author: BERANEK, Judge.

text:
    William A. REID, Appellant, v. Demetria REID, Appellee.
    No. 77-1698.
    District Court of Appeal of Florida, Fourth District.
    Dec. 27, 1978.

      Joseph A. Rosier, Orlando, for appellant.
    Kendall T. Moran, Titusville, for appellee.
   BERANEK, Judge.

This is an appeal by the husband from a final judgment in a dissolution of marriage proceeding. The marriage lasted 26 years and at the time of the dissolution two minor children were the subject of a custody dispute. The trial court split the custody of these children with the wife receiving custody of the younger child.

The court awarded the wife child support of $25.00 per week and periodic alimony of $25.00 per week until such time as the younger child reached the age of 18. At that point the wife’s alimony was to be increased $25.00 per week so that she would still receive the same total sum of $50.00 per week. The final judgment also ordered that if custody of the younger child were ever transferred to the husband, that the wife’s alimony would automatically increase by $25.00 per week. The court also awarded to wife the husband’s interest in the parties’ jointly owned homeplace as lump sum alimony and ordered that the wife receive all furnishings in the home as lump sum alimony. We find the awards of peri-odie and lump sum alimony erroneous and reverse.

The award of periodic alimony was in the form of an automatic increase of $25.00 per week based on the happening of either of two events. If the child in the wife’s custody were to be transferred to the husband, then the wife’s alimony would be increased. Alternatively, if this child reached 18 while still in the wife’s custody, alimony was to increase. Although there may be circumstances in which a predetermined automatic increase in alimony is proper, the instant facts are not such a case. Here, the husband will be paying the same amount whether the wife has custody of the minor child or not, and will be paying the same amount when child support would regularly terminate on the child’s 18th birthday. The court’s order merely redesig-nates the amount as alimony rather than child support. We find this to be error and reverse. See Richter v. Richter, 344 So.2d 889 (Fla. 4th DCA 1977).

The trial court also awarded the wife the husband’s interest in the jointly owned homeplace as lump sum alimony. Before the wife can be awarded the husband’s interest as lump sum alimony, there must be a positive showing of necessity on her part, as well as the financial ability of the husband to meet that necessity. Gesford v. Gesford, 337 So.2d 1017 (Fla. 4th DCA 1976). In this case the marital home was owned free and clear without a mortgage and the transfer of this asset to the wife left the parties in a strikingly disproportionate financial situation. This is particularly true in view of the fact that each party had custody of one child. Here the wife worked in a drug store and the husband was employed as an air conditioning mechanic and their contributions to the home were not disproportionate. The court had denied the wife’s claims of a special equity in the home. Indeed, it appears that the award of the house was not motivated by traditional concepts of alimony. Appel-lee argues before this court that the reason for the award of lump sum alimony in the form of the house was because the parties were too hostile toward each other to own the property jointly. Although realistically appealing, we do not find it to be a sufficient reason to uphold the award. The lump sum alimony law of this State is still to the effect that the court cannot make a property settlement for the parties. See Palmer v. Palmer, 330 So.2d 839 (Fla.2d DCA 1976) and Owen v. Owen, 284 So.2d 384 (Fla.1973). Therefore, the award of lump sum alimony is reversed and the matter remanded to the trial court for further proceedings consistent herewith.

REVERSED AND REMANDED.

MOORE, J., and FRANZA, ARTHUR J., Associate Judge, concur.


source: Caselaw Access Project

license: Public Domain

text:
    Martin B. COHEN, Appellant, v. STATE of Florida, Appellee.
    No. 77-1963.
    District Court of Appeal of Florida, Fourth District.
    Dec. 27, 1978.
    Richard L. Jorandby, Public Defender, and Tatjana Ostapoff, Asst. Public Defender, West Palm Beach, for appellant.
    Robert L. Shevin, Atty. Gen., Tallahassee, and Charles A. Stampelos, Asst. Atty. Gen., West Palm Beach, for appellee.
   BERANEK, Judge.

Defendant had previously been adjudicated guilty of delivery of a controlled substance and was placed on probation for a term of three years. Defendant was subsequently charged with violating his probation and after hearing was found to be in violation of his probation. This appeal contests the violation holding. The violation of probation was based on findings that defendant was guilty of delivery of heroin and on the further ground that defendant was in violation of § 945.30 Fla.Stat. for failure to pay the costs of his supervision.

We find no error and affirm the conviction based upon the charge of delivery of heroin. We must, however, reverse the finding in regard to the cost of supervision. There was no evidence or finding regarding the defendant’s ability to make the payment on which he allegedly defaulted. Robbins v. State, 318 So.2d 472 (Fla.4th DCA 1975). Further, this finding was based solely upon hearsay evidence. Sharp v. State, 303 So.2d 56 (4th DCA 1974); White v. State, 301 So.2d 464 (Fla.1st DCA 1974). For both of these reasons, the violation regarding defendant’s failure to pay cost of supervision was improper and is hereby reversed.

The conviction is affirmed based upon the criminal violation of delivery of heroin. The finding regarding cost of supervision is reversed and the cause is remanded to the trial court for resentencing in light of this reversal.

AFFIRMED IN PART AND REVERSED IN PART. REVERSED WITH DIRECTIONS.

DAUKSCH and MOORE, JJ., concur.


text:
    Edward Rocky GARDNER, Appellant, v. STATE of Florida, Appellee.
    No. 77-2155.
    District Court of Appeal of Florida, Fourth District.
    Dec. 27, 1978.

      Richard L. Jorandby, Public Defender, and Marc E. Kirk, Asst. Public Defender, West Palm Beach, for appellant.
    Robert L. Shevin, Atty. Gen., Tallahassee, and Benedict P. Kuehne, Asst. Atty. Gen., West Palm Beach, for appellee.
   BERANEK, Judge.

Defendant was initially placed on three years’ probation following a plea of guilty to the crime of aggravated assault. Defendant was subsequently found to be in violation of probation and sentenced to five years in prison. This appeal questions the validity of the violation of probation. We reverse.

The original order placing defendant on probation required as a condition of probation that he spend six months in the county jail. In addition, the standard conditions of probation were imposed plus certain other special conditions. Most all of the conditions contemplated definite supervision by a probation officer.

Two weeks after the original order the trial court entered an order modifying probation. This order released the defendant from jail and placed him in the custody of his mother. The order stated that probation was to be unsupervised. The order also stated that the defendant had indicated that he wished to return to the State of Missouri and not remain in Florida.

The original order of probation was entered March 15, 1977, and the modification order was entered on March 29, 1977. Defendant was charged within a single affidavit of violating the modified order in not returning to Missouri and with being in possession of a firearm in violation of a condition imposed in the initial order.

After hearing, the trial court found defendant to be in violation of his probation because he had not gone to Missouri and because he was in possession of a .22 caliber rifle.

A condition of probation must be sufficiently definite to advise the defendant of the limits of the restriction. Almond v. State, 350 So.2d 810 (Fla. 4th DCA 1977). A condition which is so vague that the defendant cannot reasonably know what lawful acts he is prohibited from doing is invalid. A person on probation is still entitled to some but not all of the traditional rights of due process. Gagnon v. Scarpelli, 411 U.S. 778, 93 S.Ct. 1756, 36 L.Ed.2d 656 (1973), and Morrissey v. Brewer, 408 U.S. 471, 92 S.Ct. 2593, 33 L.Ed.2d 484 (1972). Here, the condition regarding defendant’s return to Missouri was at best vague and ambiguous. There was no definite order that he move his residence in any specific time frame. Further, the transcript of evidence before the trial court shows that the defendant in fact loaded his family into his station wagon and left for Missouri shortly after the order was entered. After he had traveled a short distance, his car sustained a brake failure and he called a friend who came and towed the car home. Defendant then attempted to repair the car but was unsuccessful before being arrested for failing to leave Florida. All of the evidence overwhelmingly showed that the defendant was making reasonable efforts to reach Missouri. Defendant had been released from jail on April 1, 1977, and he was arrested for still being in Florida on April 15, 1977. He was still trying to repair his car when arrested. We reverse the trial court’s finding in this regard because the condition of probation was not sufficiently definite to advise the defendant that he had to return to Missouri under pain of violation. Furthermore, assuming the condition valid, the evidence did not show that he failed to comply with it willfully.

Defendant was also found to be in violation of his probation because he was in possession of a firearm. This finding suffers from the same defects. The two probation orders resulted in an impermissibly vague set of conditions with respect to firearms. The initial order contained the following:

“(3) You will neither' possess, carry or own any weapon or firearm without first securing the consent of your probation supervisor.
“(10) You will not own, use or have in your possession any weapons.”

The order modifying probation placed defendant in the custody of his mother and released him entirely from official supervision. The second order invalidated most of the standard conditions contained in the first order since most conditions were dependent upon participation of a probation officer. Here the defendant could not have known which conditions lapsed. In addition, the evidence presented is once again legally insufficient to find defendant in violation of probation for possession of a firearm even if a valid condition continued to exist.

The conviction below is reversed and the defendant is to be discharged from prison and restored to the status of probation under appropriate conditions to be imposed by the trial court upon remand.

REVERSED AND REMANDED.

DAUKSCH and MOORE, JJ., concur.


author: PER CURIAM.

text:
    ALLSTATE INSURANCE COMPANY, Appellant, v. Barbara J. CZARNECKI and Chester J. Czarnecki, Appellees.
    No. 77-2367.
    District Court of Appeal of Florida, Fourth District.
    Dec. 27, 1978.
    Robert D. McAliley of Brennan, McAliley, Albury & Hayskar, West Palm Beach, for appellant.
    Larry Klein and Phillips, Babbitt & Cook,. West Palm Beach, for appellees.
   PER CURIAM.

■ The summary judgment in favor of ap-pellees is reversed on the authority of Dewberry v. Auto-Owners Insurance Company, 363 So. 1077 (Fla.1978).

REVERSED and REMANDED.

DAUKSCH, MOORE and BERANEK, JJ., concur.


author: DOWNEY, Chief Judge.

text:
    Edmund R. FISHER, a/k/a “Buster”, Appellant, v. STATE of Florida, Appellee.
    No. 78-851.
    District Court of Appeal of Florida, Fourth District.
    Dec. 27, 1978.

      Richard S. Rhodes, Orlando, for appellant.
    Robert L. Shevin, Atty. Gen., Tallahassee, and Kenneth G. Spillias, Asst. Atty. Gen., West Palm Beach, for appellee.
   DOWNEY, Chief Judge.

Appellant, Fisher, seeks reversal of his conviction as an aider and abettor in the burglary of a dwelling. The sole point on appeal is whether the evidence was sufficient to support the conviction. We find that it was not.

The evidence showed that appellant Fisher and Ralph Barrow were roommates. Barrow asked Fisher to drive him to Curry Ford Road. On the way they stopped and picked up Donald Pridemore. Fisher dropped Barrow and Pridemore off on Curry Ford Road about Vi mile from a house which Barrow and Pridemore subsequently burglarized. Upon leaving the car Barrow told Fisher to meet him and Pridemore about an hour later at Econlochlatchee Trail. At the appointed time and place Fisher picked up Barrow and Pridemore. They had no contraband with them at the time. Barrow and Pridemore had stolen a number of guns from the dwelling in question and had wrapped them in a blanket and left them in some woods nearby. Later on that day Barrow and Pridemore borrowed Barrow’s cousin’s car and picked up the guns which they were attempting to sell when they were arrested.

The only evidence indicating that Fisher had any knowledge there was going to be a burglary is Pridemore’s testimony. He was asked whether Fisher knew of their plan to burglarize the dwelling when Fisher picked up Barrow and Pridemore. Pridemore testified: “Yes, I reckon he did.” He was then asked, “What makes you say that?”

A: “Well, I guess he did know, you know, if he was going to give us a ride down there.”

Pridemore also testified as follows:

Q: “Was anything said in the car at that time? Try to think back to that time, and remember as best you can.
A: “I said ‘we got the guns, I reckon’.”

There is no other evidence that Fisher knew of the plan to steal the guns or that after the burglary he knew anything had been stolen except Pridemore’s statement that “we got the guns, I reckon.” Nor was Fisher’s car used later on to pick up the contraband or in the attempt to dispose thereof.

Before an accused may be convicted as an aider and abettor his intent to participate in the crime must be proved. Douglas v. State, 214 So.2d 653 (Fla.3d DCA 1968). Inasmuch as the evidence of guilt rests solely upon circumstantial evidence, the proof must be not only consistent with guilt but inconsistent with any other reasonable hypothesis. Lockett v. State, 262 So.2d 253 (Fla.4th DCA 1972). The evidence adduced at trial fails to exclude all reasonable hypotheses of innocence and is therefore inadequate to convict appellant as an aider and abetter.

Accordingly, the judgment and sentence appealed from is reversed and the cause is remanded with directions to discharge the appellant.

REVERSED AND REMANDED WITH DIRECTIONS.

CROSS and BERANEK, JJ., concur.


text:
    Mack HARVEY, Appellant, v. STATE of Florida, Appellee.
    No. 77-368.
    District Court of Appeal of Florida, Second District.
    Dec. 27, 1978.
    Jack 0. Johnson, Public Defender, and Daphne W. Boswell, Asst. Public Defender, Bartow, for appellant.
    Robert L. Shevin, Atty. Gen., Tallahassee, and Richard G. Pippinger, Asst. Atty. Gen., Tampa, for appellee.
   PER CURIAM.

The judgments appealed are affirmed, but this case is remanded for resentencing of appellant.

Appellant was charged with and convicted of separate counts of possession and sale of cocaine in each of the three informations filed against him and an additional count of conspiracy to deliver cocaine in one of the informations. Yet he was given only a single prison sentence on each multicount information.

The imposition of a single judgment and sentence upon a defendant lawfully found guilty of two or more separate crimes is improper. Dorfman v. State, 351 So.2d 954 (Fla.1977); Darden v. State, 306 So.2d 581 (Fla.2d DCA 1975); see also Dar-den v. State, 330 So.2d 750 (Fla.2d DCA 1976). Although the charges filed against appellant in each information arose out of a single • criminal episode, Section 775.021, Florida Statutes (1977), applies to the situation presented here, requiring a judgment and sentence to be imposed upon each criminal charge and conviction. Fundak v. State, 362 So.2d 295 (Fla.2d DCA 1978).

Accordingly, the judgments of guilt as to all of the charges are affirmed, but the cause is remanded for entry of a separate judgment and sentence on each conviction.

GRIMES, C. J., and BOARDMAN and SCHEB, JJ., concur.


author: OTT, Judge.

text:
    Thomas Blanton SMITH, Jr., Appellant, v. STATE of Florida, Appellee.
    No. 78-276.
    District Court of Appeal of Florida, Second District.
    Dec. 29, 1978.
    Jack 0. Johnson, Public Defender, Bar-tow, and Wayne Chalu, Asst. Public Defender, Tampa, for appellant.
    Robert L. Shevin, Atty. Gen., Tallahassee, and Michael A. Palecki, Asst. Atty. Gen., Tampa, for appellee.
   OTT, Judge.

Thomas Blanton Smith, Jr. appeals contending that he was improperly sentenced. We agree and reverse.

Mr. Smith was charged in Pinellas County, Florida on May 13, 1974 with four counts of kidnapping contrary to § 805.01, Fla.Stat. (1973). Violation of that section — a felony of the second degree — was punishable by a 15 year term of imprisonment.

The charges could not be disposed of until early in 1978 since appellant was either mentally incompetent to stand trial or being held for trial in other Florida counties.

. On January 25, 1978 appellant was sentenced to four concurrent 25 year terms of imprisonment. However, as noted above, the maximum sentence appellant could lawfully receive on each charge was 15 years. There may have been some confusion in that § 787.01, Fla.Stat. (1977) — the statute in force at the time of sentencing — punished kidnapping as a life felony.

Appellant must be resentenced to a term of imprisonment not exceeding 15 years per count. The new sentence may not exceed the 25 year total under the previous sentence.

Remanded for resentencing of appellant.

RYDER and DANAHY, JJ., concur.


text:
    Emmett GRACE, Appellant, v. STATE of Florida, Appellee.
    No. 78-453.
    District Court of Appeal of Florida, Second District.
    Dec. 29, 1978.

      Jack 0. Johnson, Public Defender, Paul C. Helm, Asst. Public Defender, and David Wm. Boone, Legal Intern, Bartow, for appellant.
    Robert L. Shevin, Atty. Gen., Tallahassee, and Michael A. Palecki, Asst. Atty. Gen., Tampa, for appellee.
   PER CURIAM.

We affirm appellant’s conviction, but we remand the case so that the trial court may set aside the order assessing costs against appellant. Since the court had adjudged appellant to be insolvent, it was not authorized to assess costs against him. Section 939.15, Florida Statutes (1977); Cox v. State, 334 So.2d 568 (Fla.1976).

GRIMES, C. J., and SCHEB and DAN-AHY, JJ., concur.


text:
    John MONTS, Appellant, v. STATE of Florida, Appellee.
    No. 78-997.
    District Court of Appeal of Florida, Second District.
    Dec. 29, 1978.
    Jack 0. Johnson, Public Defender, Bar-tow, and William Murphy, Asst. Public Defender, Tampa, for appellant.
    Robert L. Shevin, Atty. Gen., Tallahassee, and Richard G. Pippinger, Asst. Atty. Gen., Tampa, for appellee.
   PER CURIAM.

We affirm appellant’s conviction, but we remand the case so that the trial court may set aside the order assessing costs against appellant. Since the court had adjudged appellant to be insolvent, it was not authorized to assess costs against him. Section 939.15, Florida Statutes (1977); Cox v. State, 334 So.2d 568 (Fla.1976).

GRIMES, C. J., and SCHEB and DAN-AHY, JJ., concur.


text:
    In re Mary Walker Wallace MALONE.
    No. 78-1136.
    District Court of Appeal of Florida, Second District.
    Dec. 29, 1978.

      Davis G. Anderson, Jr., Tampa, for appellant.
    Donald A. Pleasants of Shackleford, Far-rior, Stallings & Evans, P. A., Tampa, for appellee.
   PER CURIAM.

Mary Walker Wallace Malone appeals her adjudication as an incompetent. Because we find the notice of appeal untimely, we must dismiss the appeal.

On September 20, 1977, hearings having been held in July and earlier in September, a written petition was filed alleging appellant to be incompetent and seeking to have a guardian appointed for her. On the same day the trial court entered an order issuing letters of guardianship. On September 26, 1977, appellant through her present attorney filed a petition for a rehearing of the cause on the ground, inter alia, that it was error to adjudicate appellant incompetent while she was not represented by counsel. The petition for rehearing was denied on December 14, 1977. Notice of appeal was filed on January 13, 1978, more than 30 days after the entry of the original order issuing letters of guardianship, but within 30 days of the rehearing denial.

The Rules of Probate and Guardianship Procedure do not permit a petition for rehearing directed to an order issuing letters of guardianship. Accordingly, the pendency of such a petition did not toll the time for filing notice of appeal under Rule 3.2(b), Florida Appellate Rules. Wagner v. Bieley, Wagner & Associates, Inc., 263 So.2d 1 (Fla.1972). This appeal is therefore untimely and must be dismissed. The dismissal is, of course, without prejudice to appellant’s filing a petition for habeas corpus or otherwise seeking appropriate relief.

HOBSON, A. C. J., and OTT and DAN-AHY, JJ., concur.

      . This appeal is governed by the 1962 revision of the Florida Appellate Rules. The counterpart of former Rule 3.2(b) in the 1977 revision of the Florida Rules of Appellate Procedure is Rule 9.110(b).


text:
    The CANAL AUTHORITY of the State of Florida, a body corporation under the laws of the State of Florida, Appellant, v. OCALA MANUFACTURING COMPANY (Non Inc.), Appellee.
    No. HH-461.
    District Court of Appeal of Florida, First District.
    Jan. 3, 1979.
    Rehearing Denied Jan. 30, 1979.

      Ralph E. Elliott, Jr. and Frank C. Decker, Jacksonville, for appellant.
    C. Ray Greene, Jr. of Greene & Greene, R. Lee Smith of Smith, Davenport, Peek & Bloom, Jacksonville, for appellee.
    Alan B. Fields, Jr. of Dowda & Fields, Palatka, for amicus curiae, Board of County Commissioners of Putnam County, Florida.
    Robert L. Shevin, Atty. Gen., J. Kendrick Tucker, Asst. Atty. Gen., Nancy G. Linnan, Wings Benton, Tallahassee, for amicus curiae, Reubin O’D. Askew, Governor, as head of the State of Florida, Department of Natural Resources.
   PER CURIAM.

Appellant, which was defendant in the trial court, here seeks reversal of an adverse final judgment entered by the learned trial judge in favor of the plaintiff, appellee here. The final judgment here appealed provides as follows:

“This Cause came on to be heard before the Court and the Court having received evidence and considered Argument of Counsel finds as follows:
“1. That the Plaintiff and Defendant entered into an Agreement on September 26, 1968 which was subsequently amended on November 25, 1968 to convey certain property owned by the Plaintiff as right-of-way for the construction and maintenance of the Cross-Florida Barge Canal in consideration of the sum of $476,200.
“2. That it was represented to the Plaintiff by the Defendant that the lands described in the Agreement would be used as a part of the Eureka Pool of the Cross-Florida Barge Canal Project and would provide the remaining lands of the Plaintiff with proximity to the Eureka Pool which would specifically enhance the value of the remaining 4,000 acres of contiguous land owned by the Plaintiff.
“3. That simultaneously with the execution of the Agreement to Convey on September 26, 1968, the Plaintiff also executed in favor of the Defendant a right-of-entry for construction.
“4. That on December 9, 1968, based upon the representations of the Defendant that the Eureka Pool would be created by the construction of the Cross-Florida Barge Canal within a reasonable period of time and in consideration of the payment by the Defendant to the Plaintiff, the sum of $62,313 for the land and the sum of $416,587 for the timber and in consideration of the sum of $2,300 in severance damages to that part of the remaining lands which would not be enhanced by having proximity to the Eureka Pool, the Plaintiff conveyed to the Defendant by Deed, 1,708.74 acres of land and the timber thereon.
“5. That subsequent to the conveyance to the Defendant on December 9, 1968, the Defendant has harvested or sold timber of the value of $80,351.50.
“6. That, except for the representations of the Defendant which the Plaintiff believed and upon which the Plaintiff relied concerning the creation of the Eureka Pool and the construction of the Cross-Florida Barge Canal, thereby specifically enhancing the value of the remaining 4,000 acres of land of the Plaintiff, the Plaintiff would not have conveyed the lands described in the Agreement and Deed.
“7. That the Defendant is in possession of the lands described in the Agreement and Deed and has not conveyed said lands to any other party. That almost nine years has elapsed since the execution of the Agreement to purchase the rights-of-way and the Deed conveying the rights-of-way and no part of the Eureka Pool has been constructed. The failure to receive the enhancement in value to its remaining lands by the creation of the Eureka Pool and construction of the Cross-Florida Barge Canal amounts to a constructive fraud by the Defendant upon the Plaintiff requiring the cancellation and recision of the conveyance upon certain conditions being met.
“It is therefore ordered and adjudged: “1. That upon the happening of any of the following events:
“A. That Congress of the United States of America deauthorizes the Cross-Florida Barge Canal Project.
“B. The United States Congress fails to appropriate funds for the construction of the Cross-Florida Barge Canal and the Eureka Pool, within four years from the date hereof.
“C. The legislature of the State of Florida abolishes the Defendant or attempts to transfer its assets in conjunction with such abolishment or otherwise.
“D. The legislature of the State of Florida enacting legislation prohibiting the construction of the Cross-Florida Barge Canal and the Eureka Pool.
“The title to the following described lands to wit:
[lengthy legal description] shall revest in the Ocala Manufacturing Company, successor in interest to Ocala Manufacturing, Ice & Packing Company, upon the deposit in the registry of this Court of the sum of $395,848.50.
“DONE AND ORDERED in Ocala, Marion County, Florida, this 28th day of September, 1977.”

The record on appeal reveals sufficient competent evidence to sustain the factual recitals contained in the final judgment and those necessarily implicit in the legal conclusions reached.

Because this opinion has considerable potential impact both on the law of contracts and eminent domain and on the disposition of other existing and future claims arising out of the suspension of the Cross-Florida Barge Canal, and associated improvements, we deem it appropriate to mention the particular features of the case which influence our decision.

The trial court has ordered the reconveyance of lands deeded by Ocala Manufacturing, Ice & Packing Company, Inc., to the Canal Authority on December 6, 1968. That conveyance is to be effected upon the happening of one of several events which will finally terminate the canal project, or upon the failure of a federal appropriation to carry on the project by September 28, 1981. In return, Ocala Manufacturing Company, successor to the grantor corporation, is to repay the purchase price it received in the 1968 transaction, less the value of timber harvested by the Canal Authority in the interim.

Several serious questions are presented on this appeal by the Canal Authority and its supporting amicus, the Governor. Yet, from the appearance of the 46-page transcript of the final hearing before a trial judge who theretofore was unfamiliar with the case, the Canal Authority assumed its present adversary position only after the final judgment was entered. On several of the questions now extensively briefed by the Canal Authority and its supporting ami-cus, the Canal Authority was acquiescent or silent before the trial court. It is inappropriate that we disturb a judgment rendered in those circumstances.

Whether the rescission is viewed as ordered for “constructive fraud,” or for failure of consideration, or for impossibility of performance, the trial court’s judgment is not contrary to Canell v. Arcola Housing Gorp., 65 So.2d 849 (Fla.1953) nor violative of the statute of frauds, Section 725.01, Florida Statutes (1977). The agreement for conveyance and the deed itself contained sufficient references to the “Eureka Pool” and its contours, as established by the taking line, to remove the agreement from the effect of the statute. All other potential issues went by the board in the trial court.

AFFIRMED.

BOYER, Acting C. J., and SMITH and BOOTH, JJ., concur.


author: PER CURIAM. SMITH, Judge,

text:
    Gregory PAUL, Appellant, v. STATE of Florida, Appellee.
    No. II-138.
    District Court of Appeal of Florida, First District.
    Jan. 3, 1979.
    Michael J. Minerva, Public Defender, Michael M. Corin and Louis G. Carres, Asst. Public Defenders, for appellant.
    Robert L. Shevin, Atty. Gen., and Richard W. Prospect, Asst. Atty. Gen., for appellee.
   PER CURIAM.

This is an appeal from judgments of conviction entered on jury verdicts finding the appellant guilty: (1) As to victim # 1 (case # 77 — 425), of attempted sexual battery and threatening to use force or violence likely to cause serious personal injury; (2) As to victim # 2 (case # 77-560), of sexual battery and threatening to use force or violence likely to cause serious personal injury. Sentences were imposed of ten years on offense (1) and twenty-five years on offense (2), the sentences to run concurrently. As to victim # 3, the jury returned a verdict of not guilty on charges of battery and attempted sexual battery.

The question presented is whether the trial court abused its discretion in granting, over the appellant’s objection, the State’s motion for consolidation for trial of the charges as to all three victims. The charges as to victims 2 and 3 were joined in a single information, without objection.

Florida Rules of Criminal Procedure, Rule 3.151, states the basic guidelines for consolidation for trial of offenses charged in two or more informations, as follows:

“(a) For purposes of these Rules, two or more offenses are related offenses if they are triable in the same court and are based on the same act or transaction or on two or more connected acts or transactions.
(b) Two or more indictments or informa-tions charging related offenses shall be consolidated for trial on a timely motion by a defendant or by the state.[] The procedure thereafter shall be the same as if the prosecution were under a single indictment or information . . . ” (e. s.)

The trial court has discretion as to whether a motion for consolidation made in accordance with the foregoing rule shall be granted. The general rule is stated as follows:

“In any case, the propriety of trying together several indictments or informa-tions against the same accused over his objection rests in the sound discretion of the trial court, which has the obligation to safeguard not only the rights of the government but also of the accused and to see that such rights are not jeopardized . . . ”

In Ashley v. State, 265 So.2d 685, 688 (Fla. 1972), the Florida Supreme Court held:

“It is well recognized that the consolidation for trial of criminal cases rests within the sound discretion of the trial court. Baker v. Rowe, 102 Fla. 622, 136 So. 681; Hall v. State (Fla.) 66 So.2d 863 . . ”

This Court in Blackwelder v. State, 100 So.2d 834 (Fla. 1st DCA 1958) held:

“Trial judges have discretionary power to order consolidation of criminal cases involving two or more informations relating to similar or connected offenses. Hall v. State, Fla., 66 So.2d 863 . .”

Factors properly considered in ruling on a motion to consolidate include, but are not limited to, similarity of facts and issues, factors indicating a common scheme or a continuing course of conduct under a single plan or that the offenses grew out of the same chain of circumstances. The party objecting to the consolidation must show prejudice resulting from the granting of the motion.

Here, the motion of the State for consolidation demonstrated that the infor-mations charged related acts and we find no abuse of discretion in granting that motion. We note that each of the three crimes was committed at approximately 5 a. m. on a Saturday morning on an upper floor of a girls’ dormitory; that the assailant waited for each victim inside or in the immediate vicinity of the dormitory shower room and that his threats and actions toward each victim bore significant similarities. These circumstances, stated in the State’s motion were sufficient to indicate a common plan and perpetrator connecting the offenses.

Victim # 1 was attacked on April 9 in McGuinn Hall on the FAMU campus as she was leaving the shower room. By April 12, appellant was a suspect and he was arrested April 14. Local law enforcement officials were unaware that appellant was on 10-year probation for aggravated battery committed in another part of the state, and he was admitted to bail. On May 14, while appellant was out on bond, and released from custody, victims # 2 and # 3 were attacked on the FSU campus in shower room areas in DeGraff and Gilchrist dormitories, respectively. Six days later, on May 20, victim # 2 identified appellant as her assailant, picking him out of a group of people at a presentation at the FAMU campus auditorium. Appellant was arrested the following day. In addition to their independent identifications of appellant pri- or to trial, victims # 1 and # 2 testified at trial and each withstood cross-examination without significant impeachment as to the identity of the assailant.

Victim # 3 was never able to identify her assailant other than by general description and clothing worn. The jury found this evidence insufficient and acquitted appellant of the charges in connection with victim # 3.

No contention is made here that the evidence was insufficient to support the convictions, or that any error, other than consolidation, occurred at trial. Nevertheless, we have reviewed the transcript and record in this ease and find that the case was well and fairly tried, with the evidence overwhelmingly supporting the verdicts of the jury.

The other point on appeal is the alleged abuse of discretion by the trial court in failing to certify appellant for examination and hearing pursuant to Florida Statute Chapter 917 as a mentally disordered sex offender. No effort was made by appellant to establish the criteria of § 917.-13(1) and we find no abuse of discretion in the trial court’s ruling on this point.

Accordingly, the judgments below are AFFIRMED.

BOYER, Acting C. J., and BOOTH, J., concur.

SMITH, J., dissents.

SMITH, Judge,

dissenting:

Paul appeals from convictions in the Circuit Court of Leon County on information No. 77-425, charging attempted sexual battery by vaginal or anal rape of a young woman resident of a Florida A & M dormitory early in the morning of April 9, 1977, and on count one of information No. 77-560, charging sexual battery by vaginal and anal rape of another young woman resident of a Florida State University dormitory about 5:00 a. m. on May 14, 1977. Counts two and three of No. 77-560 charged attempted sexual battery and battery of still another young woman visitor to another Florida State dormitory on the same early morning, May 14, 1977; and on counts two and three, lacking positive identification testimony, the jury acquitted Paul.

The informations were consolidated for trial on motion of the State, over objection by the defendant. There is no question here of the propriety of charging and trying together, in Case No. 77-560, the sexual offenses committed within an hour on different victims in nearby FSU dormitories. At issue is the propriety of consolidating Paul’s trial for a sexual offense committed on April 9 with those committed May 14. I dissent from the court’s decision which apparently holds that consolidation was authorized by Fla.R.Crim.P. 3.151.

Rule 3.151(b) provides that two or more informations “charging related offenses” shall be consolidated on motion. Subsection (a) defines “related offenses” as those which are triable in the same court and are “based on the same act or transaction or on two or more connected acts or transactions.” In my view the charges of sexual offenses committed on April 9 and on May 14 were not based “on the same act or transaction” or on “two or more connected acts or transactions.”

I conceive that consolidation rule 3.151 and its counterpart, joinder rule 3.150, refer to “connected acts or transactions” in an episodic sense, and that the rules do not warrant joinder or consolidation of criminal charges based on similar but separate episodes, separated in time, which are “connected” only by similar circumstances and the accused’s alleged guilt in both or all instances. Contrast Hall v. State, 66 So.2d 863 (Fla.1953).

Had Paul been charged and tried on either the April 9 or the May 14 offense, evidence of the other would not in my opinion have been admissible. See Smith v. State, 365 So.2d 704 (Fla.1978), construing Williams v. State, 110 So.2d 654 (Fla. 1959). It is true that the April 9 and May 14 offenses were similar to each other and to most such offenses: the assailant loitered in a deserted place; he threatened injury or death; he attempted to conceal his identity; he took flight when a witness appeared. The offenses were more particularly similar in that they were committed in female college dormitories in the same city during the early morning hours. But for Williams-rule purposes those similarities did not place a hallmark upon the offenses, independently proclaiming them as of the same design and so likely committed by the same person. See Dodson v. State, 334 So.2d 305, 307 (Fla. 1st DCA 1976), and McCormick, Law of Evidence § 190 at 449 (1972). Absent that relevance, the identifying testimony of the April 9 victim, in a trial on the May 14 offense alone, could not corroborate the identifying testimony of the May 14 victim or otherwise serve except to suggest the propensity of the accused to commit rape. As we stated in Dodson, 334 So.2d at 306, no one can doubt that a jury would find a “rational relationship between the prior event and the present hypothesis of guilt”; jurors, like the rest of us, are susceptible to the reasoning that, given two like offenses, one who did it before is capable of doing it again. But collateral evidence serving that argument alone is inadmissible, not because we suppose it irrelevant in a general sense, but because its introduction not so subtly invites conviction of the specifically charged offense on account of the cumulative probabilities of the accused’s guilt of that and the collateral offense.

Whether or not evidence of the April 9 offense would have been Williams -admissible upon a separate trial for the May 14 offense, the joint trial of the two unconnected charges assured that each charge was featured in the trial of the other — a prejudicial result which we strive to avoid in a pure Williams -type trial. Here, the accused suffered no procedural embarrassment such as forfeiture of closing argument by introducing defensive evidence on one charge but not the other. But the more important purpose of requiring separate trials on unconnected charges is to assure that evidence adduced on one charge will not be misused to dispel doubts on the other, and so effect a mutual contamination of the jury’s consideration of each distinct charge. When as here the accuracy of an identification witness is critical in each unconnected case, their identifications will be regarded as mutually supportive although they are not mutually corroborative in law or in fact. The support that each identification lends to the other enables the prosecution to try the accused on a theory of cumulative guilt. The prosecutor’s last words to the jury in this case were:

If you can come out here and explain to us how_(victim on April 9) and_(victim on May 14) both could be mistaken in this case and neither one of them know each other or never talked to each other or nothing else, fine. If not, I will expect you to return a verdict of guilty as charged in this case.

I take it that the Supreme Court, promulgating Rule 3.151, chose carefully the words “based on the same act or transaction or on two or more connected acts or transactions.” The Court did not authorize joinder for trial of all an accused’s offenses, or of all his “similar offenses,” whether or not based on “connected acts or transactions.” Contrast Fed.R.Cr.P. 8(a), which authorizes joinder in the same indictment of offenses which are “of the same or similar character or are based on the same act or transaction or on two or more acts or transactions connected together or constituting parts of a common scheme or plan” (emphasis added). See also Fed.R.Cr.P. 13, authorizing joint trial of indictments charging offenses that might properly have been joined in a single indictment; and Fed.R.Cr.P. 14, providing severance relief from prejudicial joinder. The marked difference between Florida rule 3.151 and federal rule 8(a) surely demonstrates that there is a difference between “similar” offenses and “connected” offenses, and that in Florida “similarity” does not warrant a joint trial. If that were not clear enough from the rule texts, it is made abundantly clear by federal decisions which, despite federal rule 8(a), hold that properly joined charges must be severed for trial if the evidentiary “similarity” of offenses is not such as to satisfy the “so-called ‘handiwork’ or ‘signature’ exception to the other crimes [exclusionary] rule.” E. g., United States v. Foutz, 540 F.2d 733, 737 (4th Cir. 1976). See also ABA Standards, Joinder and Severance, Sections 1.1 and 2.2(a) (1968), which permit liberal joinder of offenses in an information but require severance for trial of offenses joined “solely on the ground that they are of the same or similar character.” There being no showing of the requisite “connected acts or transactions,” I would reverse the convictions for new and separate trials.

      .The underscored words were added by amendment effective July 1, 1977.

      . 59 ALR2d 841, 845.

      . Id. at 855, 856.


author: DANAHY, Judge.

text:
    John Leonard COXON, Jr., Appellant, v. STATE of Florida, Appellee.
    No. 78-1104.
    District Court of Appeal of Florida, Second District.
    Jan. 3, 1979.
    Jack 0. Johnson, Public Defender, Bar-tow, and William Murphy, Asst. Public Defender, Tampa, for appellant.
    Robert L. Shevin, Atty. Gen., Tallahassee, and Michael A. Palecki, Asst. Atty. Gen., Tampa, for appellee.
   DANAHY, Judge.

Appellant was charged by affidavit with violation of four of the ten conditions of his probation. Those four conditions forbid him to leave the county without permission, require him to file monthly reports, require him to pay a fine, and require him to pay the monthly fee for supervision mandated by Section 945.30, Florida Statutes (1977). The trial court adjudicated appellant to be insolvent when the probationary sentence was imposed. Because of his indigency, appellant was represented by the public defender at the sentencing hearing, the later probation revocation hearing, and in this court. At the probation revocation hearing, no evidence of appellant’s ability to pay the fine and the fee for supervision was presented. Except for the prior order which declared appellant insolvent, the trial judge had no evidence before him upon which to review the financial resources of the appellant and the nature of the burden that payment of the fine and fee would impose on him. Following testimony, the court found appellant had violated the four conditions, revoked his probation, adjudicated him guilty of the burglary offense for which he was given probation, and sentenced him to three years in prison.

Appellant asserts that the trial court erred because, since he had been adjudicated insolvent, his probation could not be revoked for violation of conditions requiring payment of the fine and supervision fee without a subsequent finding of his ability to make these payments. We agree, and reverse the finding of a violation of those two conditions; but we affirm the order of revocation, and the judgment, and the sentence for reasons we will discuss.

The United States Supreme Court has held that the equal protection clause of the federal constitution prohibits the conversion of a sentence of a fine into a jail term solely because the defendant is indigent and unable to pay the fine. Tate v. Short, 401 U.S. 395, 398, 91 S.Ct. 668, 671, 28 L.Ed.2d 130, 133 (1971). Other federal courts note that revocation of probation solely because of impecunity would be of doubtful constitutionality since the result would be to punish for poverty. United States v. Wilson, 469 F.2d 368 (2d Cir. 1972). The Supreme Court has also impliedly required a finding of solvency for initially insolvent defendants who are required, as a condition of probation, to later repay the cost of their legal defense. Fuller v. Oregon, 417 U.S. 40, 94 S.Ct. 2116, 40 L.Ed.2d 642 (1974).

In Florida the specific issue raised by appellant was considered in Jones v. State, 360 So.2d 1158 (Fla. 1st DCA 1978). The court there held that before revoking probation for nonpayment of the supervisory fee, the trial court must find the indigent defendant’s financial condition to be such that payment can be made. And a showing of solvency must precede revocation for nonpayment of other amounts required to be paid as a condition of probation. Page v. State, 363 So.2d 621 (Fla. 1st DCA 1978). Similarly, it has been held there must be a showing of ability to pay before there can be revocation for violation of a condition requiring repayment of the public defender’s fee. Robbins v. State, 318 So.2d 472 (Fla. 4th DCA 1975). We agree with these cases, and hold that probation cannot be revoked solely for violation of conditions requiring payment without evidence that the probationer is able to make the payment.

In the case before us, no evidence was presented which would demonstrate that this insolvent petitioner had subsequently gained the ability to pay the fine and the fee for his supervision.

It was, therefore, improper to revoke his probation on those grounds. However, we will not remand for reconsideration of the revocation order by the trial judge. We have done that when a substantial ground for revocation was reversed leaving only proof of the violation of a technical ground to support the revocation. McKeever v. State, 359 So.2d 905 (Fla. 2d DCA 1978); Tuff v. State, 338 So.2d 1335 (Fla. 2d DCA 1976). But here the appellant’s revocation is supported by ample evidence, including his own admission, that he left the county for over six months and also failed to file his monthly reports. Appellant’s wilful failure to comply with those two conditions constitutes a substantial violation of probation and is sufficient to support the revocation order and judgment and sentence. Cf. Franklin v. State, 226 So.2d 461 (Fla. 2d DCA 1969).

Therefore, we strike from the order of revocation the finding of a violation of the two conditions requiring the payment of a fine and the fee for supervision. The order, the judgment, and the sentence are affirmed in all other respects.

SCHEB, Acting C. J., and RYDER, J., concur.


author: ERVIN, Judge.

text:
    Peter C. SWEBILIUS, Sr., Petitioner, v. FLORIDA CONSTRUCTION INDUSTRY LICENSING BOARD, Respondent.
    No. II-92.
    District Court of Appeal of Florida, First District.
    Jan. 9, 1979.
    Paul H. Hagglund of Hagglund, Matthews & Hagglund, New Smyrna Beach, for petitioner.
    Barry S. Sinoff of Jacobs, Sinoff, Edwards, Alford & Burgess, Jacksonville, for respondent.
   ERVIN, Judge.

Swebilius appeals from an order of the Florida Construction Industry Licénsing Board which suspended his license for a period of six months. Swebilius was sued by two persons with whom he had contracted to build a home. A judgment was recovered by them in which it was recited that the foundation and side walls were not built according to plans, and that the overall quality of the house was substandard. Following the judgment, the Board filed an administrative complaint, alleging Swebili-us had violated § 501.204, Fla.Stat. (1975) and certain rules of the Department of Legal Affairs, Ch. 2-15.03, in the construction of the home by deviating materially from the plans without consent of the intended purchasers.

Findings were entered by the hearing examiner which found that mitigating cir-eumstances allowed the contractor’s deviation from the plans and specifications. It was concluded the evidence did not show that the petitioner had violated Ch. 468 to the extent his license should be suspended since the only violation, pertaining to the construction of the chimney shape of the house, was technical. The order recommended only that Swebilius be reprimanded, which was rejected by the Board’s suspension order.

Swebilius raises several points in his appeal, the first being that the Board did not have subject matter jurisdiction to prosecute the complaint because § 468.112(1) provides that the Board must first forward a complaint to a local board, if one exists, otherwise the state Board “shall take jurisdiction.” Swebilius observes that there was a local board in existence in Volusia County; therefore the Licensing Board had no jurisdiction. Under the Volusia County Code, the County Trades Examining Board has the authority to revoke or suspend a contractor’s certificate of competency if, after hearing, it is found the .contractor has violated any of the provisions of the code, which include in general the same prohibitions as are contained in Ch. 468.

The pertinent portion of § 468.112(1) provides in part:

On its own motion or the verified written complaint of any person, the board may investigate the action of any contractor certified or registered under this part and hold hearings pursuant to chapter 120; provided, however, when any complaint involves a contractor certified or registered under this part for acts or omissions occurring in any area of the state which has a local board, the board shall forward the complaint to the municipality, city, or county where the alleged violation occurred for its action. Where no local board exists, the board shall take jurisdiction.

The act is clear in its terms that only in the event a local board does not exist is FCI conferred jurisdiction to investigate, hold hearings, and if need be, suspend or revoke a license. The Licensing Board does not contest the existence of a local board; it argues rather that Swebilius is estopped from raising the jurisdictional issue because it was first asserted on. this appeal and not during any of the administrative level proceedings. While we are aware of the authority which the Board relies upon, i. e., Florida State Racing Commission v. McLaughlin, 102 So.2d 574 (Fla.1958); Krasnosky v. Krasnosky, 282 So.2d 186 (Fla. 1st DCA 1973); North Miami General Hospital, Inc. v. Kovens, 318 So.2d 567 (Fla. 3d DCA 1975), we believe that the issue has not been waived.

The Licensing Board, created by statute, § 20.30(5)(b), and Ch. 468, Part II, has only those powers which are conferred upon it by the legislature in order to carry out the aims for which it was established. See State v. Atlantic C. L. R. Co., 56 Fla. 617, 47 So. 969 (1908). Moreover an agency may not enlarge its jurisdiction; nor can jurisdiction be conferred upon the agency by agreement or consent of the parties. Gulf American Corp. v. Florida Land Sales Board, 206 So.2d 457 (Fla. 2d DCA 1968).

The Licensing Board, in suspending Swebilius’ license, was functioning in a quasi-judicial manner. Cases involving a court’s subject matter jurisdiction are particularly helpful in resolving the issue of the agency’s jurisdiction to proceed against Swebilius. Subject matter jurisdiction means the power of the court to deal with a class of cases to which the particular case belongs, Malone v. Meres, 91 Fla. 709, 109 So. 677 (1926), and it concerns the power of the court to adjudge as to the general question involved before it. Quigley v. Cremin, 94 Fla. 104, 113 So. 892 (1927); Crill v. State Road Dept., 96 Fla. 110, 117 So. 795 (1928); Curtis v. Albritton, 101 Fla. 853, 132 So. 677 (1931). If a court has no jurisdiction over the subject matter, it has no jurisdiction to entertain questions pertaining thereto. Lovett v. Lovett, 93 Fla. 611, 112 So. 768 (1927). Moreover such jurisdiction cannot be waived. Judicial proceedings which are taken without subject matter jurisdiction are void in the strictest sense of the term. Roberts v. Seaboard Surety Co., 158 Fla. 686, 29 So.2d 743 (1947). For example, it has been held that the failure to make a timely objection to the circuit court’s assumption of jurisdiction over an action for declaratory relief does not later preclude the objection from being raised on appeal. Pushkin v. Lombard, 279 So.2d 79 (Fla. 3d DCA 1973), cert. den., Fla., 284 So.2d 396. In Pushkin, certain optometrists were charged by the Board of Optometry with violating Ch. 463. Before the administrative hearing was held, they filed an action in circuit court seeking a determination of their rights under Ch. 463. After the circuit court entered a declaratory judgment in favor of the optometrists, the Board, for the first time on appeal, raised its objection to the circuit court’s jurisdiction on the ground that the optometrists had failed to exhaust administrative remedies. The Third District Court of Appeal agreed that the lower court had no jurisdiction, saying:

[W]e note that the record fails to show that the appellant challenged the action below on the specific grounds of failure to exhaust administrative remedies. However, such an attack goes to the very subject matter jurisdiction of the court to hear a matter and may be attacked at any time. Id. at 82.

Since there was a local board, the Licensing Board had no jurisdiction, and Swebilius is not estopped from now raising the point.

REVERSED.

MILLS, Acting C. J., and BOOTH, J., concur.

      . At the hearing, an investigator for the Licensing Board testified he had received information that the local board had refused to take any action due to its erroneous belief that it had no jurisdiction because the house was located in a special zoning district. Before the prosecution commenced, however, the district was declared unconstitutional, according to the testimony, thus removing any impediments to the county board’s assumption of jurisdiction.


text:
    Thomas A. THOMAS, Jr., etc., Petitioner, v. Edward T. HOLDER, d/b/a Inex Company, Respondent.
    No. KK-217.
    District Court of Appeal of Florida, First District.
    Jan. 9, 1979.
    Thomas & Thomas, Hollywood, for petitioner.
    Walter B. Dunagan, Daytona Beach, and Peter J. Coleman, Fort Lauderdale, for respondent.
   PER CURIAM.

Common law certiorari is here sought to review an order of the Circuit Court in and for Volusia County quashing, inter alia, an appeal to that court from a final judgment entered in the County Court of Volusia County.

A “Statement of claim” was filed in the County Court of Volusia County wherein the plaintiff was designated as “Edward T. Holder (not Inc.) d/b/a Inex Co.” and the defendant was designated as “Thomas A. Thomas, Jr., President, d/b/a T & D Karate Studios, Inc.” There is nothing in the statement of claim to indicate that the plaintiff intended to sue multiple defendants nor is it clear from the statement of claim whether it was intended that Thomas A. Thomas, Jr., be the defendant or whether it was intended that T & D Karate Studios, Inc., be the defendant. That portion of the statement of claim which is typed, as distinguished from printed form, designates the defendant in the singular. The Sheriff’s return alleges that'service of process was obtained by “delivering a true copy of the [summons] * * * to Ron Jackson as agent of said corporation in the absence of any superior officer as defined in F.S. 48.081”. Venue was attacked by a motion to dismiss filed on behalf of “Thomas A. Thomas, Jr., d/b/a T & D Karate Studios, Inc.”. Attached to that motion was an affidavit alleging that “defendant’s place of business and all places of business owned and/or operated by defendant herein are located within Broward County, Florida.” There is nothing in the record to reflect whether the motion to dismiss and attached affidavit were intended to relate to Thomas A. Thomas, Jr., as an individual or to T & D Karate Studios, Inc. Indeed, there is nothing in the record to indicate whether or not T & D Karate Studios, Inc. is a corporation, except the Sheriff’s return which contained the recital above quoted. The record before us does contain a copy of a letter from one of petitioner’s attorneys addressed to Inex Corporation which letter implies corporate existence under the name of T & D Karate of Davie, Inc. Other portions of the record also reflect the existence of such a corporation. The County Court denied the motion to dismiss and entered a final judgment against “Thomas A. Thomas, Jr. and T & D Karate Studios, Inc., a/k/a T & D Karate of Davie, a/k/a T & D Karate of David, Inc.”

In the meantime a complaint was filed in the County Court of Broward County by Thomas A. Thomas, Jr. and T & D Karate of Davie, Inc. against Edward T. Holder, d/b/a Inex Company and a timely appeal was taken to the Circuit Court from the final judgment entered by- the County Court of Volusia County above mentioned.

On April 27,1978 the Circuit Court in and for Volusia County, acting in its appellate capacity, entered an order, without explanation, quashing the appeal and restraining further prosecution of the action which had been commenced in Broward County. Timely petition for certiorari was filed in this Court.

Although, as above recited, the Circuit Court’s order of quashal is silent as to the reasons therefor, we find no provision in either the current or former rules regulating appellate procedure providing for the quashing of an appeal on any ground other than frivolousness. On the state of this record, the material portions of which are above mentioned, clearly the appeal to the Circuit Court was not frivolous. The record does- not reveal whether the County Court action in Volusia County was against one defendant or two and if one then whether a natural person or a corporation. The record does not reveal any service of process upon Thomas A. Thomas, Jr., individually. An attack on jurisdiction in the absence of service of process can hardly be called frivolous. Neither does the record reveal, though an issue is made, whether or not in fact Ron Jackson was an agent of T & D Karate Studios, Inc., assuming a corporation by that name even exists. Whether or not a Circuit Court acting in its appeilate capacity has authority to enjoin prosecution of an action in another county when such injunction is not in any manner related to the county court judgment being appealed is an issue which we need not address since petitioner, though mentioning it, has not argued it here. Neither are we in a position to resolve the venue issue since the record is insufficient to establish whether the defendant in the County Court of Volu-sia County was an individual or a corporation.

The record before us reflects that the learned circuit judge did indeed depart from the essential requirements of law thereby affording a basis for common law certiorari jurisdiction in this court. The petition for common law certiorari is granted, the order of the Circuit Court for Volu-sia County dated April 27, 1978 is quashed and this case is remanded for further proceedings consistent with the Florida Rules of Appellate Procedure and this opinion.

IT IS SO ORDERED.

McCORD, C. J., and BOYER and MELVIN, JJ., concur.


author: BOYER, Judge.

text:
    UNITED FACULTY OF FLORIDA, FEA/UNITED, AFT, AFL-CIO, LOCAL 1880, Petitioner, v. BOARD OF REGENTS of the State of Florida, Respondent.
    No. GG-465.
    District Court of Appeal of Florida, First District.
    Jan. 9, 1979.
    Patricia A. Renovitch, Tallahassee, for petitioner.
    Cass Vickers, of Thompson, Wadsworth, Messer, Turner & Rhodes, Tallahassee, for respondent.
   BOYER, Judge.

By petition for review which was filed July 27, 1971 the petitioner (which will sometimes be referred to as UFF) requests this court to hold that the respondent (which will sometimes be referred to as BOR) departed from the essential requirements of law by its refusal to allocate certain funds required to meet its negotiated commitments contained in a certain collective bargaining agreement between the parties.

The UFF is the certified bargaining agent which represents approximately 5,000 faculty and professional employees of the BOR. In October of 1976 the parties executed a two-year collective bargaining agreement pursuant to the requirements of Chapter 447, Florida Statutes. The agreement contained a clause which permitted the parties to negotiate certain monetary items for the 1977-78 portion of the two-year contract. In the fall of 1976 the parties entered into negotiations on the monetary items covered by the re-opener clause. Being unable to reach an agreement, the parties caused to be conducted an impasse hearing before a special master. The special master issued his recommended order to settle the impasse in March of 1977. Subsequent negotiations between the parties relative to the recommended order of the special master pursuant to F.S. 447.403 appearing unsuccessful, the parties informed the Public Employees Relation Commission (PERC) of their inability to reach an agreement. Legislative hearings as contemplated by the statute were thereupon scheduled. However, on or about April 20,1977, following intensive negotiations, but before the legislative hearings were held, the parties rendered a tentative agreement which was subsequently ratified on May 17, 1977. Thereafter, on June 16, 1977, at a special session of the Florida legislature, the 1977-78 General Appropriations Act was passed. The act explicitly provides that “The agreement negotiated by the Board of Regents and the United Faculty of Florida and ratified on May 17, 1977, shall be administered by the Board of Regents.”

Petitioner contends that sufficient monies were appropriated in the several line items of the Appropriation Act to allow implementation of the collective bargaining agreement between the parties. Respondent argues, on the otherhand, that the legislature spoke clearly and unambiguously in the Appropriations Act as to the funds appropriated for implementation of the contract; that insufficient funds were appropriated for that purpose and that respondent is without authority to expend monies incident to the contract other than those specifically so appropriated.

Article VII, Section 1(c) of the Florida Constitution dictates that “[n]o money shall be drawn from the treasury except in pursuance of appropriation made by law.” That provision, and the vesting of “the legislative powers of the state” in the Florida Legislature by Article III, Section 1, renders the appropriation of State funds the exclusive constitutional prerogative of the Legislature. The formulation of budget requests and the approval or veto of specific appropriations are the prerogative of the executive branch. (Article IV, Section 1(c) and Article III, Section 8, Florida Constitution.) The executive is also admonished to observe that division of governmental budgetary responsibilities by the law dealing with State appropriations, Chapter 216, Florida Statutes 1975.

The respondent is required to present “to the Governor, as chief budget officer of the State, all requests for appropriations [for the State University System], in the manner provided in Section 216.023.” (Section 240.042(2)(e), Florida Statutes 1975.) All agency budget requests must be submitted by November 1 each year. (Section 216.023, Florida Statutes 1975) The Governor thereafter furnishes “each Senator and Representative a copy of the recommended budget for each state agency" at least 30 days in advance of the legislative session. (Section 216.162(1), Florida Statutes 1975) The Governor’s recommended budget is required to include “[a] summary statement of the estimated revenues and the amount of appropriations requested by each state agency and as recommended by him.” (Section 216.162(2)(d), Florida Statutes 1975)

Section 216.172, Florida Statutes 1975, details the consideration of agency budget requests by the appropriations committees of the House and Senate, and Section 216.-181(1), requires that:

“On or before July 1, the chairmen of the legislative appropriations committees shall jointly furnish information to the department [of Administration] and the Auditor General relative to legislative amendments, if any, to budgets submitted pursuant to Section 216.023 [and 216.162.] The department shall furnish such information to each affected state agency.”

It is against the foregoing backdrop that Chapter 447, Part II, Florida Statutes 1975, implements the Article I, Section 6 guarantee of collective bargaining to public employees. Section 447.301(2) assures public employees the right, through a certified bargaining agent, to negotiate collectively with their public employer. For the employees represented by the petitioner herein, the respondent BOR is designated the public employer. (Section 447.203(2), Florida Statutes 1975) If and when the negotiations between the public employer and the bargaining agent produce an agreement, the chief executive officer of the public employer must, pursuant to Section 447.-309(2), in his annual budget request or by other appropriate means, request the legislative body to appropriate such amounts as shall be sufficient to fund the provisions of the collective bargaining agreement. The “legislative body” is defined to mean “the State Legislature ... or the governing body of an instrumentality or unit of government having authority to appropriate funds . . . .” (Section 447.203(10), Florida Statutes 1975) The Florida Legislature is thus the “legislative body” for the public employees represented by the petitioner.

Should negotiations result in an impasse, a mediator may be called in to assist and in the absence of resolution in that manner, special master proceedings are instituted. (Section 447.403, Florida Statutes 1975) If the special master’s recommendations for settlement of the contract talks are rejected by either party, the matter is referred to the legislative body for final disposition. The public employer must, and the bargaining agent may, submit its recommendations for impasse resolution to the legislative body, and the legislative body thereafter takes “such action as it deems to be in the public interest, including the interest of the public employees involved.” (Section 447.-403(l)(c)(4), Florida Statutes 1975) Similarly, when negotiations yield agreement and the chief executive officer requests the funds therefor, the legislative body may appropriate less than the amount requested.

It was within the framework of the foregoing constitutional and statutory measures that the respondent and the petitioner entered negotiations for salary increases and other terms and conditions of employment covering faculty members and other professional employees during the 1977-78 fiscal year.

The special master above referred to, summarized the basis upon which the parties had encountered an impasse over salary increases as follows:

“UFF asks for faculty salary increases aggregating $18.7 million for (1) across-the-board increases, (2) discretionary funds for increases, and (3) for implementing a program of minimum salaries . [representing] a 22% increase in compensation.
“BOR recommends a 3% across-the-board increase [and] recommends additionally 3.35% of the bargaining unit payroll to be distributed to faculty on the basis of management discretion . . . ”

Thus the parties stood at the time the Governor’s budget recommendations fell due under F.S. 216.162(1). The petitioner’s last best offer was a demand for a 22% salary hike, the respondent’s a counteroffer of 6.35%. Accordingly, the budget recommendation which went forward at that time requested salary increase funds for the Board of Regent’s collective bargaining unit “equal to 6.35% of the currently approved annual salary rate” of which 3% was, as offered at the bargaining table, “for across-the-board adjustments”. In dollar terms the request was for $6,647,905.

The special master’s report went to PERC and the parties on or about March 9, 1977, subsequent to the submission of the Governor’s recommended budget. With respect to salaries the special master recommended an 8.85% increase in bargaining unit pay, 5.5% to be across-the-board, the remaining 3.35% to be discretionary funds. On March 28, 1977, the respondent herein accepted in part and rejected in part the special master’s recommendations. With reference to salaries, it accepted his recommendation for an 8.85% increase, but rejected his proposed division between the across-the-board and discretionary pay components thereof. In accordance with Section 447.-403(2)(c)(l), Florida Statutes 1975, the respondent prepared its recommendations for settling the dispute and transmitted them and the special master’s report to the Legislature. On the eve of the legislative hearings which had been scheduled to resolve the impasse as above recited, an agreement was reached, the salary increase element of which called for funding at the 8.85% level.

In fulfillment of the responsibilities imposed by Section 447.309(2), Florida Statutes 1975, the official budget request was amended on April 29, 1977, to accommodate the parties’ recent agreement. As the amended request explains, the collective bargaining agreement specified a salary increase effective date of September 1 for 12-month personnel and academic year employees other than those whose 1977-78 assignment commenced during the summer quarter. The earlier budget request for a 6.35% increase was calculated by reference to a July 1 effective date. Using the September 1 date agreed to provided a 7.61% average salary increase without additional dollar cost that year, although an increase in the requested rate was necessary, the next year’s salary base would be augmented. The request further indicated that the balance of the funds necessary for an 8.85% increase could be generated by salary savings, hiring for vacant positions at approximately 20% below recommended average salaries, then estimated to yield roughly $1.4 million Systemwide.

The Legislature did not provide the approximately $6.6 million sought, but instead appropriated only $5,096,591. That item, (Item 14 of the Appropriations Act) is expressly denominated for “CBU [collective bargaining unit] — Pay Increases for Implementation of Contracts — Pay Adjustment and Merit Increases — Board of Regents Unit”. The accompanying letter of intent, which is required by Section 216.181(1), Florida Statutes 1975, limits the source of unit salary increases to Items 14, 394 (base salary), 405 (EIES) and 413 (USF Medical Center) and proscribes total increases exceeding “7.1% of the June 30, 1977, rate for all continuing unit employees”. Similar restrictions are placed upon salary increases outside the bargaining unit. The $5.1 million appropriation accounts for roughly 5.9% of the 7.1%, the remainder being the unit salary savings above mentioned.

It is clear then that the Legislature underfunded the collective bargaining agreement between the petitioner and the respondent. Faced with a request for a $6.6 million appropriation, the Legislature chose to appropriate but $5.1 million. Both the budget request and the appropriation handed down explicitly and unmistakably identified the amounts having to do with the parties’ collective bargaining agreement. There appears neither error not misunderstanding. The letter of intent, which was prepared in accordance with legislative mandate merely corroborates what is otherwise clear: That less than the requested amount was appropriated.

The petitioner attempts to avoid that conclusion by asserting that the letter of intent is not binding upon the respondent. That proposition is contradicted by the very terms of F.S. 216.181(1), which mandates its joint preparation by the chairmen of the House and Senate appropriations committees. It is, therefore, by virtue of that statutory provision, an element of the annual appropriations bill. By legislative fiat it enjoys the force and effect of law until such time as the members of the Legislature determine to revoke that delegation to their appropriations committee chairmen.

Further, assuming arguendo that the letter of intent is not dispositive, it is nonetheless entitled to substantial weight in ascertaining the Legislature’s will. That is so for precisely the reason that the Legislature has directed its appropriations committee chairmen to issue such letter. Moreover, the budget request presented to the Legislature is to be considered in arriving at any interpretation of an appropriations bill. During the days when such budget requests were submitted to the Legislature by a Budget Commission, the Florida Supreme Court in State ex rel. Knott v. Lee, 144 Fla. 164, 197 So. 681 (1940), explained their significance:

“The Budget Commission was created by Chapter 8426, Acts of 1921, and its recommendation is a very important element in every appropriation bill; in fact its recommendation and report is a guide to the legislature in making appropriations for all departments of the State Government. The General Appropriation Bill passed by each session of the legislature is predicated on the report of the Budget Commission.” (197 So. at page 681)

A similar ruling appears in State ex rel. Goodjohn v. Lee, 148 Fla. 719, 5 So.2d 595 (1941), wherein our Supreme Court stated:

“Under the above quoted statute the requests of a State department for appropriations to cover salaries in the department with the recommendation of the Budget Commission as to amounts to be appropriated for such salaries are officially before the legislature not to control legislative action but as authorized information as to the salaries requested for the department and officially recommended by the -Budget Commission consisting of the Governor and the six State Administrative Officers; and when the appropriation made by statute is of a total sum to cover all salaries of the Department, the official records as to what amounts for different salaries were requested and recommended and are included in the appropriations, may be considered. * * * ” (5 So.2d at page 598)

Petitioner contends that the respondent has been given sufficient funds to provide the agreed 8.85% pay raises, but refuses, without reason, to do so. We cannot agree. The Legislature did not appropriate an indeterminable sum of money to the respondent for expenditure upon the collective bargaining agreement as the respondent saw fit. Rather it appropriated a specific dollar amount for that purpose and no more. In the face of an unambiguous request for a $6.6 million appropriation for bargaining unit salary increases, the Legislature appropriated $5.1 million toward that end. Had the Legislature intended to authorize or permit the expenditure of $6.6 million within the bargaining unit, it could have returned an appropriation in that amount. Had the Legislature intended to provide an 8.85% salary increase for members of the bargaining unit, it would not have imposed the 7.1% ceiling thereon. For the respondent to attempt to allocate at the 8.85% level, despite those restrictions, would be to act in blatant disregard of legislative strictures clearly articulated by the Appropriations Act and the letter of intent. The subject appropriations act is susceptible of no interpretation other than that less than the amount requested for the collective bargaining agreement was appropriated. It is, then, the appropriation of less than the amount requested for unit salary increases which precludes the respondent from doing otherwise.

Petitioner lays great stress on the fact that the Appropriations Act contains no direct prohibition against the use of other appropriated funds for funding the subject contract. The absence, however, of such a prohibition cannot, particularly in light of the other specific provisions of the Act as above mentioned, be construed as a license for the BOR to spend such funds in such manner as it may desire, regardless of the express wording of the several appropriated items contained in the Act.

Even if the salary increase funds within the respondent’s jurisdiction were entrusted to it free of all legislative restrictions, the petitioner’s argument would be flawed. For a ruling that each and every collective bargaining agreement is entitled to its allocation “off the top” of the employer’s aggregate appropriations would inevitably bring at least two such agreements into irremediable collision.

Nor may the Legislature’s failure to fund the agreement at the level requested by the public employer be construed as an impairment of contract obligations proscribed by Article I, Section 10 of the Florida Constitution. The collective bargaining agreement was negotiated within the existing legal framework. Among the controlling laws was F.S. 447.309(2), by which the Legislature explicitly reserved the right to appropriate “less than the amount requested” to fund the agreement. That statute operates to make all collective bargaining agreements subject to the approval, through the medium of appropriations, of the legislative body. That the Legislature might not provide full funding for the collective bargaining agreement was a contingency well known to the parties before, during and after negotiations. The agreement was entered into with full knowledge and in contemplation of the Legislature’s appropria-tive prerogatives vis-a-vis the negotiated product. The agreement embodied the contingency of underfunding just as surely as if it had been expressly recited therein.

The collective bargaining agreement to which the petitioner is a party did not divest the Legislature of its constitutional powers in the appropriation of public monies. It did not reconstitute the exercise of legislative discretion a simple ministerial function. The agreement subsumed the Legislature’s appropriations authority. It depended, as the parties knew full well from the outset, upon an appropriation in the amount requested, failing which the agreement was to be administered within the appropriation made. (F.S. 447.809(2)) The respondent was required to request monies from the Legislature sufficient to fund the agreement in full. It did precisely that, but its efforts before the 1977 Legislature were only partially successful.

In short, the collective bargaining agreement in question incorporated the Constitution and laws of this State, the provisions of which commit to the Florida Legislature the final say in the appropriation of State monies. That reservation of powers was a part of the agreement. The petitioner was expressly put on notice thereof by the terms of F.S. 447.309(2).

Our disposition of the primary points as above provided renders it unnecessary for us to address the other issues argued in the briefs.

We find no departure from the essential requirements of law. The petition for review is denied and the position taken by respondent is

AFFIRMED.

McCORD, C. J., and MILLS, J., concur.

      .In its brief UFF phrases the “question presented” as follows:
      “Did the BOR depart from the essential requirements of law by its refusal to allocate the funds required to meet its negotiated commitments contained in the UFF-BOR ratified collective bargaining agreement?”
      Unfortunately, this court’s review is hampered by the failure. of the parties to consistently phrase and then in turn argue identifiable points of law. Please see American Baseball Cap, Inc. v. Duzinski, 308 So.2d 639 (Fla. 1st DCA 1975).

      . Chapter 77-465, Laws of Florida.

      . Section 216.181(4), Florida Statutes 1975 requires that “Each state agency shall develop the internal management procedures and budgets necessary to assure compliance with the approved budget.” And Section 216.192(1), Florida Statutes 1975 specifies that “[t]he Comptroller shall authorize all expenditures to be made from the appropriations on the basis of such releases and in accordance with the approved budget and not otherwise. Expenditures shall be authorized only in accordance with legislative authorizations.” See also Article IV, Sections 4(d) and (e) of the Florida Constitution, respecting the duties of the Comptroller and the Treasurer in fiscal matters and the disbursement of State monies.

      . F.S. 447.309(2), Florida Statutes 1975, provides:
      “Upon execution of the collective bargaining agreement, the chief executive shall, in his annual budget request or by other appropriate means, request the legislative body to appropriate such amounts as shall be sufficient to fund the provisions of the collective bargaining agreement. If less than the requested amount is appropriated, the collective bargaining agreement shall be administered by the chief executive officer on the basis of the amounts appropriated by the legislative body. The failure of the legislative body to appropriate funds sufficient to fund the collective bargaining agreement shall not constitute, or be evidence of, any unfair labor practice.”

      . It should be pointed out that since the salary savings dollars associated with the bargaining unit were not a direct appropriation, the 1977 Appropriations Act is without consequence for those funds.

      . Engineering faculty and University of South Florida Medical Center personnel paid from these two line items are included in the petitioner’s bargaining unit.

      . Ibid.

      . F.S. 216.181(1).


text:
    Thomas Joseph VOGEL, Appellant, v. STATE of Florida, Appellee. Thomas Joseph VOGEL, Petitioner, v. George L. CANSLER, as Corrections Administrator, Volusia County Department of Corrections, and as Director of the Volusia County Correctional Facility, Respondent.
    Nos. KK-274, LL-272.
    District Court of Appeal of Florida, First District.
    Jan. 9, 1979.

      Michael J. Minerva, Public Defender and Louis G. Carres, Asst. Public Defender, for appellant and petitioner.
    Robert L. Shevin, Atty. Gen., and Miguel A. Olivella, Jr., Asst. Atty. Gen., for appel-lee and respondent.
   BOYER, Judge.

Vogel was convicted of attempted possession of burglary tools. Judgment and sentence was entered May 25, 19.78. A direct appeal was timely taken to this court, Case No. KK-274.

On September 21, 1978, while Vogel’s appeal was pending, the Florida Supreme Court held in State v. Thomas, 362 So.2d 1348 (Fla.1978) that there is no such crime in Florida as attempted possession of burglary tools.

On September 27,1978, petitioner filed in this court a petition for writ of habeas corpus, Case No. LL-272.

By separate order the two eases above mentioned have been sua sponte consolidated.

The State urges that since Vogel failed to make any objection at trial regarding the instruction and charge relating to attempted possession of burglary tools he may not do so here. While it is true that as a general rule, a person will not be heard to complain on appeal about a matter which could have been raised as error in the trial court but was not, a well known exception is “fundamental error”.

Fundamental error has been defined as error which goes to the foundation of the case or goes to the merits of the cause of action. (Sanford v. Rubin, 237 So.2d 134 (Fla.1970)) We are of the view that that doctrine is applicable sub judice. (c. f. Hornsby v. State, 352 So.2d 954 (Fla. 1st DCA 1977))

Although the Supreme Court did not announce in State v. Thomas, supra, whether that decision should be given retrospective or prospective application, we apply it retrospectively. Judicial conscience cannot allow a person to remain imprisoned for a crime which the Supreme Court has held does not exist. Such is especially true where, as here, a timely appeal from adjudication of guilt was pending at the time the Supreme Court rendered its decision determining that there was no such crime.

Accordingly, the judgment and sentence appealed in Case No. KK-274 are reversed and the petition for writ of habeas corpus in Case No. LL-272 is granted. Vogel shall be forthwith released from incarceration under and by virtue of said judgment and sentence.

IT IS SO ORDERED.

McCORD, C. J., and SMITH, J., concur.


text:
    Anthony T. PITTS, Appellant, v. The STATE of Florida, Appellee.
    No. 77-1642.
    District Court of Appeal of Florida, Third District.
    Jan. 9, 1979.
    Anthony T. Pitts, in pro. per.
    Jim Smith, Atty. Gen., for appellee.

      Before BARKDULL, KEHOE and SCHWARTZ, JJ.
   PER CURIAM.

The appellant seeks review of a summary denial of his motion pursuant to Fla.R. Crim.P. 3.850. We affirm.

The record proper clearly refutes the allegations of the motion and, therefore, the order appealed should be affirmed. See: Davis v. State, 277 So.2d 790 (Fla. 3d DCA 1973); Williams v. State, 296 So.2d 578 (Fla. 1st DCA 1974); Bohn v. State, 354 So.2d 1233 (Fla. 3d DCA 1978).

Affirmed.


text:
    BAYLA GALLERY, INC., Appellant, v. Norman F. SOLOMON and W. Klang & Son, Inc., a Foreign Corporation, Appellees.
    No. 78-3.
    District Court of Appeal of Florida, Third District.
    Jan. 9, 1979.
    Nat Gursten, North Miami, William L. Rogers, North Miami Beach, for appellant.
    Norman F. Solomon, A. John Goshgarian and Howard J. Hochman, Miami, for appel-lees.
    Before PEARSON, BARKDULL and HUBBART, JJ.
   PER CURIAM.

Affirmed. See: Smith v. Moore, 336 So.2d 145, 146 (Fla. 1st DCA 1976); Spillers v. Five Points Guaranty Bank, 335 So.2d 851, 853 (Fla. 1st DCA 1976).


text:
    B. W. V., a child, Appellant, v. The STATE of Florida, Appellee.
    No. 78-171.
    District Court of Appeal of Florida, Third District.
    Jan. 9, 1979.
    John H. Keane, Public Defender and Leonard J. Cooperman, Asst. Public Defender, for appellant.
    Jim Smith, Atty. Gen., and Calvin L. Fox, Asst. Atty. Gen., for appellee.
    Before HAVERFIELD, C. J., and HEN-DRY and HUBBART, JJ.
   PER CURIAM.

This court has heretofore heard the appeal of B.W.V. and entered its order relinquishing and remanding the cause to the trial court to consider the rule on the volun-tariness of appellant’s confession. The trial court has fully complied with this court’s order. Upon consideration of the trial court’s written statement filed herein, the record on appeal, briefs and argument of counsel, we have concluded that no reversible error has been made to appear. Therefore the judgment appealed is affirmed.

Affirmed.

      . B. W. V. v. State, 362 So.2d 483 (Fla. 3d DCA 1978). This case was incorrectly styled “B. M. V. v. State” by this court.


text:
    METROPOLITAN DADE COUNTY, a Political Subdivision of the State of Florida, Appellant, v. UNITED STATES FIDELITY & GUARANTY COMPANY, as subrogee for William Ratzel and Reliable, Inc., Appellee.
    No. 78-201.
    District Court of Appeal of Florida, Third District.
    Jan. 9, 1979.
    Stuart L. Simon, County Atty., and Jack M. Sobel, Asst. County Atty., for appellant.
    McCormick, Bedford & Backmeyer and Jack E. Whitelock, Jr., Miami, for appellee.
    Before HUBBART, KEHOE and SCHWARTZ, JJ.
   PER CURIAM.

By this appeal we are asked to review the propriety of a trial court order granting a motion for new trial in a negligence action on the sole ground that “the verdict is contrary to the manifest weight of the evidence.” The trial court ordered herein does not give reasons to support the conclusion reached nor does it point to anything in the record upon which the conclusion was based so as to be susceptible to appellate review as required by Wackenhut Corp. v. Canty, 359 So.2d 430, 435 (Fla.1978); Travelers Indemnity Co. v. Hicks, 363 So.2d 628 (Fla. 3d DCA 1978); White v. Martinez, 359 So.2d 7 (Fla. 3d DCA 1978). Accordingly, the order under review is reversed based on the above authorities and the cause is remanded to the trial court pursuant to Fla.R.Civ.P. 1.530(f) with directions to enter an order specifying legally adequate grounds for granting the new trial herein.


text:
    Francisco CARRERA, a minor, By and Through his father and next friend, Francisco Carrera, and Francisco Carrera, Individually, Pera Puertas, a minor, By and Through her father and next friend, Jose Puertas, and Jose Puertas, Individually, Luis Perozo, a minor, By and Through his father and next friend, Alberto Perozo and Alberto Perozo, Individually, Roberto Recio, a minor, By and Through his father and next friend, Leopoldo Recio, and Leopoldo Recio, Individually, Appellants, v. ESTATE of Enrique CASTELLANOS, Deceased, and Criterion Insurance Company, Appellees.
    No. 78-503.
    District Court of Appeal of Florida, Third District.
    Jan. 9, 1979.
    Stabinski, Funt, Levine & Vega and Manuel Vega, Jr., for appellants.
    Bradford, Williams, McKay, Kimbrell, Hamann & Jennings and David S. Currie, for appellees.
    Before PEARSON, HUBBART and SCHWARTZ, JJ.
   PER CURIAM.

Affirmed upon authority of Lasky v. State Farm Insurance Company, 296 So.2d 9 (Fla.1974).


text:
    LUMILITE INDUSTRIES, INC., and Tessie Kaufman, Appellants, v. SOUTHEAST LIFE INSURANCE COMPANY and Capital Bank of Kendale, Appellees.
    No. 78-747.
    District Court of Appeal of Florida, Third District.
    Jan. 9, 1979.
    Robert C. Eber, Miami, for appellants.
    Krongold & Bass and Paul H. Bass, Miami, for appellees.
    Before PEARSON, KEHOE and SCHWARTZ, JJ.
   PER CURIAM.

The plaintiffs, beneficiaries in a life insurance contract, sued their insurance carrier for failure to pay benefits upon a controverted claim. They added a count claiming an independent tort for the failure to pay the claim, alleging bad faith on the part of the insurance company and failure to make a proper investigation of the claim. Discovery was had and, upon both parties moving for summary judgment, affidavits were filed. The trial court entered a partial summary judgment holding that there were no genuine issues of material fact on count two, which claimed punitive damages, and that the defendant insurance company was entitled to a summary judgment on that count. This appeal is from that partial summary judgment.

The trial judge correctly determined that there were no genuine issues of material fact with regard to the allegations in count two. The defendant was entitled to summary judgment under the rule set forth in Allstate Insurance Company v. Gibbs, 340 So.2d 1202 (Fla. 4th DCA 1976). See also Baxter v. Royal Indemnity Company, 285 So.2d 652 (Fla. 1st DCA 1973).

Affirmed.


text:
    Frank JAMES, Appellant, v. The STATE of Florida, Appellee.
    No. 78-898.
    District Court of Appeal of Florida, Third District.
    Jan. 9, 1979.
    Bennett H. Brummer, Public Defender and Mark King Leban, Special Asst. Public Defender, for appellant.
    Jim Smith, Atty. Gen., and Joel D. Rosen-blatt, Asst. Atty. Gen., for appellee.
    Before PEARSON, BARKDULL and HUBBART, JJ.
   PER CURIAM.

Affirmed. See: Talley v. State, 160 Fla. 593, 36 So.2d 201 (1948); Williams v. State, 110 So.2d 654 (Fla.1959); State v. State-wright, 300 So.2d 674 (Fla.1974); Section 924.33, Florida Statutes (1977).


text:
    LIBRA ENTERPRISES, INC., Appellant, v. LANCE, INC., Appellee.
    No. 78-930.
    District Court of Appeal of Florida, Third District.
    Jan. 9, 1979.

      Earl H. Galitz, Miami, for appellant.
    Mahoney, Hadlow & Adams and Harley S. Tropin, Miami, for appellee.
    Before PEARSON, HENDRY and BARKDULL, JJ.
   PER CURIAM.

This is an appeal by plaintiff/appellant of an order granting defendant/appellee’s motion for judgment on the pleadings. Our review of the complaint convinces us that the complaint was sufficient to withstand the defendant/appellee’s attack upon it by way of motion for judgment on the pleadings. Therefore, the order appealed is reversed and the cause is remanded for further proceedings. See Bradham v. Hayes Enterprises, Inc., 306 So.2d 568 (Fla. 1st DCA 1975), and International Design, Inc. v. Rubin’s Franchises, Inc., 247 So.2d 778 (Fla. 3d DCA 1971).

Reversed and remanded.


text:
    Ivy LOVE, Appellant, v. The STATE of Florida, Appellee.
    No. 78-2316.
    District Court of Appeal of Florida, Third District.
    Jan. 9, 1979.
    Ivy Love, in pro. per.
    Jim Smith, Atty. Gen., for appellee.
    Before PEARSON, HENDRY and HUB-BART, JJ.
   PER CURIAM.

Petitioner, pursuant to Fla.R.App.P. 9.140(g) having taken this appeal from the summary denial of his motion for post conviction relief under Fla.R.Crim.P. 3.850 and this court having considered the record presented and having further determined that it conclusively appears therefrom that petitioner is entitled to no relief, the denial of his motion is affirmed.