981), mandamus, motion for enforcement, Stuart v. Hertz Corp., 381 So.2d 1161 (Fla. 4th DCA 1980), or appeal. Goodner v. Shapiro, 367 So.2d 1110 (Fla. 3d DCA 1979).


text:
    Westley Bee WILLIAMS, Appellant, v. STATE of Florida, Appellee.
    No. 83-1381.
    District Court of Appeal of Florida, Fourth District.
    Jan. 23, 1985.
    Richard L. Jorandby, Public Defender, and Stephen W. Benedict, Asst. Public Defender, West Palm Beach, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Sarah B. Mayer, Asst. Atty. Gen., West Palm Beach, for appellee.
   PER CURIAM.

Defendant, charged with attempted first-degree murder, was found guilty of attempted second-degree murder. He claims that the trial court committed reversible error by declining to instruct the jury on the crime of attempted third-degree murder. We agree.

It is now well-settled that the crime of attempted third-degree murder exists in Florida. See State v. Overfelt, 457 So.2d 1385 (Fla.1984); Gentry v. State, 437 So.2d 1097 (Fla.1983). It is equally well-settled that “the failure to instruct on the next immediate lesser-included offense (one step removed) constitutes error that is per se reversible.” State v. Abreau, 363 So.2d 1063 (Fla.1978). Thus, the trial court’s refusal to instruct on attempted third-degree murder, the next immediate lesser-included offense to the crime of attempted second-degree murder, requires reversal of defendant’s conviction and sentence for the crime of attempted second-degree murder.

REVERSED and REMANDED for NEW TRIAL.

LETTS, HURLEY and DELL, JJ., concur.


author: PER CURIAM. GLICKSTEIN, Judge,

text:
    FLORIDA STEEL CORPORATION, Appellant/Cross Appellee, v. ADAPTABLE DEVELOPMENTS (WEST PALM BEACH), INC., et al., Appellees/Cross Appellants.
    No. 84-448.
    District Court of Appeal of Florida, Fourth District.
    Jan. 23, 1985.
    Neil J. Berman of Berman & Ergas, P.A., Miami, for appellant/cross appellee.
    Brian G. Shannon of Jaffe, Snider, Raitt & Heuer, P.C., Detroit, Mich, and Rosemary Cooney of Paxton, Crow, Bragg & Austin, West Palm Beach, for ap-pellees/cross appellants.
   PER CURIAM.

This is an appeal and cross appeal from a judgment enforcing a materialman’s lien on a construction project which was interrupted for a substantial period of time by the contractor’s wrongful abandonment of the project. The owner contends on appeal that since the total cost to complete the project far exceeded the original contract price there is no fund from which the mate-rialman can collect. We feel compelled to agree and reverse on the authority of Alton Towers, Inc. v. Coplan Pipe & Supply Co., 262 So.2d 671 (Fla.1972). Our ruling renders moot the issue raised by the mate-rialman as to prejudgment interest. However, because we are concerned about the position that this ruling leaves unpaid subcontractors and materialmen on abandoned projects in Florida, we certify the following as a question of great public importance, in order to allow the appellant a means of having this issue reviewed in the Supreme Court:

DOES THE RULING IN ALTON TOWERS, INC. V. COPLAN PIPE & SUPPLY CO., 262 So.2d 671 (Fla.1972) APPLY TO A SITUATION WHERE A CONSTRUCTION PROJECT IS INTERRUPTED FOR A SIGNIFICANT PERIOD OF TIME BY THE CONTRACTOR’S ABANDONMENT OF THE JOB SITE?

ANSTEAD, C.J., and BARRETT, J„ concur.

GLICKSTEIN, J., dissenting with opinion.

GLICKSTEIN, Judge,

dissenting.

In dissenting, I take some comfort in the thought that as little as I may understand the Mechanics Lien Law while responsible for interpreting it, there were possibly some legislators who understood it just about as well when they were responsible for enacting it.

In the recurring nightmare which this case evokes, the parties are standing on both sides of the river with their briefs, each with a copy of Chapter 713, Florida Statutes. There is no bridge of legislative history to either side; and in the middle of the river is an island named Alton Towers, Inc. v. Coplan Pipe & Supply Co., 262 So.2d 671 (Fla.1972), with me, at least, stranded there.

While I join with my colleagues in their decision to certify the question posed to the Supreme Court, it is just that question that occasions my dissent. Cross appellant has not satisfactorily answered it. The stipulated facts in this case establish that the owner abandoned the project for a period of time; and the majority opinion does not come to grips with that abandonment. Cross appellee has persuaded me that an owner should not be allowed to take advantage of his abandonment. Florida Steel points out that by the self-imposed hiatus in construction, costs had to go up. Why should the innocent lienor be the one to suffer under those circumstances? In my view, it should not. The owner can close down the project for a year if sales are soft and scream about the higher costs to complete one year later as a way to freeze out the initial lienors. The scenario has a flavor of herring that cross appellant does not dissipate in its brief.

Frankly, the briefs seem to talk about two different cases as each party contends a different statute governs. In my trying to get safely to one side or the other, cross appellee’s argument seems to be neater and cleaner. If the owner is going to close the project for whatever period it determines, why should not all of those in the pre-abandonment posture be taken care of first? Why should the pre-abandonment lienors be subjected to the vagaries of the period of abandonment or the refinancing and start-up months or years later? They performed and perfected their liens. Had the owner continued the project, rather than abandoning it, and all of the owners’ payments been properly made to the defaulting contractor, then Alton Towers would control. With abandonment, however, in my view, comes loss of the innocence the owner enjoyed in the eyes of the law. It makes sense to me that there should be an announced principle of law so that owners will know that when- they abandon the project, first in time/first in right will prevail.

As for the main appeal, I would reverse the trial court’s denial of prejudgment interest.

My final thought is to emphasize the absence of legislative history to guide the trial court or this court. My first responsibility is to understand the statute and what it was intended to do. It seems basic that in every trial and appeal of a matter wherein the courts are asked to construe a statute, the record must reflect the history that is available.


author: GLICKSTEIN, Judge.

text:
    Madeline K. GROSS and Charles H. Monast, co-personal representatives of the Estate of Raymond E. Gross, deceased, and Madeline K. Gross, individually, Petitioners, v. SECURITY TRUST COMPANY, a Florida corporation, n/k/a Northern Trust Bank of Florida, N.A.,; Archbishop Carroll Catholic Life Center Trust; Holy Cross Hospital, a Florida nonprofit organization; Wilson Petroleum Corporation; Energy Development Corporation and Faith M. Williamson, Respondents.
    No. 84-1727.
    District Court of Appeal of Florida, Fourth District.
    Jan. 23, 1985.
    Rohan Kelley of Kelley & Herb, P.A., Fort Lauderdale, for petitioners.
    Daniel T. Carpenter of Bird, Carpenter & Brown, P.A., Fort Lauderdale, Administrator Ad Litem for the Estate of Raymond E. Gross, deceased.
    Gerald L. Knight of Gustafson, Stephens, Ferris, Forman & Hall, P.A., Fort Lauderdale, for respondent-Security Trust Co.
    Margaret Lynch Hopkins and J. Michael Fitzgerald of Wood, Lucksinger & Epstein, Miami, for respondent-Archbishop Carroll Catholic Life Center Trust.
    Gerald M. Morris of Saunders, Curtis, Ginestra & Gore, Fort Lauderdale, for respondent-Holy Cross Hosp.
    Joseph G. Young of Smathers & Thompson, Miami, for respondent-Faith M. Williamson.
   GLICKSTEIN, Judge.

This petition for certiorari is another round in the fight for the money left behind by Raymond E. Gross upon departing this world. The form of this round is in the production of tapes ordered by the trial court. Apparently, no one had reviewed the tapes prior to the entry of the trial court’s order; as petitioner’s counsel thereafter reviewed them and reacted to his discoveries by an unsuccessful motion for rehearing. When that failed he sought relief in the form of the present petition.

There are two separate, unrelated areas of discussion. The first, that of attorney-client privilege, has merit, and requires that we grant relief, in part because violation of the privilege is outside the scope of discovery, which is expressly limited to matters not privileged. See Fla.R.Civ.P. 1.280(b). Accordingly, while petitioner’s counsel obviously should have asserted privilege at the earliest time, his failure to do so will not prevent the trial court’s in camera examination of the tape to determine if privilege exists. We are not the first to hold as we now do upon the question of timeliness vis-a-vis privilege. See Insurance Company of North America v. Noya, 398 So.2d 836 (Fla. 5th DCA 1981). The judiciary of this state should protect communications which Floridians recognize as privileged, without being hobbled by less important considerations. Here, this privilege is belatedly said to exist on a tape of a meeting at which the attorneys, the decedent and his personal representative were present. The trial court can see if the privilege applies, and if so, protect the tape’s confidentiality from this war over the decedent’s purse.

We view the other contention raised by petitioner as a specter, a shadow on the wall that does not warrant amplification. Accordingly, we deny the balance of the petition.

LETTS and HERSEY, JJ., concur.

      . The only objection petitioner made to production prior to the trial court’s order was on the basis of work product.


text:
    Robert B. EDWARDS, Petitioner, v. STATE of Florida, Respondent.
    No. 84-2154.
    District Court of Appeal of Florida, Fourth District.
    Jan. 23, 1985.
    Rehearing Denied March 6, 1985.
    Ted B. Edwards, of Akerman, Senterfitt & Eidson, Orlando, for petitioner.
    Jim Smith, Atty. Gen., Tallahassee, and Sarah B. Mayer, Asst. Atty. Gen., West Palm Beach, for respondent.
   GLICKSTEIN, Judge.

Petitioner seeks review by writ of certio-rari of the circuit court’s affirmance of the county court’s denial of a motion to suppress. We deny the petition but opt to write because of the uniqueness of the legal issue.

The facts that precipitated all of this judicial attention began at about 9:30 p.m. on July 22, 1983, when petitioner was driving his pickup truck on a highway outside the city limits of Okeechobee in a dangerous fashion. An off-duty law enforcement officer from Okeechobee and an auxiliary officer were behind petitioner in the auxiliary officer’s van and followed him for about five miles. In that distance, they observed him crossing the center line three to seven times. Most important, petitioner’s erratic driving forced approaching vehicles to run onto the berm. As for being a danger to himself, both officers testified that petitioner almost hit a bridge abutment before coming to a halt after being signalled to stop.

The off-duty officer approached petitioner after the stop and identified himself as such. He was not in uniform, displayed no badge, and had neither weapons nor handcuffs. He examined and retained petitioner’s driver’s license; and although he did not arrest petitioner or give him a sobriety test, he clearly detained him. While waiting for a highway patrolman to appear petitioner admitted he had imbibed too much. Thirty minutes later he failed the patrolman’s roadside sobriety tests, whereupon the patrolman transported petitioner to the county jail, where he failed a breathalyzer test. Petitioner was then formally arrested for driving while intoxicated.

Petitioner unsuccessfully sought to suppress the test results, the state’s witnesses’ testimony about his visual appearance at the time, and his own statements, as fruits of an illegal arrest. When his suppression motion was rejected in county court, he pled nolo contendere but reserved the right to appeal the denial of his suppression motion. His appeal to the circuit court also failed, and he petitioned this court for writ of common law certiorari. The issue before us is whether the circuit court departed from the essential requirements of law when it affirmed the county court’s denial of petitioner’s motion to suppress, inasmuch as an off-duty officer outside his jurisdiction may not detain a person under color of office unless a private citizen could arrest that person; and there is no common law right of a private citizen to arrest someone for committing a misdemeanor that is not a breach of the peace.

The circuit court found that Officer Am-mons, the off-duty officer, did not employ any special police powers in arresting petitioner, and that the “under color of office” doctrine did not apply. It also held that Officer Ammons properly exercised his power as a private citizen to arrest petitioner, whose conduct constituted a breach of the peace because it posed a threat to himself, other motorists and pedestrians. We agree with that conclusion.

It is clear that a police officer in fresh pursuit of a felon or misdemeanant or violator of traffic laws has the right of arrest outside his jurisdiction. See Cheatem v. State, 416 So.2d 35 (Fla. 4th DCA 1982). None of those was applicable here, placing Officer Ammons in the same position as a private citizen. At common law, a private citizen may arrest a person who in the citizen’s presence commits a felony or breach of the peace, or a felony having occurred, the citizen believes this person committed it. State v. Schuyler, 390 So.2d 458, 460 (Fla. 3d DCA 1980); and Schachter v. State, 338 So.2d 269, 270 (Fla. 3d DCA 1976). Neither Officer Ammons’ identification of himself as an off-duty law enforcement officer nor his offer to show petitioner his badge constitutes acting under color of office. See Phoenix v. State, 455 So.2d 1024 (Fla.1984).

The issue boils down to whether petitioner’s conduct amounts to a breach of the peace. We cannot think of a more apt illustration of such breach of the individual and collective peace of the people in Okeechobee County than to have a drunk driver at the wheel of a killing machine that is going all over the road and scaring oncoming drivers to death rather than killing them. What is petitioner’s view of a breach of the peace? Is it that the drivers of the oncoming vehicles who were forced onto the berm should have been forced completely off the road or actually hit? Is it that only those incidents which occur on foot or in areas of assembly can constitute a breach of the peace? Is it that repeatedly honking an automobile horn late at night is a breach of the peace but that causing other drivers to leave their lane of travel out of fear or great concern is not?

In B.A.A. v. State, 333 So.2d 552, 554 (Fla. 3d DCA 1976), the court said:

In the instant case the arrest was valid because the defendant was loitering under circumstances which threatened a breach of peace or a disruption of traffic. There is no statute defining a breach of the peace in Florida and, in the absence of an ordinance defining the breach of the peace, the existence of a breach of the peace depends upon the common law. Op.Atty.Gen. 056-296, October 2, 1956. “Breach of the peace” is a generic term including all violations of the public peace, order or decorum. 11 C.J.S. Breach of the Peace § 1 (1938). A breach of the peace includes the violation of any law enacted to preserve peace and good order. Miles v. State, 30 Okl.Cr. 302, 236 P. 57, 44 A.L.R. 129 (1925). (Emphasis in original)

The law resembles the dance or any other form of human experience in that its life is dependent upon evolving discovery. Only when the law imitates the legendary ostrich does Samuel Johnson’s rancorous condemnation seem hard to wash off. So we not only feel comfortable in considering petitioner’s conduct a breach of the peace, we also feel petitioner and his Okeechobee neighbors are fortunate that we are discussing only a breach of the peace and not a highway disaster. Someone must have been watching over all of them at 9:30 p.m. on July 22, 1983, when petitioner was behind the wheel, drunk, on a public highway.

DELL, J., concurs.

WALDEN, J., concurs in conclusion only.


author: OTT, Acting Chief Judge.

text:
    Dexter D. HINTON, Appellant, v. STATE of Florida, Appellee.
    No. 83-1536.
    District Court of Appeal of Florida, Second District.
    Jan. 23, 1985.
    James Marion Moorman, Public Defender, and Robert F. Moeller Asst. Public Defender, Bartow, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and William E. Taylor, Asst. Atty. Gen., Tampa, for appellee.
   OTT, Acting Chief Judge.

The trial court revoked appellant’s probation and sentenced him to ninety-nine years in prison. Because the alleged violation of the special condition of probation occurred before it was imposed or the probation order was entered, we reverse.

On May 17,1982, the appellant, pursuant to a negotiated plea, pled guilty to robbery with a deadly weapon in exchange for probation. The agreement required appellant to testify truthfully for the state against his co-defendant. The trial court was adamant that the appellant agree to testify truthfully in exchange for the probation. At the plea hearing, there was some confusion as to the status of the co-defendant’s case. The trial court thereupon withheld adjudication and set sentencing for July 1, 1982, with the caveat that the state could request an earlier sentencing if it developed that the trial date of appellant’s co-defendant and the need for appellant’s testimony therein came on before July 1, 1982.

For reasons unknown, before the sentencing date, on June 23, 1982, the state attempted to take the appellant’s statement, but he refused. At the sentencing hearing on July 1, the special condition to testify was not mentioned, nor was the fact that the appellant had already refused to testify brought to the attention of the trial court. The trial court adjudicated appellant guilty and pronounced sentence of fifteen years probation for robbery with a deadly weapon. In the subsequent written sentencing order, which the appellant never saw or signed, the condition to testify was listed as condition of probation number sixteen.

On October 28, 1982, an arrest warrant was served on the appellant for violation of probation, based upon his refusal, prior to the imposition of sentence, to testify against his co-defendant. At the probation revocation hearing on November 10, 1982, the state announced that it would dismiss the warrant because at the time the appellant had refused to give testimony, he had not yet been placed on probation, and because the condition had not been communicated to the appellant at sentencing. The trial court continued the probation revocation hearing for the case to be re-evaluated.

The appellant next appeared in front of the trial court on December 3, 1982. The court again continued the revocation hearing so that the state could give the appellant another opportunity to testify against his co-defendant, even though the co-defendant, by this time, had entered a voluntary guilty plea. The record does not disclose that the state ever made such a request, nor what use appellant’s testimony would now serve even if given.

On December 15, 1982, the appellant again appeared in front of the trial court, which found him guilty of violating his probation and sentenced him to ninety-nine years in prison.

At the time of sentencing, appellant had already violated the terms of the plea agreement and had the state-so advised the trial court the plea agreement could have been, and no doubt would have been, rejected. The trial court could not, however, revoke appellant’s probation because he had not yet been placed on probation at the time of the alleged violation.

This court has recently held that a defendant’s probation may be revoked for a violation occurring before the term of the probation has started. Underwood v. State, 455 So.2d 1133 (Fla. 2d DCA 1984).

In Underwood, we were following the supreme court’s recent decision in Stafford v. State, 455 So.2d 385 (Fla.1984), which approved the holding in Martin v. State, 243 So.2d 189 (Fla. 4th DCA), cert. denied, 247 So.2d 63 (Fla.1971). In Martin, the court held:

[T]he court can revoke an order of probation, the term of which has not commenced, should the court determine that the defendant probationer has been guilty of misconduct occurring subse quent to the entry of the order of 'probation.

Id. at 191 [emphasis added].

In this appellant’s case, however, the violation occurred prior to the entry of the probation order. Although the trial court gave the state ample opportunity to move the sentencing hearing up so that they could properly take the appellant’s statement, they chose to go ahead without the sentencing hearing or order. Indeed, the state did not even mention the violation at the sentencing hearing.

Accordingly, because appellant violated a condition of the plea bargain, which was overlooked at the sentencing hearing, before the probation order was entered, he did not violate probation. Therefore, the revocation is vacated, and the probation reinstated for the original term of fifteen years.

Appellant’s other points on appeal are without merit.

DANAHY and SCHOONOVER, JJ., concur.

      . Pursuant to the negotiated plea, appellant also pleaded guilty and was sentenced to three years in prison for another robbery with a deadly weapon conviction and five years for burglary of a dwelling. Both terms were to run concurrently with each other and with the probation. Neither of these terms is challenged here.


text:
    Lawrence G. TUTTLE, Appellant, v. STATE of Florida, Appellee.
    Nos. 84-408, 84-409.
    District Court of Appeal of Florida, Second District.
    Jan. 23, 1985.
    James Marion Moorman, Public Defender, Bartow, and L.S. Alperstein, Asst. Public Defender, Tampa, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Michael J. Kotler, Asst. Atty. Gen., Tampa, for appellee.
   PER CURIAM.

We affirm the defendant’s convictions and sentences; however, we note two irregularities in the written judgments which must be corrected. The defendant was convicted of two counts of delivery of cocaine, which is a second-degree felony under section 893.13(l)(a)l, Florida Statutes (Supp.1982). See § 893.03(2)(a)4. Yet, the written judgment on the first count of delivery of cocaine, Circuit Court Case No. 83-5873, incorrectly adjudicated defendant guilty of a third-degree felony under section 893.13(l)(a)2. The written judgment on the other count of delivery of cocaine, Circuit Court Case No. 83-5874, incorrectly adjudicated defendant guilty under section 893.13(l)(a)2 instead of section 893.-13(l)(a)l. We remand these eases with directions that both written judgments should be corrected. See Sparkman v. State, 445 So.2d 1115 (Fla. 2d DCA 1984); Jackson v. State, 445 So.2d 407 (Fla. 2d DCA 1984).

SCHEB, A.C.J., CAMPBELL, J., and MALONEY, DENNIS P„ Associate Judge, concur.


author: PACK, R. WALLACE, Associate Judge.

text:
    Linwood M. CRAIN, Appellant, v. STATE of Florida, Appellee.
    No. 84-508.
    District Court of Appeal of Florida, Second District.
    Jan. 23, 1985.
    James Marion Moorman, Public Defender, Bartow, and L.S. Alperstein, Asst. Public Defender, Tampa, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and William I. Munsey, Jr., Asst. Atty. Gen., Tampa, for appellee.
   PACK, R. WALLACE, Associate Judge.

Appellant Linwood Crain was convicted of second degree murder in the death' of Kathy Lee. He raised several points on appeal, the only one of which concerns us is the denial of his motion to suppress physical evidence. We conclude that the trial judge improperly admitted the evidence and reverse and remand for a new trial.

On August 31, 1983, the Appellant lived in a structure located on a pier immediately south of Willie’s Crab Hut in Hillsborough County, Florida. Living with him were his sister and brother-in-law, Wanda and Johnnie Rodriguez. The Appellant lived in this structure with the permission of Doris Browning, manager of Willie’s Crab Hut.

Michael McAllister, the lead detective investigating the death of Kathy Lee, had information that shortly before Kathy Lee had been reported missing she was seen with Linwood Crain. Detective McAllister considered Crain a possible witness — not a suspect — and attempted to find and interview him. At Willie’s Crab Hut the detective made contact with Crain’s sister Wanda and was told by her that she had not seen Crain for two years. Detective McAl-lister next approached the pier upon which the structure was located and encountered Johnnie Rodriguez who, when asked the whereabouts of Linwood Crain, reluctantly motioned with his finger toward the structure. The detective then made his way along the pier to the structure where he opened the door, announced “Police Officers”, stuck his head in and observed Crain lying on a mattress and covered with a blanket.

After McAllister entered the hut Crain made some motions and noises under the covers causing McAllister to think that Crain was disrobing. Crain then stood up naked and put on a pair of blue jeans. Tangled up in the blanket McAllister saw a pair of girl’s panties and asked Crain what they were. Crain responded that he did not know. These panties were then seized by McAllister. Crain was taken to the police station, where he became a suspect after his alibi and statements conflicted with those of other witnesses.

The physical evidence seized from Crain’s home should have been suppressed by the trial court. The detective conducted a warrantless, nonconsensual search of the home. Although the state argues that the cotenant, Johnnie Rodriguez, consented to the search, such clearly was not the case. All Rodriguez did was to point in the direction of the hut after being questioned about Linwood Crain; that gesture did not constitute consent.

No other exceptions to the warrant requirement existed. The detective admitted that Crain was not even a suspect at the time of the seizure of the panties, so there was no probable cause to search and there were no exigent circumstances requiring a search without a warrant. In fact, at the time of the search the police had no reason to seize the panties inasmuch as panties had been found on top of the victim’s body when it was discovered. It was only later when the police learned that the victim wore two pairs of panties when menstruating that this seizure of the Crab Hut panties became an issue. Accordingly we reverse the judgment of second degree murder and remand this case for a new trial.

With one possible exception, the Appellant’s other points on appeal are without merit. We do note that Appellant has argued that the trial judge erred in failing to sequester the jury when it took an overnight recess after deliberations had begun. The recent case of Livingston v. State, 458 So.2d 235 (Fla.1984), held that “in a capital case, after the jury’s deliberations have begun, the jury must be sequestered until it reaches a verdict or is discharged after being ultimately unable to do so.” This point on appeal becomes moot in light of our ruling on the suppression issue, because the defendant will be retried for second degree murder and Livingston will no longer be applicable.

Reversed and remanded for a new trial.

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


author: DANAHY, Judge.

text:
    G. Robert BOLTON, Appellant, v. Patricia T. BOLTON, Appellee.
    No. 84-834.
    District Court of Appeal of Florida, Second District.
    Jan. 23, 1985.
    John T. Allen, Jr., St. Petersburg, for appellant.
    David Maney and A. Ann Arledge of Maney & Damsker, Tampa, for appellee.
   DANAHY, Judge.

In this dissolution of marriage proceeding, the husband appeals the summary denial of his motion for modification of child support. We reverse.

The parties’ marriage was dissolved in 1981. Since that time, both parties have filed numerous motions and petitions and a number of hearings have been held. In an apparent effort to protect his calendar and gain some control of the situation, the trial judge entered an order sua sponte on March 24, 1983, establishing a procedure for setting hearings in the cause. The order required that any matter upon which a hearing was requested should be submitted directly to the judge together with a request for hearing and an estimate of the time involved. The order further provided that, upon receipt of the motion, the judge would then review the matter and either resolve it without the need for oral argument or hearing, or set it down for hearing with notice. No appeal was taken from that order.

On October 20, 1983, the husband filed a petition for modification seeking to modify the award of child support. In regard to that petition, the trial judge directed the parties to submit financial affidavits. Both did so.

Subsequently, the trial judge entered the order herein appealed, making findings of fact on the basis of the financial affidavits and concluding that as a matter of law and fact, modification of child support was inappropriate. The husband’s petition was, therefore, denied. Subsequently, the husband filed petitions for rehearing in which he set forth arguments and evidence which he wished to present at an evidentiary hearing on his petition for modification. Those petitions were also denied.

The husband challenges the order denying his petition for modification on the ground that the denial of the petition without an evidentiary hearing violated the husband’s due process rights. We agree. Fickle v. Adkins, 394 So.2d 461 (Fla. 3d DCA 1981); Christiansen v. Christiansen, 354 So.2d 1254 (Fla. 4th DCA 1978).

Accordingly, we reverse with directions that the trial judge conduct a hearing, upon due notice to both parties, on the husband’s petition for modification and permit the parties at that hearing to produce such evidence as they may wish in regard to the petition.

REVERSED AND REMANDED.

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


author: CAMPBELL, Judge.

text:
    MEDICAL CENTER HOSPITAL INCORPORATED, Appellant, v. Gerard COLEMAN, as Sheriff of Pinellas County, et al., Appellee.
    No. 84-948.
    District Court of Appeal of Florida, Second District.
    Jan. 23, 1985.
    J. Patrick McElroy of Law Offices of J. Patrick McElroy, Clearwater, for appellant.

      John E. Schaefer, Asst. Co. Atty., Clear-water, for appellee.
   CAMPBELL, Judge.

Appellant, Medical Center Hospital, Incorporated, appeals the trial court’s ruling that appellee, Gerard Coleman, as Sheriff of Pinellas County, was not responsible for medical bills incurred on behalf of a prisoner technically in custody of appellee. We reverse.

Daniel Ballenger was wanted on an active arrest warrant for desertion from the United States Navy. While that arrest warrant was outstanding, he was involved in a traffic accident in Pinellas County. Both a Pinellas County sheriffs deputy and a Florida Highway Patrol trooper arrived at the scene. After obtaining Ballen-ger’s driver’s license, the trooper requested the deputy to check for outstanding warrants and the desertion warrant was revealed. The trooper then advised Ballen-ger he would be taken to the Pinellas County Jail to await disposition of the warrant.

After being placed in the trooper’s patrol car, Ballenger reached for a gun which a previous search had not revealed. As the trooper swerved his vehicle to disrupt Bal-lenger’s use of the gun, it discharged and wounded Ballenger. An ambulance was called and Ballenger transported to the appellant hospital where he underwent surgery. He remained at the hospital some ten days either handcuffed or guarded by the Florida Highway Patrol. Members of the Pinellas County Sheriff’s Department made visits to the hospital for the purpose of obtaining evidence. Upon his release, Ballenger was transferred to federal authorities. Inexplicably, the federal authorities have failed to pay the medical bills.

The appellee argued below, and the trial court found, that Ballenger was never in the custody of appellee and, therefore, there was no responsibility by appellee to pay appellant’s bill. As this court observed in Hospital Board of Directors of Lee County v. Durkis, 426 So.2d 50 (Fla. 2d DCA 1982), section 951.23(2), Florida Statutes (1981), directs the Department of Corrections to adopt rules providing for medical attention for county prisoners. The department, in response to the statute, adopted Florida Administrative Code Rule 33-8.07, which requires a county sheriff to furnish medical care for his prisoners. The question in this case focuses on whether appellee had “technical custody” of Ballen-ger. We hold he did.

Section 321.05(1), Florida Statutes (1981), provides for members of the Florida Highway Patrol “to apprehend fugitives from justice.” Section 321.05(4)(a), provides that “the person arrested shall be delivered forthwith by said officer to the sheriff of the county_” Mr. Ballenger was in custody of the Florida Highway Patrol trooper for the purpose of delivering him to the Pinellas County Jail when the incident occurred which caused the hospitalization. As such, he was in technical custody of the sheriff when, instead of going to jail, he was detained at the hospital.

We observe that there are some inequities in requiring the citizens of the county wherein a prisoner is in custody to pay for medical expenses where the prisoner is held for other jurisdictions. However, that is a legislative problem and the legislation, as it presently exists, clearly calls for the custodial county sheriff to be responsible. We also feel compelled to wonder why the federal authorities should not demonstrate some responsibility for obligations which appear to be clearly theirs.

Reversed and remanded for treatment consistent herewith.

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


text:
    Salvatore Joseph VALIANTE, Petitioner, v. ALLSTATE INSURANCE COMPANY, a foreign corporation, Respondent.
    No. 84-2378.
    District Court of Appeal of Florida, Second District.
    Jan. 23, 1985.
    C. Samuel Newman of L.D. Beltz & Associates, St. Petersburg, for petitioner.
    Gregory W. Hootman and Claire L. Ham-ner of Dickinson, O’Riorden, Gibbons, Qua-le, Shields & Carlton, P.A., Sarasota, for respondent.
   OTT, Acting Chief Judge.

In this petition for writ of certiorari, the petitioner, Vahante, asks this court to quash an order of the lower court striking his request for a jury trial in an action for declaratory judgment. We grant the petition. See Spring v. Ronel Refining, Inc., 421 So.2d 46 (Fla. 3d DCA 1982).

Vahante filed a complaint against Allstate seeking a declaratory judgment as to his rights and duties under a certain contract of personal injury protection insurance. Vahante further seeks payment of benefits pursuant to the contract. The complaint sets forth issues of law and fact. The lower court granted Allstate’s motion to strike Valiante’s demand for a jury trial.

Allstate now concedes that under section 86.071, Florida Statutes (1983), Vahante has a right to a jury trial on the factual issues should the legal questions presented in his complaint be decided in Valiante’s favor. See F.R.W.P., Inc. v. Home Insurance Co., 450 So.2d 914 (Fla. 4th DCA 1984). See also Olin’s Inc. v. Avis Rental Car System of Florida, 131 So.2d 20 (Fla. 3d DCA 1961).

We agree and, therefore, grant the petition and quash the order of the lower court striking petitioner’s demand for jury trial with directions to grant a jury trial on the factual issues presented by petitioner’s complaint should the legal issues be decided in his favor.

Petition for writ of certiorari GRANTED.

CAMPBELL and FRANK, JJ., concur.


text:
    John M. SHORT, Petitioner, v. GAYLORD BROADCASTING COMPANY; Tampa Television, Inc.; WTSP-TV, Inc.; Times Publishing Company; and State of Florida, Respondents.
    No. 84-2576.
    District Court of Appeal of Florida, Second District.
    Jan. 23, 1985.
    Anthony S. Battaglia and Stephen J. Wein of Battaglia, Ross, Hastings, Dieus & Andrews, St. Petersburg, for petitioner.
    Gregory G. Jones of Carlton, Fields, Ward, Emmanuel, Smith & Cutler, P.A., Tampa, for respondent Gaylord Broadcasting Co.
    Gregg D. Thomas and Mike Piscitelli of Holland & Knight, Tampa, for respondent Tampa Television, Inc.
    Jon H. Somsen of Whittemore & Campbell, P.A., St. Petersburg, for respondent WTSP-TV, Inc.
    George K. Rahdert of Rahdert, Malone & Richardson, St. Petersburg, for respondent Times Pub. Co.
    Jim Smith, Atty. Gen., Tallahassee, Robert J. Landry, Asst. Atty. Gen., Tampa, James T. Russell, State Atty. and C. Marie King, Asst. State Atty., Clearwater, for respondent State of Fla.
   OTT, Acting Chief Judge.

We deny this Petition for Writ of Certio-rari because the trial court did not depart from the essential requirements of law. We write in order to give guidance to the parties and trial judge in this case and to the bench and bar as a whole, because the circumstances found in this case are likely to reoccur.

Petitioner was involved in the discovery phase of preparing for the defense of criminal charges filed against him. Members of the news media attended discovery depositions and reported on portions of testimony of certain witnesses. Petitioner filed a motion to exclude the press from attending, recording, and reporting on future depositions. The trial court held that there was a first amendment right involved and proceeded to apply the three-prong test prescribed for such cases in Miami Herald Publishing Co. v. Lewis, 426 So.2d 1 (Fla. 1982). The trial court found that the evidence failed to meet the test for excluding the press from the depositions, which he considered to be “judicial proceedings.”

The Supreme Court recently held that pretrial depositions are not public components of court proceedings. Seattle Times Co. v. Rhinehart, — U.S. -, 104 S.Ct. 2199, 81 L.Ed.2d 17 (1984). Based upon Seattle Times, we do not perceive this case as involving a first amendment right of the news media to attend and report on the depositions.

Florida Rule of Criminal Procedure 3.220(d) provides general guidelines governing depositions in criminal cases. The rule also states, “[e]xcept as provided herein, the procedure for taking such depositions, including the scope of the examination, shall be the same as that provided in the Florida Rules of Civil Procedure.” We therefore look to Florida Rule of Civil Procedure 1.280(c), which provides in pertinent part:

Protective Orders. Upon motion by a party or by the person from whom discovery is sought, and for good cause shown, the court in which the action is pending may make any order to protect a party or person from annoyance, embarrassment, oppression, or undue burden or expense that justice requires, including one or more of the following: ... (5) that discovery be conducted with no one present except persons designated by the court ....

This rule gives the trial court control over who may or may not attend depositions; the court’s discretion is limited only by the standard “for good cause shown.” The rule places the burden of obtaining a protective order on the person or party seeking to limit attendance at a deposition.

In this case, petitioner urged below that the attendance by the press at depositions would result in saturation of the community with publicity concerning the charges and evidence against «petitioner. In essence, he argued he would be unable to receive a fair trial by an impartial jury. The trial court rejected petitioner’s argument and made findings tantamount to a finding that petitioner’s argument did not amount to good cause for closing the depositions. Based on the record before us, we •hold that this ruling was not a departure from the essential requirements of law.

Finally, we note that it is expensive, time consuming, and inconvenient for the parties, their attorneys, witnesses, and court reporters to show up for a deposition only to be surprised by the attendance of members of the press, resulting in the disruption of the deposition in order to seek a protective order. We hope that members of the media will be courteous enough to provide some type of advance notice to the attorneys involved of intent to attend discovery depositions. Such a procedure would allow any problems to be resolved prior to a scheduled deposition.

Petition for Writ of Certiorari DENIED.

CAMPBELL, J., and BOARDMAN, EDWARD F., (Ret.) J., concur.

        .Lewis imposes the following requirements on closure of a pretrial hearing:
      1. Closure is necessary to prevent a serious and imminent threat to that administration of justice;
      2. No alternatives are available, other than change of venue, which would protect a defendant’s right to a fair trial; and
      3.Closure would be effective in protecting the rights of the accused, without being broader than necessary to accomplish this purpose.
      426 So.2d at 3.


author: POWELL, R.W., Associate Judge.

text:
    Bernard P. RICARD, Appellant/Cross Appellee, v. The EQUITABLE LIFE ASSURANCE SOCIETY OF the UNITED STATES, etc., et al., Appellees/Cross Appellants.
    No. 83-1773.
    District Court of Appeal of Florida, Fifth District.
    Jan. 24, 1985.

      Stephen M. Stone, Orlando, for appellant/cross appellee.
    Harlan Tuck of Giles, Hedrick & Robinson, Orlando, for appellees/cross appellants.
   POWELL, R.W., Associate Judge.

Ricard appeals from a final deficiency judgment after foreclosure of a vendor’s lien, contending only that the lower court had no authority to enter a deficiency judgment. Equitable cross appeals claiming that the lower court erred in allowing Ri-card credit against the deficiency for the value of improvements Ricard made to the property while in possession. We affirm the lower court’s holding that authority existed for entry of a deficiency judgment, but reverse that portion of the judgment allowing Ricard a credit.

The salient facts are that on March 26, 1982, Equitable, as seller, and Ricard, as buyer, entered into a contract for sale and purchase of a dairy farm near Ocala. The purchase price was $4,472,980.00 and the property had an existing mortgage with a balance of $3,472,980.00 which Ricard agreed to assume and pay. Upon execution of the contract, Ricard paid Equitable $400,000.00 and was given the right to take possession of the land and assume the dairy operations which he did. Closing was set for July 15, 1982, at which time the deferred balance of $600,000.00 was due. From the date of the contract until closing, interest was to accrue at fourteen percent on both the deferred payment and the existing mortgage balance and was to be paid by Ricard at closing.

Equitable was prepared to close on the date set, but Ricard was not and as a result Equitable, on January 17, 1983, brought an action for foreclosure of its vendor’s lien, ejectment and quiet title.

A final judgment of foreclosure was entered by the lower court on August 2,1983, finding that Ricard owed Equitable $1,383,-328.15. Of that sum, $713,457.53 constituted the deferred payment plus interest and $656,726.25 constituted accrued interest on the existing mortgage balance. The judgment of foreclosure was not appealed.

A foreclosure sale of the property took place on September 6, 1983, at which Equitable was the highest bidder, obtaining the property for $600,000.00.

Equitable subsequently moved for entry of a deficiency judgment. A hearing was held and evidence presented as to the value of certain improvements Ricard made to the land while he was in possession. Ri-card’s attorney contended that the evidence showed the value at close to $300,000.00. Other evidence showed that Ricard had caused certain large water pumps and diesel motors to be removed from the property for repair and modification. Allis Chai-mers had the equipment and claimed a lien on it for monies owed. Equitable argued that it would cost $200,000.00 to recover and reinstall the equipment at the farm. The trial judge, after considering the evidence as to the improvements and missing equipment, concluded that Ricard was entitled to a credit of $200,000.00 against the deficiency amount of $783,328.15, and entered a deficiency judgment for $583,-328.15, from which Ricard appeals. Equitable claims the court erred in reducing the deficiency amount by allowing a credit of $200,000.00.

Ricard is correct that the Florida Supreme Court has held in two early cases that absent an authorizing court rule or statute, no deficiency judgment may be entered after foreclosure of a vendor’s lien. Johnson v. McKinnon, 45 Fla. 388, 34 So. 272 (1903); Johnson v. McKinnon, 54 Fla. 221, 45 So. 23 (1907). However, we agree with Equitable that although there is no authorizing court rule, under the particular provisions of this contract and the circumstances of this case, the contract is one of those instruments deemed a mortgage under section 697.01, Florida Statutes (1983), subject to the same rules of foreclosure, and that section 702.06, Florida Statutes (1983), applies to authorize entry of a deficiency judgment in this case.

Prior decisions have recognized that typical installment contracts for deed, which are essentially security devices intended to take the place of a purchase money mortgage, fall within the first cited statute, Hoffman v. Semet, 316 So.2d 649 (Fla. 4th DCA 1975) (citing earlier cases); Adkinson v. Nyberg, 344 So.2d 614 (Fla. 2d DCA 1977); Cain and Bultman, Inc. v. Miss Sam, Inc., 409 So.2d 114 (Fla. 5th DCA 1982), while ordinary short-term real estate contracts, such as those commonly called deposit receipt contracts, those not specifically enforceable, or those under which the vendee has no right to possession or other benefits and burdens of ownership, do not. See H & L Land Co. v. Warner, 258 So.2d 293 (Fla. 2d DCA 1972). We see no real legal distinction between this contract calling for a lump sum final payment and an installment contract for deed. Ricard concedes that Equitable held legal title as security for the unpaid balance of the purchase price while the contract was executo-ry. Ricard had possession of the land for just under a year. During this time he was entitled to and did receive in excess of one million dollars in gross proceeds from the sale of milk. He did some work in the nature of maintenance and made some improvements on the farm. We hold that the trial judge had authority to enter a deficiency judgment in this case.

We agree with Equitable’s point on cross appeal that the trial judge erred in allowing Ricard a credit against the full deficiency found to be due. We have held that when a mortgage secures the outstanding principle indebtedness plus interest and costs, and the foreclosure sale is insufficient to cover all sums, the mortgagee is entitled to a deficiency judgment for the balance due in the absence of a shockingly inadequate sale price, improper relationship between the mortgagee and the purchaser at sale, fraud or other recognized equitable reason for denying a deficiency. Flagship State Bank v. Drew Equipment Co., 392 So.2d 609 (Fla. 5th DCA 1981). See also Federal Deposit Ins. Corp. v. Circle Bar Ranch, Inc., 450 So.2d 921 (Fla. 5th DCA 1984). We see no reason why this principle should not apply here even though Equitable was a foreclosing vendor purchasing at the sale and not a third-party bidder. There were no recognized equitable circumstances presented in the evidence which would justify a denial of or a limitation on recovery of the full amount of the deficiency. Equitable’s bid theoretically took into consideration any improvements to the property at the time of the sale as well as the cost to be incurred for repair and reinstallation of the equipment. We see no real difference between reducing the deficiency because of improvements, which the judge did here, and denying a deficiency upon a finding that the market price exceeded the sale price, which we disapproved in Flagship Bank, or limiting the deficiency to the principle balance for the same reason, which we disapproved in Federal Deposit Ins. Co. Consequently, we reverse the deficiency judgment insofar as it allows a credit of $200,000 and remand with directions to enter judgment for the full amount of $783,-328.15 with legal interest from the date of the original judgment.

AFFIRMED in part and REVERSED in part, with directions.

ORFINGER and COWART, JJ., concur.


author: COBB, Chief Judge.

text:
    Leonard SUSSMAN, Appellant, v. CITY OF DAYTONA BEACH, Victor Hockenberry and Sergeant Gallagher, Appellees.
    No. 83-1796.
    District Court of Appeal of Florida, Fifth District.
    Jan. 24, 1985.
    William N. Gambert, Daytona Beach, for appellant.
    Alfred A. Green, Jr., Daytona Beach, for appellees.
   COBB, Chief Judge.

The appellant, Leonard Sussman, appeals from a directed verdict at the conclusion of his action against the City of Daytona Beach claiming false arrest, false imprisonment, and malicious prosecution. The case arose from an incident which occurred within the City of Daytona Beach when two municipal police officers arrested Sussman and charged him with the unlawful sale of a controlled substance and two counts of unlawful possession of a prescription drug (diazepam and dextropro-poxyphene) in a container other than its original one. The state subsequently filed a nolle prosequi on these charges.

At trial Sussman took the stand and gave evidence asserting his innocence. There was no evidence as to the facts upon which the officers relied in making the arrest, since neither officer testified and no investigative file or report was introduced. Nor did the alleged purchaser of the drugs testify. In other words, the sole evidence before the court at the time of the directed verdict was that of the plaintiff, who could not testify as to the nature or extent of the evidence from which the police officers found probable cause to arrest him. Appellant contends that the inferences available from his own testimony entitled him to a jury determination on the issue of probable cause.

In Glass v. Parrish, 51 So.2d 717, 722 (Fla.1951), the Florida Supreme Court approved the following quotation from an Indiana case:

What facts and circumstances amount to probable cause is a pure question of law. Whether they exist or not in any particular case is a pure question of fact.

This is an exposition of the majority view on this question. See 87 A.L.R.2d 183, 188-89. It was reaffirmed in the later Florida Supreme Court case of City of Pensacola v. Owens, 369 So.2d 328 (Fla.1979).

In the case of Phelan v. City of Coral Gables, 415 So.2d 1292 (Fla. 3d DCA 1982), it was pointed out that the fact of acquittal or dismissal of criminal charges does not by itself establish the absence of probable cause for purposes of a subsequent civil action for malicious prosecution. In affirming a summary judgment for the defendant city, the Third District stated:

Where no evidence is presented to establish that the criminal charges lacked a probable foundation, summary judgment is proper.

Id. at 1294.

That holding is applicable to the instant case, wherein the issue was not the guilt or innocence of Sussman but whether or not the factual information reasonably relied upon by the police officers provided them probable cause to arrest Sussman. No evidence as to what those facts were was adduced at trial, and the judgment below, therefore, is

AFFIRMED.

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

      . The two individual defendants shown in the caption were voluntarily dismissed by the plaintiff at the time of pretrial conference.

      . The fact that these latter charges were predicated on a statute (§ 893.13(2)(a)7) subsequently determined to be unconstitutional by the Florida Supreme Court does not bear upon the issues of malice and probable cause raised by this appeal. See State v. Walker, 461 So.2d 108, (Fla.1984).

      . Cleveland, C., C. & S.L.R. Co. v. Dixon, 51 Ind.App. 658, 96 N.E. 815, 816 (1911).


author: ORFINGER, Judge.

text:
    STATE of Florida, Appellant, v. Larry Edward EVANS, Appellee.
    No. 84-69.
    District Court of Appeal of Florida, Fifth District.
    Jan. 24, 1985.

      Jim Smith, Atty. Gen., Tallahassee, and Evelyn D. Golden, Asst. Atty. Gen., Dayto-na Beach, for appellant.
    James B. Gibson, Public Defender and James R. Wulchak, Chief, Appellate Div., Asst. Public Defender, Daytona Beach, for appellee.
   ORFINGER, Judge.

The State appeals from an order of the trial court excluding from evidence the in-culpatory statements made by defendant to a deputy sheriff. We reverse.

The abbreviated record before us reflects the following facts. Appellee Evans, confined in the Orange County jail on another charge, but under the name of Mark Sears, was interviewed by Seminole County Deputy Sheriff Bowden who was investigating a Seminole County burglary. Evans was a suspect in the Seminole burglary, and, when they came face to face, Bowden realized that Sears was really Evans because he had a picture of Evans with him. After fully advising Evans of his rights, Bowden inquired if Evans would talk with him. Evans responded that he wanted an attorney, so Bowden promptly stopped the questioning and left the jail. An information was subsequently filed against Evans for burglary and grand theft.

Approximately two months later, Bow-den was advised that Evans, now confined in the Seminole County jail, wanted to talk with him. Bowden went to the jail, met with Evans and inquired if Evans had sent for him. Evans replied affirmatively, and when Bowden asked if he had counsel, Evans stated that he had been assigned a public defender, but had discharged him and wanted to talk with Bowden about the crime. Bowden then again read Evans his rights from a standard Miranda card. Evans acknowledged his understanding of these rights and signed the card. Bowden did not contact the public defender’s office or make any inquiry as to the truth of Evans’ statement that he had discharged his attorney. The interview which followed and which resulted in the admissions suppressed here were tape recorded, and the evidence reflects that Evans was aware of this because the tape recorder and microphone were on the table between the two men.

Defendant supports the trial court’s order because it makes these findings:

1. Deputy Bowden knew, before speaking with the defendant, that the defendant had previously been appointed a public defender.
2. When, in speaking with the defendant, Deputy Bowden learned of a conflict between the defendant and his public defender, Deputy Bowden should have not proceeded with the interview until such time as he verified the status of the attorney-client relationship between the defendant and his public defender.
3. Deputy Bowden should have not assumed the correctness of the defendant’s statement reference “firing” his public defender.
4. In spite of defendant’s apparent desire to speak with Deputy Bowden, he still should have communicated with the defendant’s public defender, and, if the attorney-client relationship was still in existence, according to the public defender, Deputy Bow-den should only have proceeded to interview the defendant with the consent of said public defender.

The State correctly asserts that there was no violation of defendant’s right to counsel because such right was freely and voluntarily waived. In Edwards v. Arizona, 451 U.S. 477, 101 S.Ct. 1880, 68 L.Ed.2d 378 (1981) the United States Supreme Court held:

[W]hen an accused has invoked his right to have counsel present during custodial interrogation, a valid waiver of that right cannot be established by showing only that he responded to further police-initiated custodial interrogation even if he has been advised of his rights. We further hold that an accused, such as Edwards, having expressed his desire to deal with the police only through counsel, is not subject to further interrogation by the authorities until counsel has been made available to him, unless the accused himself initiates further communication, exchanges, or conversations with the police. [Emphasis added].

451 U.S. at 484-85, 101 S.Ct. at 1884-85, 68 L.Ed.2d at 386.

Edwards has since been interpreted by the United States Supreme Court in Wyrick v. Fields, 459 U.S. 42, 103 S.Ct. 394, 74 L.Ed.2d 214 (1982) to require an examination of the “totality of the circumstances” in order to determine whether a violation of the defendant’s Fifth Amendment rights had occurred. In Oregon v. Bradshaw, 462 U.S. 1039, 103 S.Ct. 2830, 77 L.Ed.2d 405 (1983) the United States Supreme Court stated that an initiation of conversation by an accused who had expressed the desire to deal with the police only through an attorney is not alone sufficient to show a waiver of the right to counsel. Therefore, after a defendant initiates a conversation with a police officer, it must be determined under the totality of the circumstances whether the waiver was knowing and intelligent.

In Waterhouse v. State, 429 So.2d 301 (Fla.1983) the appellant was found guilty of murder. Among other things, he argued that the court erred in denying his motion to suppress several statements he made to the police because the officers had questioned him after he had invoked his right to consult an attorney. At appellant’s first judicial appearance a public defender was appointed to represent him. Later that same day appellant made several admissions to the police in interviews which the court found he initiated. On appeal appellant argued that the officer should have notified his attorney before proceeding with the interview that afternoon. The Supreme Court of Florida stated:

There is no per se rule, however, requiring officers to notify the defendant’s counsel before communicating with the accused and we decline to adopt such a rule now. The fact that an accused is represented by counsel does not preclude his waiver of the right to have counsel present when talking to law enforcement officers, [citation omitted]. Here the appellant had invited the officers to return, was warned of his rights, and knowingly waived his right to have counsel present.

Id. at 305, 306.

In Witt v. State, 342 So.2d 497 (Fla.), cert. denied, 434 U.S. 935, 98 S.Ct. 422, 54 L.Ed.2d 294 (1977) the appellant was arrested and advised of his rights. The appellant requested counsel. The police officers immediately stopped questioning the appellant. The next day appellant made his first judicial appearance with a public defender. The following morning appellant, in a casual conversation with a police officer, told the police officer that he wanted to confess to the murder, at which time the appellant was removed from his cell and taken to the Sheriffs Office where he confessed orally and in a hand-written statement. Finding it to be uneontraverted that prior to this confession defendant was fully advised of his constitutional rights, specifically rejected an offer to consult counsel, and signed a written waiver thereof, the court found that the circumstances showed a knowing and intelligent waiver of his right to have counsel present and his right to remain silent. The law does recognize a defendant’s right to voluntarily change his mind after he has invoked his right to be questioned with counsel present. Witt, supra.

In summary, it is clear that after a suspect requests an attorney, a waiver of that right must be knowing, intelligent and voluntary. Edwards, supra. If a suspect initiates a second encounter and volunteers statements, nothing prohibits the police from listening. Id. This case before us does not present the situation where police officers impermissibly elicited statements from a suspect after the suspect had exercised his right to counsel and his right to remain silent. Instead, the appellee initiated the conversation with Deputy Bowden and, after again being advised of his rights, voluntarily signed a waiver, stated that he had fired or dismissed his public defender and that he wanted to speak to Deputy Bowden without counsel. Under the totality of circumstances the appellee clearly made a knowing and intelligent waiver of his right to have an attorney present. Deputy Bowden was not required to notify Evan’s counsel before communicating with Evans under the circumstances of this case.

It was thus error to suppress the admissions. The order appealed from is reversed and the cause is remanded for further proceedings consistent herewith.

REVERSED and REMANDED.

COBB, C.J., and DAUKSCH, J„ concur.

      . Rule 9.140(c)(1)(B), Fla.R.App.P.


text:
    Herman F. SMITH and Myrtle A. Smith, his wife, Appellants, v. AUTO OWNERS INSURANCE CO., a foreign corporation authorized to do business in the State of Florida, Appellee.
    No. 84-73.
    District Court of Appeal of Florida, Fifth District.
    Jan. 24, 1985.

      William N. Asma of Ralph W. Hadley, III, P.A., Winter Garden, for appellants.
    H. David Luff of Sanders, McEwan, Mims & McDonald, Orlando, for appellee.
   COBB, Chief Judge.

The trial court herein granted a summary judgment in favor of a surety, Auto Owners Insurance Co., which had issued a license and permit bond to protect retail customers dealing with a mobile home dealer, Florida Investors Unlimited, Inc. (FIU), and against the purchasers of a mobile home, the Smiths. The basis for the judgment excluding coverage was that the surety’s principal (FIU) was permitted under its license certificate to conduct business at a specific location in Jacksonville, Florida, whereas the sales transaction involving the Smiths occurred in Orange County, Florida. The trial court construed section 320.-77(14)(a), Florida Statutes (1981), to provide protection to retail customers only on sales that occur at geographical places as stated in the mobile home dealer’s license certificate. That section states:

(a) Before any license shall be issued or renewed, the applicant shall deliver to the department a good and sufficient surety bond, executed by the applicant as principal and by a surety company qualified to do business in the state as surety. The bond shall be in a form to be approved by the department and shall be conditioned upon the dealer’s complying with the conditions of any written contract made by him in connection with the sale or exchange of any mobile home or recreational vehicle and his not violating any of the provisions of Chapter 319 or Chapter 320 in the conduct of the business for which he is licensed. The bond shall be to the department and in favor of any retail customer who shall suffer any loss as a result of any violation of the conditions hereinabove contained....

The appellant argues that there is no language in this subsection that requires that a sale take place at a specific location, and that the statutory language refers to “any retail customer who shall suffer any loss as a result of any violation.” Appellant contends that the thrust of the entire provision is directed toward the conduct of the dealer and the protection of his customer, not to the location of the sale.

The appellee, on the other hand, argues that subsection (6) of section 320.77 provides that a license certificate issued by the Florida Department of Highway Safety and Motor Vehicles entitles the licensee to conduct business at the location set forth in the license, and that subsection (7) requires a supplemental license for a licensee to operate an additional place of business. The appellee points to the language in subsection (14)(a) which refers to violations by the dealer “in the conduct of the business for which he is licensed,” and argues that the business for which its principal, FIU, was licensed was the sale of mobile homes at 1101 Phillips Highway, Jacksonville, Florida.

The appellee s argument is specious, and the trial court’s construction of section 320.77(14)(a) violates the policy of consumer protection clearly underlying the statute. Nothing in subsection (14)(a) refers to the place of sale. The plain meaning of the statute is that the bond protects a retail customer against conduct by a dealer which is violative of the provisions of Chapter 320. The sale of a mobile home in Orange County by FIU contrary to the license requirements of subsections (6) and (7), as cited by the appellee, is such a violation. Accordingly, we reverse and remand for further proceedings consistent with this opinion.

REVERSED and REMANDED.

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


text:
    Marty Ray BURCUM, Appellant, v. STATE of Florida, Appellee.
    No. 84-1234.
    District Court of Appeal of Florida, Fifth District.
    Jan. 24, 1985.
    James B. Gibson, Public Defender, and Michael S. Becker, Asst. Public Defender, Daytona Beach, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Sean Daly, Asst. Atty. Gen., Daytona Beach, for appellee.
   PER CURIAM.

DISMISSED.

See Robinson v. State, 373 So.2d 898 (Fla.1979).

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


text:
    James M. BARNETT, Appellant, v. STATE of Florida, Appellee.
    No. 84-1272.
    District Court of Appeal of Florida, Fifth District.
    Jan. 24, 1985.
    James B. Gibson, Public Defender, and Brynn Newton, Asst. Public Defender, Daytona Beach, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Richard W. Prospect, Asst. Atty. Gen., Daytona Beach, for appellee.
    James Marshall Barnett, pro se.
   PER CURIAM.

AFFIRMED. See Green v. State, 450 So.2d 1275 (Fla. 5th DCA 1984); Amlotte v. State, 435 So.2d 249 (Fla. 5th DCA 1983).

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


text:
    John MANGINA, et al., Petitioners, v. Lon S. CORNELIUS, Jr., Respondent.
    No. 84-1711.
    District Court of Appeal of Florida, Fifth District.
    Jan. 24, 1985.
    Thomas R. Rogers of Rogers & Associates, P.A., Longwood, for petitioners.
    Jim Smith, Atty. Gen., and Dean C. Kow-alchyk, Asst. Atty. Gen., Tallahassee, for respondent.
   ORFINGER, Judge.

The sworn motion and supporting affidavits seeking to disqualify respondent as trial judge in this civil action are legally sufficient. Where the motion is legally, sufficient, “the judge shall not pass on the truth of the facts alleged [and] shall enter an order of disqualification.” Rule 1.432, Fla.R.Civ.P.; section 38.10, Florida Statutes (1983). See Bundy v. Rudd, 366 So.2d 440 (Fla.1978) and State ex rel. Zacke v. Woodson, 399 So.2d 7 (Fla. 5th DCA 1981) which discuss the virtually identical Florida Rule of Criminal Procedure 3.230(d). Where the trial judge refuses to disqualify himself, prohibition is the proper remedy, Bundy, but on the basis of this opinion we assume the formal issuance of the writ will be unnecessary.

ORDERED ACCORDINGLY.

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


text:
    Charles Wade HAWTHORNE, Appellant, v. STATE of Florida, Appellee.
    No. AY-450.
    District Court of Appeal of Florida, First District.
    Jan. 24, 1985.

      Michael E. Allen, Public Defender, and Virginia Daire, Asst. Public Defender, Tallahassee, for appellant.
    Jim Smith, Atty. Gen. and Thomas H. Bateman, III, Asst. Atty. Gen., Tallahassee, for appellee.
   PER CURIAM.

This cause must be reversed on the authority of Gammon v. State, 451 So.2d 1042 (Fla. 1st DCA 1984), because in revoking probation, in part due to appellant’s failure to pay restitution, the trial court failed to make a specific finding that appellant had the financial ability to pay. Since this court cannot determine whether the trial court would have revoked probation solely on the basis of appellant’s other violation of probation, failure to perform community service, we reverse the appellant’s probation revocation and remand for a determination as to whether appellant had the financial ability to pay restitution. If the trial court finds that appellant could not pay, it must then determine whether appellant’s probation should be revoked and whether the same sentence should be imposed for his failure to perform community service.

Accordingly, this cause is reversed and remanded for further proceedings consistent herewith.

BOOTH and SHIVERS, JJ., and TILLMAN PEARSON (Ret.), Associate Judge, concur.


text:
    Thomas MacTAGGART, Appellant, v. STATE of Florida, Appellee.
    No. 84-982.
    District Court of Appeal of Florida, Second District.
    Jan. 25, 1985.
    James Marion Moorman, Public Defender, Bartow, and Deborah K. Brueckheimer, Asst. Public Defender, Clearwater, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Robert J. Krauss, Asst. Atty. Gen., Tampa, for appellee.
   PER CURIAM.

Upon review of the briefs and record on appeal, we find that appellant has failed to demonstrate reversible error; therefore, the appellant’s conviction is affirmed. However, we must remand to the trial court because of a clerical error in the court’s written judgment.

Appellant was found guilty of armed trespass. The written judgment, however, states his offense as burglary. The written judgment must be corrected to show that appellant was convicted of armed trespass, not burglary. Accordingly, we remand this cause to the trial court for correction of this error.

GRIMES, A.C.J., and SCHOONOVER and FRANK, JJ., concur.


author: RYDER, Chief Judge.

text:
    Betty Sue PREVATT, Appellant, v. Jimmy Carroll PREVATT, Appellee.
    No. 84-1034.
    District Court of Appeal of Florida, Second District.
    Jan. 25, 1985.
    Kenneth W. Beesting of Beesting & Beesting, Arcadia, for appellant.
    Anthony A. Accorsi, Avon Park, for ap-pellee.
   RYDER, Chief Judge.

The respondent wife in this dissolution proceeding appeals the final judgment awarding her $200.00 per month for thirty-six months as rehabilitative alimony. She also appeals the award of $500.00 for partial payment of her attorney’s fees and costs. We hold that the court abused its discretion in determining the amount of the alimony but affirm in all other respects.

The evidence adduced at the dissolution hearing was that the wife had suffered from mental illness — schizophrenia, paranoid type — which is currently in remission. Her psychiatrist testified that she would have difficulty holding a job because she might not show up for work or would resign. He did not say, however, that the wife is totally incapable of working, but that she could possibly undertake minimal and sheltered work with a benevolent employer who would allow her to miss work on occasion. The psychiatrist’s testimony strongly suggests that the wife will not be successful in finding and holding employment, but this court cannot substitute its judgment for the trial court’s and reweigh the evidence considered by the finder of fact. Helman v. Seaboard Coast Line Railroad Co., 349 So.2d 1187 (Fla.1977); Strawgate v. Turner, 339 So.2d 1112 (Fla.1976). Although we have serious reservations about the wife’s future ability to rehabilitate herself, this matter can be readdressed by the trial court upon proper motion by the wife after her experience has shown either success or failure, at or before the expiration of her rehabilitative alimony.

As to the amount of alimony awarded, we hold that the trial judge abused his discretion in awarding the wife such a paltry sum of money. The evidence shows that the husband’s gross income is $906.05 biweekly. He is a supervisor at Avon Park Correctional Institution, and he is provided with housing, electricity, gas and yard maintenance. The wife has no regular income, although she occasionally earns money by helping with her sister’s housework. Having reviewed all of the evidence in the record as to the husband’s ability to pay and the wife’s financial needs, including a monthly visit to her psychiatrist costing $90.00, we conclude that there is a clear abuse of discretion in the amount of alimony awarded. We remand this case for the trial judge to hold another hearing and to award the wife no less than $400.00 per month.

Finally, we affirm the trial court’s award of $500.00 to the wife for partial attorney’s fees and costs. The wife presented no evidence on attorney’s fees at the hearing except the cost for expert testimony by the wife’s psychiatrist. The trial court received no other evidence as to services performed by the attorney or the value thereof, and, therefore, the award of $500.00 was proper. See Pearce v. Pearce, 363 So.2d 1146 (Fla. 2d DCA 1978); Nivens v. Nivens, 312 So.2d 201 (Fla. 2d DCA 1975).

Affirmed in part; reversed in part.

GRIMES and SCHOONOVER, JJ., concur.


author: SCHOONOVER, Judge.

text:
    HOME HEALTH SERVICES OF SARASOTA, INC., a Florida corporation, Appellant, v. McQUAY-GARRETT, SULLIVAN & COMPANY, a Florida corporation, Appellee.
    No. 84-1079.
    District Court of Appeal of Florida, Second District.
    Jan. 25, 1985.

      R. Stephen Houpe, Sarasota, for appellant.
    Fred L. Buckine of Johnson & Buckine, P.A., Tampa, for appellee.
   SCHOONOVER, Judge.

The appellant, Home Health Services of Sarasota, Inc., a Florida corporation, appeals from a final summary judgment entered in favor of the appellee, McQuay-Gar-rett, Sullivan & Company, a Florida corporation. We reverse.

Appellee filed an action against the appellant seeking damages, on an account stated, in the amount of $26,449. In its responsive pleading, appellant alleged as one of its affirmative defenses that it was entitled to a set-off for sums it had paid to appellee’s agent.

Appellee filed a motion for summary judgment. A portion of one of appellee’s affidavits filed in support of the motion stated that $26,449 was due on the account and that there existed no known set-offs to the account. Appellant’s affidavit in opposition to the motion stated that, in addition to the amounts paid directly to appellee for which it had received credit on the account, it had paid $13,650 on the account to appel-lee’s authorized agent. The trial court found that the appellee had established an account stated and that the appellant’s affirmative defenses and supporting affidavit did not raise a genuine issue of material fact. A summary judgment was entered in favor of the appellee, and the appellant filed a timely notice of appeal.

We find that the record reflects the existence of a genuine issue of material fact concerning partial payment; accordingly, we hold that the trial court erred in awarding a summary judgment to the ap-pellee. See Monroe v. Appelton, 419 So.2d 356 (Fla. 2d DCA 1982); Krest-View Nursing Home, Inc. v. Sokolow, 177 So.2d 775 (Fla. 3d DCA 1965).

The trial court properly held that an account stated had been established. See Merrill-Stevens Dry Dock Co. v. “Corniche Express," 400 So.2d 1286 (Fla. 3d DCA 1981); Dutch Inns of America, Inc. v. Jenkins, 301 So.2d 119 (Fla. 3d DCA 1974). An account stated is prima facie evidence of the correctness of the items it contains and of the liability of a party for those items. One claiming under an account stated is not entitled, however, to the benefit of an absolute estoppel. The presumption of correctness may be overcome by proof of fraud, mistake, or error. The burden of establishing those defenses is on the party asserting them, and unless that party carries the burden, the presumptive correctness of the account stated becomes conclusive. Gendzier v. Bielecki, 97 So.2d 604 (Fla.1957).

Appellant’s pleading and affidavit do not specifically allege error or mistake, but where affidavits submitted pursuant to a motion for summary judgment show that a genuine issue of material fact exists, we should look beyond the issues presented in the pleadings. A party should not be deprived of his full day in court if the record indicates that he has a bona fide potential defense. Beckerman v. Greenbaum, 347 So.2d 141 (Fla. 2d DCA 1977). If the appellant, at trial, can prove that it made payments to an authorized agent of appellee and that because of mistake or error these payments were not credited to its account, proper credit should be given. Withers v. Sandlin, 44 Fla. 253, 32 So. 829 (1902).

Reversed and remanded for proceedings consistent herewith.

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


text:
    James Leroy CROSBY, Appellant, v. STATE of Florida, Appellee.
    No. 84-1110.
    District Court of Appeal of Florida, Second District.
    Jan. 25, 1985.
    James Marion Moorman, Public Defender, and Paul C. Helm, Asst. Public Defender, Bartow, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Theda James Davis, Asst. Atty. Gen., Tampa, for appellee.
   SCHOONOVER, Judge.

Appellant, James Leroy Crosby, has appealed from the judgments and sentences entered against him in connection with two informations charging him with burglary of a dwelling in violation of section 810.-02(3), Florida Statutes (1979). We affirm in part and reverse in part.

On October 1,1980, appellant was adjudicated guilty of both charges, and pursuant to the Florida Youthful Offender Act, chapter 958 Florida Statutes (1979), concurrent sentences of four years imprisonment followed by two years probation in a community control program were imposed upon him. On March 26, 1984, appellant was found guilty of violating his probation. Appellant’s probation was revoked, and he was sentenced to serve concurrent sentences of eight years imprisonment on each of the original charges. Appellant then filed a timely notice of appeal.

We reject appellant’s contention that the trial court did not have jurisdiction to hear and determine this matter. After a youthful offender has been sentenced under the Youthful Offender Act, the circuit court has jurisdiction to impose sanctions against him for violating the terms of his community control program. Loveless v. Bryson, 460 So.2d 942 (Fla. 2d DCA 1984); accord Clem v. State, 462 So.2d 1134 (Fla. 4th DCA 1984); Bradley v. State, 462 So.2d 24 (Fla. 5th DCA 1984).

We agree with appellant’s contention that the trial court erred in imposing two eight-year sentences for his violation of community control. Once a party is classified as a youthful offender, the trial court must sentence the party in accordance with the Youthful Offender Act. Waugh v. State, 406 So.2d 1238 (Fla. 2d DCA 1981). Pursuant to the Act, a defendant can be sentenced to a maximum of four years of incarceration (with appropriate jail credit), and to a maximum of two years of community control. § 958.05(2), Fla.Stat. (1983); Ellis v. State, 436 So.2d 342 (Fla. 1st DCA 1983), pet. for rev. den., 443 So.2d 980 (Fla.1984). Since the sentences imposed upon the appellant exceed the maximum allowed by the Youthful Offender Act, the court erred in imposing them.

We, accordingly, affirm the judgments entered herein but remand to the trial court for resentencing pursuant to the Florida Youthful Offender Act. Waugh.

Reversed and remanded for proceedings consistent herewith.

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