text:
    Lewis Edward JOHNSON, Jr., Appellant, v. STATE of Florida, Appellee.
    No. 79-106.
    District Court of Appeal of Florida, Second District.
    May 30, 1979.
    Jack 0. Johnson, Public Defender, and P. Douglas Brinkmeyer, Asst. Public Defender, Bartow, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Richard G.. Pippinger, Asst. Atty. Gen., Tampa, for appellee.
   DANAHY, Judge.

The judgment against appellant is affirmed, but we remand this case for resen-tencing of appellant in accordance with the provisions of Section 39.111(6), Florida Statutes (1978 Supp.).

Appellant, age 17 at the time of the offense with which he was charged, was transferred from the juvenile division to the criminal division of the circuit court for prosecution as an adult for a sexual battery alleged to have been committed on April 16, 1978. He was tried in October 1978, was convicted, and came before the trial court for sentencing on December 14, 1978. Defense counsel pointed out that there had been an amendment to Section 39.111, Florida Statutes, concerning the procedure to be followed in disposition of cases involving children transferred for criminal prosecution. The trial court ruled that the new procedure did not apply to appellant because his offense was committed prior to October 1, 1978, the effective date of this amendment, also noting that appellant had reached age 18.

Any intimation that appellant’s age at the time of sentencing would preclude the application to him of Section 39.111(6), Florida Statutes (Supp.1978), can be quickly disposed of. Section 39.111 deals with children prosecuted as adults. Within the meaning of Chapter 39, a “child” is defined in Section 39.01(4), Florida Statutes (1977), as “any married or unmarried person under the age of 18 years or any person who is charged with a violation of law occurring prior to the time that person reached the age of 18 years.” (Emphasis supplied.) Appellant falls within this definition.

Furthermore, contrary to the trial court’s ruling, the fact that appellant’s offense was committed prior to the effective date of Section 39.111(6) does not render this statute inapplicable to appellant. Section 39.111(6) is procedural. See McShay v. State, 321 So.2d 464 (Fla.4th DCA 1975). While statutory changes in the law are normally presumed to apply prospectively, procedural changes are to be applied to pending cases. Heilmann v. State, 310 So.2d 376 (Fla.2d DCA 1975); McShay v. State, supra. See also Hall v. State, 358 So.2d 891 (Fla.2d DCA 1978); Hamilton v. State, 306 So.2d 600 (Fla.2d DCA 1975).

The trial court’s failure to comply with the requirements of Section 39.111(6) cannot be deemed harmless in the instant case. The trial court failed to justify its decision to impose adult sanctions against appellant except to make the following observations at the sentencing hearing: “I believe him [appellant] to be a dangerous person whose freedom cannot be tolerated,” and “And I have advised Mr. Johnson my view — that is, that he is too dangerous to remain at large.” In Section 39.111(6)(c) the legislature set forth specific criteria to be considered by the trial court in determining whether to impose adult sanctions. The trial court’s conclusion that appellant was “too dangerous to remain at large” cannot be presumed to have been predicated upon consideration of all of the specified criteria in the absence of some affirmative indication on the record that all of the criteria were considered.

Moreover, the trial court did not put its findings in writing, as required by the legislature in Section 39.111(6)(d). The statutory scheme is similar to that mandated for sentencing a defendant as an habitual offender under Section 775.084, Florida Statutes, in that it requires specific justification and reasons for imposition of the sentence. See Fry v. State, 359 So.2d 584 (Fla.2d DCA 1978) (evidence to justify enhanced sentence must be specified); McClain v. State, 356 So.2d 1256 (Fla.2d DCA 1978) (record must support trial court’s conclusion that enhanced sentence is necessary).

Finally, it should be emphasized that the statute clearly states that the criteria to be considered and the guidelines to be followed are to be deemed mandatory. § 39.111(6)(j); See also § 39.02(5)(a) and (6).

Accordingly, the judgment is affirmed, but the sentence is vacated and the cause remanded for resentencing pursuant to the provisions of Section 39.111(6), Florida Statutes (Supp.1978).

GRIMES, C. J., and HOBSON, J., concur.

      . The amendment to which defense counsel was referring was the addition of a new subsection (6) to Section 39.111. That subsection provides:

        (6) When a child has been transferred for criminal prosecution and the child has been found to have committed a violation of Florida law, the following procedure shall govern the disposition of the case:
      (a) At the disposition hearing the court shall receive and consider a predisposition report by the department regarding the suitability of the child for disposition as a child.
      (b) After considering the predisposition report, the court, in order to determine suitability, shall give all parties present at the hearing an opportunity to comment on the issue of sentence and any proposed rehabilitative plan. These parties shall include, if present: The parents or guardians of the child, the child’s counsel, the state attorney or assistant state attorney, representatives of the department, the victim or his representative, if any, representatives of the school system, and the law enforcement officers involved in the case.
      (c) Suitability or nonsuitability for adult sanctions shall be determined by the court before any other determination of disposition. The suitability determination shall be made by reference to the following criteria:
      1. The seriousness of the offense to the community and whether the protection of the community requires adult disposition.
      2. Whether the offense was committed in an aggressive, violent, premeditated, or willful manner.
      3. Whether the offense was against persons or against property, greater weight being given to offenses against persons, especially if personal injury resulted.
      4. The sophistication and maturity of the child, as determined by consideration of his home, environmental situation, emotional attitude, and pattern of living.
      5. The record and previous history of the child, including:
      a. Previous contacts with the department, the Department of Offender Rehabilitation, other law enforcement agencies, and courts.
      b. Prior periods of probation or community control.
      c. Prior adjudications that the child committed a violation of law, and
      d. Prior commitments to institutions:
      6.The prospects for adequate protection of the public and the likelihood of reasonable rehabilitation of the child if he is assigned to juvenile services and facilities,
      d. Any decision to impose adult sanctions shall be in writing, and it shall be in conformity with each of the above criteria. The court shall render a specific finding of fact and the reasons for the decision to impose adult sanctions. Such order shall be reviewable on appeal by the child pursuant to s. 39.14.
      ******
      (g) The court may receive and consider any other relevant and material evidence, including other written or oral reports, in its effort to determine the action to be taken with regard to the child, and may rely upon such evidence to the extent of its probative value, even though not competent in an adjudicatory hearing.
      (h) The court shall notify the victim of the offense of the hearing and shall notify, or subpoena if necessary, the parents or legal custodians of the child to attend the disposition hearing if they reside in the state.
      (i) The predisposition report shall be made available to the child’s counsel and the state attorney by the department upon completion of the report and prior to the disposition hearing.
      (j) It is the intent of the Legislature that the foregoing criteria and guidelines shall be deemed mandatory and that a determination of disposition pursuant to this subsection is subject to the right of the child to appellate review pursuant to s. 39.14.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    Franz P. BUCKREM, Appellant, v. STATE of Florida, Appellee.
    No. 79-171.
    District Court of Appeal of Florida, Second District.
    May 30, 1979.
    Jack 0. Johnson, Public Defender, and P. Douglas Brinkmeyer, Asst. Public Defender, Bartow, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Michael A. Palecki, Asst. Atty. Gen., Tampa, for appellee.
   PER CURIAM.

On January 12, 1979, the court entered a judgment and sentence adjudging appellant guilty of first degree murder and assault with intent to commit first degree murder and sentencing him to life imprisonment for murder and fifteen years consecutive for assault. We affirm the adjudication of guilt and sentence for assault because there is already in existence a valid judgment and sentence for assault which the court entered on August 15, 1975. We also strike any reference to credit time since proper credit is included in the 1975 judgment. Finally, we note that the sentences for murder and assault will run consecutively.

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


author: CROSS, Judge.

text:
    TUTTLE/WHITE CONSTRUCTORS, INC., and Federal Insurance Company, Appellants, v. HUGHES SUPPLY, INC., Suncoast Village, Inc., et al., Appellees.
    No. 76-2747.
    District Court of Appeal of Florida, Fourth District.
    May 31, 1979.

      R. L. Russell of Van Den Berg, Gay & Burke, Orlando, for appellants.
    James M. Corrigan of Maguire, Voorhis & Wells, Orlando, for appellee Hughes Supply, Inc.
   CROSS, Judge.

Tuttle/White Constructors, Inc., and its surety, Federal Insurance Company, appeal final judgment entered in favor of Hughes Supply, Inc., in an action to recover payment for materials supplied to a construction project. We reverse.

Suncoast Village was conceived as a mul-ti-building office, motel, restaurant and-parking complex in St. Petersburg, Pinellas County, Florida. Suncoast Village, Inc. (hereinafter Suncoast), as owner, entered into a contract with Tuttle/White Constructors, Inc. (hereinafter Tuttle/White), as prime contractor, for construction of the Suncoast Village complex. Tuttle/White entered into a subcontract with Murphy Electric Company of Florida (hereinafter Murphy), under which Murphy contracted to perform the electrical work on the project for the sum of $298,109. Hughes Supply, Inc. (hereinafter Hughes), orally agreed to furnish necessary electrical materials to Murphy for use in Suncoast Village.

Hughes first began to supply materials to Murphy on June 25, 1974. It was not until January 11, 1975, that Hughes served a Notice to Owner to inform Suncoast that it was acting as materialman for Murphy. By this time Murphy had received progress payments totaling $254,008.80. On January 24, 1975, Hughes requested and obtained from Tuttle/White a letter guaranteeing payment for materials thereafter supplied by Hughes to Murphy. Three days later, on January 27, 1975, as a result of Murphy’s insolvency, Tuttle/White sent to Murphy a notice terminating their respective contract on the Suncoast Village project. Hughes received a copy of this notice of termination.

Tuttle/White then engaged Racecon, Inc. to complete the balance of the electrical work formerly covered by Murphy’s subcontract. Racecon successfully performed its obligations, and allegedly received $33,-299.45 in payment from Tuttle/White. Tuttle/White allegedly expended an additional $4,840.13 for materials to aid in completion of the electrical work performed by Racecon.

On April 29, 1975 Hughes recorded its claim of lien and demanded payment in the amount of $32,060.06 for materials supplied to Murphy for the Suncoast Village project. Tuttle/White refused payment. Suit was then instituted by Hughes in Pinellas County against Tuttle/White, Suncoast and Murphy. On motion by all parties venue was changed to Orange County, Florida. Meanwhile, Tuttle/White arranged to post a lien transfer bond in the amount of $37,930.87 with Federal Insurance Company as surety. Subsequently, Hughes filed its amended complaint joining Federal Insurance Company as a party defendant, and sought to foreclose its lien against the transfer bond. Thereafter, final judgment was entered in favor of Hughes against all defendants with Hughes being awarded the sum of $41,730.08. Tuttle/White and Federal petitioned for rehearing, which was denied. This appeal then followed.

Section 713.06(1), Florida Statutes (1977), provides that persons not in privity with the owner may establish a lien on the owner’s real property to the extent necessary to guarantee payment for labor, services or materials furnished in accordance with contract. Subsection (2) of Section 713.06 requires that the prospective lienor serve a notice on the owner setting forth certain specified information either (1) before commencing to furnish services or materials; (2) not later than 45 days from commencing to furnish services or materials; or (3) any time before the furnishing of the contractor’s affidavit under Section 713.06(3)(d)(1), Florida Statutes, or abandonment, whichever shall first occur. As construed, this statute requires the filing of notice to owner not later than 45 days after commencing to furnish services or materials. Bard Manufacturing Co. v. Albert & Jamerson Bldg. Supply Corp., 212 So.2d 13 (Fla. 4th DCA 1968).

However, the failure of a prospective lienor to file notice to owner within forty-five days does not act as an absolute bar to recovery. Konsler Steel Co. v. Partin, 356 So.2d 264 (Fla.1978); Moretrench Corp. v. Bronson & Veal Enterprises, Inc., 262 So.2d 206 (Fla. 4th DCA 1972). The case of Crane Co. v. Fine, 221 So.2d 145 (Fla.1969), recognized the right of a supplier of services or materials to proceed to establish an equitable lien. Under the holding in Crane, lienors who file notice after the forty-five day limit still may participate either in full or pro rata to the extent funds remain available after payment has been made to “priority” lienors. Moretrench Corp. v. Bronson & Veal Enterprises, Inc., supra. Priority lienors are those lienors who either have given proper notice or whose time for serving such notice has not yet expired. Section 713.06(3)(c)(4), Florida Statutes. In order to participate, the lienor must show an uncompleted contract at the time that the owner received notice by service of a late notice of intention or service of the claim of lien. Torres v. MacIntyre, 334 So.2d 59 (Fla. 3d DCA 1976). A contract remains “uncompleted” when funds remain due under a contract to which the lienor would be entitled.

Appellee-Hughes claims it is entitled to participate in any progress payments made by appellant after Hughes filed its tardy notice.

Proper payment of progress payments is governed by Section 713.06(3)(c)(l), Florida Statutes, which provides:

The owner shall pay or cause to be paid . the sum then due to each lienor giving notice prior to the time of said payment.

However, the appellee does not fall within the above quoted provision. Even though appellee’s notice was given prior to the making of certain progress payments under the primary direct contract, it is not entitled to participate since the term “lienor giving notice” is specifically defined as those lienors who have duly served a notice to owner. Section 713.01(19), Florida Statutes. Since appellee’s notice was not served within the statutory period, such notice cannot be said to be duly served. Any right of appellee to participate in progress payments must be governed by the provisions of Section 713.06(3)(c)(4), Florida Statutes, which provides:

4. No person furnishing labor or material or both who is required to serve a notice under subsection (2)(a), and who did not serve such notice and whose time for such service has expired shall be paid because he is listed in an affidavit furnished by the contractor under this subsection until all lienors giving notice and lienors listed in such affidavit whose time for serving such notice has not expired have been paid in full. If there is a balance due the' contractor after all of said lienors have been paid in full, any of said persons who failed to serve timely notice shall be paid in full or pro rata according to the amounts of their claims to the extent of such balance due the contractor; provided, this shall not be construed to permit any claim or demand whatsoever by said persons failing to serve timely notice against the owner. (Emphasis added.)

Clearly, the use of the term “shall” indicates a legislative intent that lienors, even those who have filed a late notice to owner or no notice at all be allowed to participate in progress payments before the prime contractor is to be paid. Of course, the use of an affidavit of the contractor for progress payments is strictly optional for the owner. See Connor v. Dreyer, 335 So.2d 352 (Fla. 2d DCA 1976).

The instant record is bare of any reference to the use of a progress payment affidavit. Thus, in the absence of such affidavit, Hughes would have no right to participate in progress payments because of its failure to give timely notice.

The Mechanic’s Lien Statute also establishes a mechanism to facilitate payment of lienors from the final payment due to a contractor under a direct contract. Section 713.06(3)(d)(5), Florida Statutes, specifies that the owner shall retain the last payment due to a contractor under a direct contract, or ten per cent of the original contract price, whichever is larger. This sum may not be disbursed to a contractor until the contractor has filed an affidavit of lienors wherein the contractor is required to list all lienors to whom *an amount remains due, whether such lienors have given notice or not. Upon receipt of this affidavit, the owner is empowered, pursuant to Section 713.06(3)(d)(2), Florida Statutes, to pay all lienors from this retained fund. Section 713.06(3)(d)(2), Florida Statutes, provides:

“If the contractor’s affidavit recites outstanding bills for labor, services or materials, the owner may, after giving the contractor at least ten days written notice pay such bills in full direct to the person or firm to whom they are due, if the balance due on a direct contract at the time the affidavit given is sufficient to pay them and lienors giving notice, and shall deduct the amount so paid from the balance due the contractor. Lienors listed in said affidavit not giving notice may be paid nevertheless.” (Emphasis added.)

If the amount retained by the owner is insufficient to pay all lienors, whether they have given notice or not, the burden is placed squarely on the contractor to provide the difference by subsection (3) of Section 713.06(3)(d), Florida Statutes, which provides:

If the balance due is not sufficient to pay in full all lienors listed in the affidavit given by the contractor at that time and other lienors giving notice, the owner shall pay no money to anyone until such time as the contractor has furnished him with the difference .

If the contractor fails to provide the difference within ten days, the owner is then required to disburse these retained funds by paying all lienors properly giving notice in full with the remainder to be distributed on a pro rata basis to the remaining lienors pursuant to Section 713.06(3)(c)(4). Once the owner has distributed the retained funds according to this plan and paid any •balance remaining to the contractor, he is then relieved of any further liability under the direct contract. Section 713.06(3)(d)(5), Florida Statutes.

It is argued that the Mechanic’s Lien law was enacted to place the burden on the contractor to see that all lienors known to either the owner or the contractor be paid. However, Tuttle/White argues that such an interpretation places the contractor at a disadvantage in cases such as the present one wherein a materialman or other sub-subcontractor has delayed in giving its notice to the owner until all or substantially all of the funds available under a subcontract have been disbursed. Tuttle/White argues that such persons who delay in giving notice until available funds have been disbursed should be limited in their participation to the sum remaining funded under any particular subcontract. Tuttle/White’s position seems to receive some support from the caselaw.

In Crane v. Fine, supra, our supreme court was called upon to decide whether a materialman to a subcontractor, who had failed to file its notice of intention to claim lien within forty-five days or its claim of lien within ninety days, was entitled to an equitable lien on an amount remaining undistributed under a subcontract. The court felt in view of the special and peculiar equities in the case that the materialman was entitled to be paid out of the proceeds remaining undistributed under the subcontract. In discussing the effect of the forty-five-day notice to owner provision of Section 84.061, Florida Statutes, the court stated:

It is our duty to construe this statute liberally “so as to afford the laborers and materialmen the greatest protection compatible with justice and equity.” Hendry Lumber Co. v. Bryant, 1939, 138 Fla. 485, 189 So. 710. In the light of its benevolent purpose, and in the absence of an express direction to the contrary, we think that the 45-day notice provided for in the 1963 Act must have been intended by the Legislature to have the same force and effect as the 30-day notice provided for in the former Act — that is, as establishing a “priority” category for lienors who give notice to the owner within 45 days of beginning to furnish materials or services; and that, as under the former Act, lienors may give notice to the owner after the expiration of the 45-day period and participate in full, or pro rata, to the extent of such sums as remain due from the owner to the contractor after the payment in full of the “priority” lienors. The notice must, of course, be given to the owner within the limitations period prescribed for the recording of a Claim of Lien and, for obvious reasons, before the owner has paid out (either in a progress payment or the final payment) that portion of the sums due under the direct contract to which a lienor would be entitled. For example, a materialman who is in privity only with a subcontractor must give notice to the owner before his subcontractor has been paid in full in order to participate in a progress or a final payment. (Emphasis added.)

The emphasized portion of the supreme court’s opinion in Fine was relied upon by the First District Court of Appeal in Carter Sand Co., Inc. v. Baymeadows, Inc., 320 So.2d 14 (Fla. 1st DCA 1975), in holding that failure of a materialman to give notice to the owner before the subcontractor had been paid in full prevented the material-man’s participation in a progress or final payment.

However, to hold that materialmen such as Hughes are completely barred from recovering payment once the amount funded under a particular subcontract has been disbursed, not only violates the express purpose of the Mechanic’s Lien law, to-wit: insuring the lienor’s right to receive payment, but also ignores the express language adopted in Section 713.06, Florida Statutes, which creates a fund at the conclusion of the direct contract to ensure that all lienors will receive their due. See Konsler Steel Co. v. Partin, supra. Sub judice, when Murphy defaulted after receiving $254,008 out of a total $298,109 funded under the subcontract, Tuttle/White was forced to hire a second subcontractor, Racecon, to complete the work. Racecon, because its time for filing its notice to owner had not expired, enjoyed the priority status as discussed by the supreme court in Fine. Thus, it was entitled to payment in full as a priority lienor from the funds remaining allocated under the electrical subcontract. See Alton Towers, Inc. v. Coplan Pipe and Supply Co., Inc., 262 So.2d 671 (Fla.1972); Bill Ader, Inc. v. Maule Industries, Inc., 230 So.2d 182 (Fla. 4th DCA 1969). Hughes was relegated to receiving only a pro rata share under the subcontract due to its delay in giving its notice to owner. Hughes was limited by its inferior status as a lienor to participating only if a progress payment affidavit was required by the owner.

However, this limitation did not exist when the final payment under the direct contract was to be made. The Mechanic’s Lien law is quite specific as to how and when such final payment is to be made and as to who may participate therein. Clearly, under the statute Hughes enjoyed the right to participate in the distribution of the final payment according to its status and up to the total amount due and owing provided such payment did not prejudice the right to full payment of those lienors who enjoyed priority status. Any other result would be in clear contravention of the express dictates of the statute which envisions the situation where funds remain undisbursed under any of the existing subcontracts in a multi-faceted construction project to which the primary contractor would not in equity and good conscience be entitled.

In conclusion, we note the manner in which Hughes attempted to prove at trial the amount of materials furnished on the Suncoast Village project. Before a ma-terialman is entitled to receive payment under a mechanic’s lien, there must be presented to the trial court evidence establishing that the materials were actually delivered to the project. See Beautyware Plumbing Supply Co. v. Columbiad Apart ments, Inc., 215 So.2d 42 (Fla. 4th DC A 1968). The presumption recognized in Section 713.01(6), Florida Statutes, relating to the incorporation of materials in the improvement project does not come into operation until after evidence sufficient to establish that such materials have been delivered to the site has been presented. American Insurance Co. v. Coley Electric Supply Co., Inc., 354 So.2d 390 (Fla. 1st DCA 1978). The burden is on the claimant to establish that such materials were actually delivered to the construction site before the benefit of the statutory presumption may be afforded the lienor. American Insurance Co. v. Coley Electric Supply Co., Inc., id. In the instant case, we are of the view that Hughes has totally failed to establish any evidence of delivery of those materials furnished to Murphy over the counter at Hughes’ place of business, except for those materials which were expressly identified as being incorporated into the project after the onsite inspection by Hughes’ employee.

We also note the amount of the judgment awarded by the trial court exceeds the amount of the transfer bond posted by Federal Insurance Company. The amount of the transfer bond is expressly established by statute. Section 713.24, Florida Statutes. Hughes could have petitioned to require additional security to be posted when it realized that the expenses involved in prosecuting this claim would exceed the amount of security posted, but chose not to do so. We find nothing in the statutes, however, to prevent the * entry of an unsecured judgment in an amount appropriate to cover such expenses against a losing party other than the surety. A surety may not, however, be held liable for an amount in excess of the bond posted.

Therefore, the final judgment is reversed and the cause remanded to the trial court for determination of whether or not the materials supplied by Hughes were delivered to or incorporated into Suncoast Village, Hughes’ priority status, the availability of monies pursuant to the provisions of Section 713.06(3)(d)(2) and (3), Florida Statutes (1977), and assessment of Hughes’ damages accordingly.

Reversed and remanded.

DOWNEY, C. J., and DAUKSCH, J., concur.

      . Section 84.061, F.S., was subsequently renumbered Section 713.06, F.S.


text:
    William R. MILLER, Appellant, v. Sandra MILLER, Appellee.
    No. 77-1664.
    District Court of Appeal of Florida, Fourth District.
    May 31, 1979.

      Roger F. Borrello, Plantation, for appellant.
    Gregory Keith Jones of Ruf & Jones, Fort Lauderdale, for appellee.
   PER CURIAM.

In this appeal and cross appeal from a final judgment of dissolution of marriage the appellant-husband contests the financial aspects of the final judgment and the ap-pellee-wife contests the split custody award.

We have reviewed the entire record in this cause which consisted solely of the testimony of the parties and two psychologists who testified concerning the custody issue. Although the evidence regarding the respective financial positions of the parties is rather sparce we find there is sufficient evidence to support the conclusions of the trial judge in this respect.

Concerning the split custody award the trial judge specifically determined that both were fit and proper persons to have custody of the children. Under such circumstances one would expect the trial judge to award custody of three young daughters to the mother. Nevertheless, the judge awarded custody of the oldest child, who was the natural child of the wife and adopted by the father, to the mother. Custody of the two younger children, both of whom were the natural children of the parties, was awarded to the father.

Notwithstanding the provisions of Section 61.13(2)(b), Florida Statutes (1977) which provides that the father of a child shall be given the same consideration as the mother in determining custody, the law in this State remains to the effect that the mother of infant children shall receive prime consideration when other factors are equal. At the time of the dissolution in this case the children were 12, 7 and 4 years of age and normally, other factors being equal, the mother should be given prime consideration for their custody. It is also well established that the law does not favor separating the children of one family from each other except for the most compelling reasons. Arons v. Arons, 94 So.2d 849 (Fla.1957). Considering the entire record in this case, which we have reviewed in detail, we find substantial competent evidence to support the trial court’s conclusion that custody of the children should be divided between the parents. All other factors were not equal albeit the court found both parties to be fit and proper persons. On the basis of the record before us the trial court could well have determined that the best interests and welfare of the children would be served by his ultimate conclusion.

Perhaps we, sitting as triers of the facts, may have reached a different conclusion. The trial judge, however, had the parties before him and considered all of the necessary criteria including, but not limited to, their background, their daily habits, and the desires of the children as expressed in the testimony of the two psychologists and the parents. Absent a clear showing of an abuse of his discretion we may not substitute our judgment for that of the trial judge. Dinkel v. Dinkel, 322 So.2d 22 (Fla.1975). Such an abuse of discretion has not been demonstrated in the case sub judice.

The final judgment is AFFIRMED.

CROSS and MOORE, JJ., and PAUL, MAURICE M., Associate Judge, concur.


text:
    Shannon D. McGREGOR, Appellant, v. Robert B. McGREGOR, Appellee.
    No. 77-2592.
    District Court of Appeal of Florida, Fourth District.
    May 31, 1979.
    Winifred J. Sharp of Johnson, Motsinger, Trismen & Sharp, P. A., Orlando, for appellant.
    Mack N. Cleveland, Jr. of Cleveland, Mize & Bridges, Sanford, for appellee.
   PER CURIAM.

This is an appeal from a final judgment of dissolution of marriage. The wife contends that the child support of $100.00 to be paid by the husband is too low; that the court erred in denying her an award for attorneys fees; and that the court erred in awarding the husband various items of personal property which were jointly owned. The husband claims error in the trial court’s determination that, as between the husband and wife, the wife was a one-third owner of certain real estate owned by the parties and the husband’s father.

As to the amount of the child support, we believe the evidence was undisputed that a greater amount was required to help support the child and that the husband had the ability to pay. Likewise, the evidence as to the ability of the husband and the needs of the wife established that the wife was entitled to some award of attorneys fees.

As to the property matters, the court was without authority to award the husband those items of personal property jointly owned by the parties. Furthermore, we find that the evidence presented to establish the wife’s interest in the property referred to by the parties as the Honeymoon Hill property showed that the husband and wife were to be one-half owners in such property and the husband’s father a one-half owner.

Accordingly, we reverse those portions of the final judgment discussed, supra, and remand with directions that the amount of child support be increased; that the provisions awarding the husband portions of the jointly owned property be vacated; that the wife be awarded attorneys fees, the amount to be determined after hearing by the trial court; and that the portion of the final judgment determining the wife’s interest in the Honeymoon Hill property be vacated.

CROSS, ANSTEAD and MOORE, JJ., concur.


author: BERANEK, Judge. DAUKSCH, Judge,

text:
    Leonard C. WHITE, Appellant, v. FLORIDA REAL ESTATE COMMISSION, Appellee.
    No. 78-1077.
    District Court of Appeal of Florida, Fourth District.
    May 31, 1979.
    James S. Theriac, III, of Holcomb & Theriac, Cocoa, for appellant.
    Howard Hadley, Gen. Counsel, and Kenneth J. Cotter, Staff Counsel, Orlando, for appellee.
   BERANEK, Judge.

This is an appeal from an order of the Florida Real Estate Commission which revoked appellant’s license as a real estate salesman under Chapter 475, Florida Statutes, the Florida Real Estate License Law. Appellant White was adjudicated guilty of having accepted double payment of a commission in a real estate transaction in violation of Section 475.25(l)(a) Florida Statutes (1977); in failing to account for and deliver escrow money in violation of Section 475.-25(l)(c), Florida Statutes (1977); in failing to immediately place with his registered employer monies entrusted to him as an agent for his registered employer in violation of Section 475.25(l)(i), Florida Statutes (1977); and of being guilty of collecting money in connection with a real estate brokerage transaction not in the name of his employer and without express consent of his employer in violation of Section 475.-42(l)(d), Florida Statutes (1977).

The basic controversy centers around the sale of a piece of property for $3,000 in which appellant acted as the real estate salesman. It is asserted that he took a $300 commission from the seller and subsequently took a commission of $140 from the buyer. Appellant denied taking any commission whatsoever from the buyer. He admits receiving $140 but contends this was simply a payment to him for numerous services which had nothing whatsoever to do with the real estate transaction. It appears uncontroverted in the record that appellant did befriend the purchasers. He furnished them transportation and at one point drove them to an out-of-town location to secure medical care. He was instrumental in having a well drilled for them and performed numerous other services which might well have justified the payment of the $140. This explanation by appellant was rejected and he was found to have taken a double commission. This finding was based on the deposition testimony of a single witness.

We reverse the order of revocation below. The administrative complaint and the proposed order which was later adopted by the Florida Real Estate Commission charged appellant only with violations of Section 475.25(1), Florida Statutes (1977). There were absolutely no violations charged or proved within subsections (2) or (3) of this statute. Subsection (1) deals with suspension whereas subsections (2) and (3) deal with revocation. Here the order of the Commission does not make factual findings relating to the statutory basis for revocation and does not find appellant guilty under either subsection authorizing revocation. It appears that all charges and proofs and the order of the Commission relate to grounds for which only suspension is allowed. There is no basis for revocation alleged or proved in this case. We are cognizant of Florida Real Estate Commission v. Webb, 367 So.2d 201 (Fla.1978) holding a penalty within the permissible range of statutory authority cannot be reviewed by this Court. Here the penalty of revocation was not authorized by statute and the order below is, therefore, reversed and the matter remanded for further proceedings consistent herewith.

REVERSED AND REMANDED WITH INSTRUCTIONS.

CROSS, J., concurs.

DAUKSCH, J., concurs specially with opinion.

DAUKSCH, Judge,

concurring specially:

While not in disagreement with the majority opinion I am of the conviction this appellant should have his license reinstated without further proceedings or alternative penalty. The evidence was not at all sufficient to support the charges, given the many inconsistencies and some obvious “mistakes of fact.” I did not substitute my judgment for that of the trier of fact. I have reviewed the evidence in light of its legal sufficiency and find it quite lacking which is completely out of character for the Florida Real Estate Commission, which in my experience in reviewing the usually well-substantiated and well-reasoned actions of that commission is of the highest quality.

      . Although not necessary to a determination of this appeal, we note that the testimony of the single witness supporting the double commission was extremely confusing and vague. This testimony was by deposition.


author: ANSTEAD, Judge. CROSS, Judge,

text:
    Patricia Ann PEARSON, Appellant, v. STATE of Florida, Appellee.
    No. 78-1121.
    District Court of Appeal of Florida, Fourth District.
    May 31, 1979.

      Richard L. Jorandby, Public Defender, West Palm Beach, and Barry M. Cohen, North Palm Beach, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and John D. Cecilian, Asst. Atty. Gen., West Palm Beach, for appellee.
   ANSTEAD, Judge.

The appellant, Patricia Ann Pearson, was found guilty of possession of hashish and attempted unlawful introduction of contraband into a penal institution. The trial court placed her on probation for three years. Appellant claims error in the denial of her motion for judgment of acquittal and in the order placing her on one term of probation for both offenses.

We find no error in the trial court’s denial of her motion for judgment of acquittal made on the grounds that the offense of attempted introduction of contraband into a penal institution did not track the exact words of the statute. Leeman v. State, 357 So.2d 703 (Fla.1978).

However, we conclude that it was error for the trial court to impose a single, general term of probation for two offenses. In Dorfman v. State, 351 So.2d 954 (Fla.1977) it was held that a single general sentence may not be imposed for two or more crimes. The state claims that Dorfman should not apply since an order of probation is by definition not a sentence but rather contemplates the withholding of any sentence. Brown v. State, 302 So.2d 430 (Fla. 4th DCA 1974). However, we believe this is a distinction without a difference, as virtually all of the same reasons for avoiding general sentences, as set out in Dorfman, supra, apply to general terms of probation:

A general sentence aggregates all of the defendant’s individual crimes into a new whole. It is not possible to assume that the sentence term would have been the same even if one of the crimes had not been committed. In this case, for example, the district court affirmed Dorfman’s general sentence because it fell within the maximum allowed by law for any one of the several counts on which he was convicted. We cannot know whether the trial judge intended this general sentence to be the equivalent of nine concurrent three year sentences, nine consecutive sentences which when added together aggregate three years, or a single sentence which he determined to be proper for the totality of crimes before him. It is virtually impossible to show that there has been any prejudice to Dorfman, particularly since he pled guilty to all nine counts. The evil of a general sentence, however, inheres in the uncertainty that its inscrutability creates, for if the trial judge had committed a reversible error as to any count for any reason, the entire sentence would have to be vacated. Then, on resentencing, a failure to reduce a new sentence for the affirmed conviction or convictions could raise complications comparable to those arising from the imposition of a more severe sentence when a defendant is convicted on retrial of the charges which underlay the reversed conviction. We conclude and now hold that general sentences are no longer proper and they may not be imposed by any trial court. (351 So.2d at 956, 957)

Appellant was convicted of two separate offenses. The maximum term of probation is limited in each case. She is entitled to a set term of probation in each case to run consecutively or concurrently with the term set in the other case. That way there can be no question as to the appellant’s status at any given point in time.

Since we have concluded that the general order of probation was in error, such order is hereby reversed and remanded with directions for further proceedings in accord with this opinion.

DOWNEY, C. J., concurs.

CROSS, J., dissents with opinion.

CROSS, Judge,

dissenting:

I respectfully dissent only as to that part of the majority’s opinion that requires reversal.


text:
    Sheri M. KASSELL, Appellant, v. STATE of Florida, Appellee.
    No. 78-1389.
    District Court of Appeal of Florida, Fourth District.
    May 31, 1979.
    Norman Marcus of Marcus & Stark, P.A., Plantation, and Kay, Roderman & Silber, P.A., Fort Lauderdale, for appellant.
    Robert L. Shevin, Atty. Gen., Tallahassee, and John D. Cecilian, Asst. Atty. Gen., West Palm Beach, for appellee.
   PER CURIAM.

Petition for Writ of Certiorari is hereby DENIED.

DAUKSCH, LETTS and BERANEK, JJ., concur.


author:
PER CURIAM.
      ANSTEAD, Judge,

text:
    James BROWN, Appellant-Petitioner, v. George C. MORELLA, and Helen L. Morella, Individually and as the Personal Representative of the Estate of Gregory C. Morella, Appellees-Respondents.
    Nos. 78-1498, 78-1538.
    District Court of Appeal of Florida, Fourth District.
    May 31, 1979.
    R. Benjamine Reid of Bradford, Williams, McKay, Kimbrell, Hamann & Jennings, P.A., Miami, for appellant-petitioner.
    David L. Kahn, Fort Lauderdale, for ap-pellees-respondents.
   ON PETITION FOR REHEARING

PER CURIAM.

The petition for rehearing is denied.

CROSS and DAUKSCH, JJ., concur.

ANSTEAD, Judge,

dissenting with opinion.

By appeal and petition for writ of certio-rari the appellant-petitioner seeks .review of an order setting aside an order of dismissal for failure to prosecute. The cause was dismissed pursuant to Fla.R.Civ.P. 1.420(e) on March 2, 1978. On March 15, 1978, a motion seeking to set aside the order of dismissal was filed and on June 20, 1978, that motion was granted.

Rule 1.420(e) requires the dismissal of an action in which it appears on the face of the record that no activity has occurred in the cause for a period of one year, unless good cause is shown in writing, at least five days before the hearing on the motion to dismiss, as to why the action should remain pending. In this case there were two defendants, the appellant-petitioner Brown and the Greyhound Bus Company. Brown filed a motion to dismiss on February 16, 1978, and Greyhound filed a motion to dismiss on February 23,1978. A hearing was conducted on February 24, 1978, and the cause dismissed on March 2, 1978. Then, on March 15, 1978, appellees-respondents filed a motion for reconsideration seeking to set aside the order of dismissal. That motion alleged:

1. That the motions to dismiss were premature in that the record reflected activity during the year prior to dismissal.
2. That Greyhound’s notice of hearing was insufficient and served less than three days before the hearing on the motion to dismiss.
3. That the statute of limitations would bar the refiling of the suit.

In my opinion this motion was both insufficient and untimely. Van Gorder v. Blank (R) Const. Corp., 341 So.2d 1003 (Fla. 4th DCA 1977).

If we assume that a petition for rehearing was authorized under the rules, the petition here was untimely as more than ten days had passed since dismissal. Appel-lees-respondents contend the petition was really a motion under Rule 1.540(b)(4) which provides for relief from void judgments. However, the dismissal order entered here was not void, even if it was entered erroneously. Gross v. Simanonok, 366 So.2d 47 (Fla. 2d DCA 1978); Fames v. Kirk, 251 So.2d 324 (Fla. 1st DCA 1971). Therefore, relief could not have been granted under Rule 1.540(b)(4) even if the order was entered erroneously. If the order was erroneous the appellees-respondents were obligated to take an appeal. Of course, the motion for rehearing did not even claim the order was void under Rule 1.540(b)(4), but rather alleged insufficient notice of the hearing by Greyhound. Interestingly, the motion for rehearing was denied as to Greyhound and granted only as to Brown. Moreover, it is conceded that the first time any objection was raised to the sufficiency of the notice of hearing was in the petition for rehearing. This was too late. Van Gorder, supra.

The record also reflects that the order of dismissal was not entered erroneously. The last activity of record prior to the motions to dismiss and the order of dismissal was the filing of a claim of lien on August 25, 1977, by Security Insurance Company, a non-party to the action, stating its claim of lien for allegedly having paid insurance benefits for the Morellas. That would not prevent a dismissal. The record then reflects the filing by Brown, on February 8, 1977, of notices taking depositions of three witnesses, and the filing on February 16, 1977, of returns of subpoenas for those three witnesses reflecting that the witnesses could not be located and served. It is conceded that the depositions were never taken. Prior to that the record reflects the filing of answers by Brown on August 13, 1976, to interrogatories propounded by Greyhound. There is simply no record activity within the year prior to dismissal. Even if you concede Brown’s motion was premature, it had certainly matured by the time of the hearing on February 24 and the entry of the order of dismissal on March 2, both of which dates arrived and passed without further activity by the appellees-re-spondents, who had actually taken no action in the case since the filing of the lawsuit more than two years before. Greyhound’s motion was clearly timely, and under Rule 1.420(e), after one year of inactivity, unless good cause is shown, the cause “shall be dismissed by the court on its own motion or on motion of any interested person, whether a party to the action or not . . .” The granting of Greyhound’s motion would be as effective to dismiss the action as would be the granting of Brown’s motion.

Finally, the passage of the limitation period is not grounds for denying or setting aside a dismissal. F.M.C. Corporation v. Chatman, 368 So.2d 1307 (Fla. 4th DCA 1979).

I would reverse the order reinstating the cause of action.

      . Florida East Coast Railway Company v. Southern Sanitation Service, Inc., 370 So.2d 1200 (Fla. 4th DCA 1979).


author: McCORD, Chief Judge.

text:
    Kathryn A. HILL, Appellant/Petitioner, v. Phillip E. HILL, Sr., Appellee/Respondent.
    No. JJ-470.
    District Court of Appeal of Florida, First District.
    June 1, 1979.
    Frank A. Baker, of Bill A. Corbin Law Offices, Blountstown, for appellant/petitioner.
    No appearance for appellee/respondent.

      Donna H. Stinson, Dept, of Health and Rehabilitative Services, Tallahassee, amicus curiae.
   McCORD, Chief Judge.

This action was filed as an interlocutory appeal from a March 30, 1978, order of the trial court denying appellant’s petition to compel discovery. That nonfinal order is not subject to review. See Fla.App.R. 9.130. We treat the appeal, however, as a petition for common law writ of certiorari and reverse.

This review arose out of a divorce action between appellant/petitioner wife and ap-pellee/respondent husband upon the issue of custody of the parties’ two-year-old son. Based upon an agreement of the parties, the trial court ordered the “Social Economic Service” (the Department of Health and Rehabilitative Services) to furnish a written report on the question of custody. An investigation was then made by that agency, and a report was filed by Velma P. Swaine as a representative of the Department of Health and Rehabilitative Services. The report contains the statements and opinions of unidentified persons to the effect that the wife was cohabiting with her employer; that the employer’s home was an unhealthy environment for the child; that the wife was not living with the child in her original mobile home; that the wife was guilty of violent actions toward the husband on at least two occasions even though the husband did nothing to provoke either; and the opinion, of local law enforcement officers and an unspecified person in the judicial system that the child should not be with the wife. Ms. Swaine recommended that the child’s custody be awarded to the husband. The wife then subpoenaed Ms. Swaine for her deposition, and at the taking thereof, Ms. Swaine refused to answer any questions concerning her report. The wife then filed a petition requesting the court to require Ms. Swaine to submit to discovery deposition and to answer questions concerning her report, contending that the wife cannot obtain evidence to rebut the hearsay statements of unidentified persons contained in the report unless she is permitted to obtain by discovery the names and addresses of the individuals upon whose statements the report was based. The trial court, by the order here reviewed, denied the petition and ordered Ms. Swaine not to communicate any information concerning her investigation in the cause. The court’s order among other things states:

“(3). This Court recognizes the authority cited by Mr. Harris in Kern v. Kern, 333 So.2d 17 (Fla.1976) and recognizes the need and duty of the Court to determine the credibility of the social'worker making the study and evaluate the findings of the report based upon this determination and does follow this decision.
“(4). During the pendency of this Dissolution of Marriage Child Custody Study by Velma Swaine, it was necessary for the child to be taken into protective custody under Chapter 39 of the Florida Statutes.
“(5). Chapter 39.12 of the Florida Statutes provides that all information obtained by an employee of the Division of Children and Youth Services Intake of the Department of Health and Rehabilitative Services should be privileged; the information so obtained under the Chapter 39 investigation cannot be separated from the information obtained in the Dissolution of Marriage Child Custody Study.
“(6). It would not be in the best interest of the witnesses and confidential sources to have their names revealed in a deposition by Ms. Velma Swaine.
(7). To order Ms. Velma Swaine to testify at the deposition concerning her sources would severely handicap and limit her ability to obtain information necessary to carry out her work as an officer of the Division of Children and Youth Services Intake of the Department of Health and Rehabilitative Services under Chapter 39 of the Florida Statutes and thereby deprive the Court in the future of needed information and the children of adequate protection.”

Chapter 39.12, Florida Statutes, is not applicable to this proceeding because this report was sought under and filed in a dissolution of marriage proceeding pursuant to § 61.20, Florida Statutes. Nothing in that statute requires the report to be confidential and if the wife is denied the right to depose Ms. Swaine and the other unnamed social workers who made the investigation and the other unnamed individuals who furnished information in the investigation, the wife will be denied due process in the determination to be made on the child custody issue.

In jKern v. Kern, 333 So.2d 17 (Fla.1976), the Supreme Court ruled that § 61.20, Florida Statutes, is constitutional. In so holding, it stated:

“. . . Implicit in Section 61.20„Flori-da Statutes, of course, is a procedural due process requirement that when the trial court relies on such investigative reports, counsel for the parties should be given an opportunity to review the reports for purposes of introducing any evidence that might rebut the conclusions or recommendations which the reports contained. In the instant case, nothing prevented Mrs. Kern from calling as witnesses the case workers who prepared the reports as well as the persons whom they interviewed nor from attempting to discredit the methods used to reach conclusions adverse to her cause. . . . ” (emphasis supplied)

The court then indicated that even if the witnesses interviewed by the case workers should be unavailable at trial, their presence would not be necessary to make the report admissible. In Kern, the issue was admissibility of the report while here the issue is whether or not the wife will be allowed to depose the caseworker who prepared the report and determine the identity of the assisting caseworkers and the persons who furnished information to them. In our view, the wife is entitled to have this information in order to attempt to refute the damaging anonymous information contained in the report. The Supreme Court is apparently of the same view as shown by the above quote from its opinion in Kern. The trial court’s order departs from the essential requirements of law and we find the issue of sufficient importance for us to take jurisdiction by common law certiorari at this stage of the proceedings.

Certiorari is granted, and the trial court’s order of March 30, 1978, is quashed with directions to enter an order directing Velma P. Swaine to submit to the wife’s discovery deposition and to answer the wife’s questions concerning her report.

MELVIN and BOOTH, JJ., concur.


author: HOBSON, Judge.

text:
    Wayne Charles SCHERGEN, Appellant, v. STATE of Florida, Appellee.
    No. 76-1066.
    District Court of Appeal of Florida, Second District.
    June 1, 1979.

      . Ronald E. Fox and J. Richard Rahter, St. Petersburg, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Richard G. Pippinger, Asst. Atty. Gen., Tampa, for appellee.
   HOBSON, Judge.

Appellant, Wayne Charles Schergen, appeals from his conviction of thirty-one counts of possession of obscene materials with intent to distribute in violation of Section 847.011, Florida Statutes (1975). The counts may be classified as follows: 25 counts based on possession of various obscene motion picture films, one count based on possession of a motion picture film entitled “Knights of the Night — The Sling,” and five counts of possession of obscene magazines. We affirm the convictions based on five counts of possession of obscene magazines and one count of possession of a motion picture film entitled “Knights of the Night — The Sling.” We reverse the portion of the conviction based on 25 counts of possession of various obscene motion picture films.

Appellant was arrested on January 14, 1976 in a warehouse known as Gulfcoast News Agency, Inc. in Pinellas Park, Florida. Police officers had entered the warehouse pursuant to a valid search warrant which, authorized a search of the premises to locate a film entitled “Knights of the Night — The Sling.” The details of the contents of the film were specified in the warrant and the supporting affidavit.

The police officers were accompanied by several assistant state attorneys and were joined at the site by The Honorable Maynard F. Swanson, County Judge. Upon entering the warehouse, the search party set up film projectors which they had brought with them and began to search for the film specified in the warrant. In the process of looking for “Knights of the Night,” the officers screened some 243 reels of movie film. In addition, 325 magazines were discovered. As each reel was viewed, the officer filled in the blank portion of pre-printed affidavits with a description of what they had viewed. The officers then presented the completed affidavit as well as the reel of film described therein to Judge Swanson who viewed the film and issued a search warrant for it. The same procedure was followed for the seizure of the magazines.

Eleven copies of the film described in the original warrant were seized. All copies were in boxes labeled with the title “Knights of the Night.”

Appellee justifies the seizure of films and magazines not described in the original warrant on the theory that the officers were in a place where they had a legal right to be and the additional items were in plain view. We agree with this argument as it pertains to the seizure of the magazines but cannot agree that reels of film which must be unboxed and placed on a projector in order to be seen are in plain view. Police officers testified that the films had to be screened because their content could not be determined from the box labels. This is unlike other cases of this kind which this court has affirmed. In those cases the police officers’ testimony or affidavit showed that they had on numerous prior occasions investigated obscene films and that the obscene picture on the film box always appeared in the film itself. If the objectionable contents of these films were truly in plain view, it would not have been necessary to remove them from their boxes and place them in a projector for viewing. The First District Court of Appeal held in Purcell v. State, 325 So.2d 83 (Fla. 1st DCA 1976), that, with the exception of evidence of a crime or contraband which comes into plain view, those executing a search warrant are confined to objects specified in the warrant. Our position is compatible with that of our sister court.

We have no difficulty in accepting the procedures employed to gain entry into the warehouse and are disinclined to question the motives which prompted them. A state attorney and an officer involved in the search testified that the only purpose of the search was to seize copies of one particular film. The film projectors, pre-printed forms and the presence of a county judge were necessary in the event other contraband should come into plain view during search.

Pursuant to the United States Supreme Court mandate in Heller v. New York, 413 U.S. 483, 93 S.Ct. 2789, 37 L.Ed.2d 745 (1973), we subject the seizure of large quantities of books and films to a strict scrutiny. The actions of the state in seizing and projecting unspecified films constitutes an unreasonable search and the fruits of that search may not be used against appellant.

The convictions on the five counts of possession of obscene magazines and one count based on possession of the obscene motion picture film entitled “Knights of the Night — The Sling” are affirmed. The convictions on the remaining 25 counts based on possession of various obscene motion picture films are reversed, as the trial court should have suppressed the evidence in support of these 25 counts.

The judgment of guilt and sentence for the crime of possession of obscene material with intent to distribute or sell is hereby affirmed.

GRIMES, C. J., and DANAHY, J., concur.

      . The affidavits and warrants were pre-printed with a description of the premises to be searched, defendant’s name and the judge’s name. A blank space was provided for a description of the item to be seized.


author: HOBSON, Acting Chief Judge.

text:
    Paul JOHNSON and Pauline Johnson, Appellants, v. ROYAL GARDEN ESTATES, INC., Appellee.
    No. 78-2092.
    District Court of Appeal of Florida, Second District.
    June 1, 1979.

      Herbert S. Blessing, III, Bradenton, for appellants.
    L. Floyd Price, Bradenton, for appellee.
   HOBSON, Acting Chief Judge.

Paul and Pauline Johnson appeal the dismissal with prejudice of their action seeking declaratory judgment. We reverse.

The Johnsons are assignees of a long-term lease on a mobile home park lot. An eight-foot wide mobile home was located on the lot when the Johnsons took possession and was included in the assignment of the lease.

Appellee Royal Garden Estates, Inc. owns and operates the mobile home park. Sometime after the Johnsons moved into the park, appellee imposed a rule requiring the removal from the park of eight-foot wide mobile homes after sale.

The rule was enacted pursuant to a master lease recorded in the county records and applying to each of the tenants in the park. The provision of the master lease which purportedly gives appellee the right to impose the rule provides:

C. That the Management shall have the complete and absolute authority, to the exclusion of any other provision contained hereinafter in this Indenture of Lease, by rules and regulations to restrict and regulate the following:
3. The size, width and length, type or model, make or year of make, of any mobile home or trailer, structure or cabana to be placed on said sites.

The Johnsons had a contract to sell their interest in their lot and mobile home, but they realized that the presence of the rule requiring the removal of all eight-foot wide mobile homes after sale would on its face require any buyer to remove the mobile home. Therefore, the Johnsons instituted the instant action seeking an injunction and a declaratory judgment determining the validity of the rule. They alleged that they were in doubt as to their rights under the rule, especially in view of Florida Statute 83.765 (1977) which provides:

No mobile home park shall make or enforce any rule which shall deny or abridge the right of any resident of such mobile home park or any owner of a mobile home located in such park to sell said mobile home within the park or which shall require the resident or owner to remove the mobile home from the park solely on the basis of the sale thereof.

Upon appellee’s motion, the court dismissed the complaint without prejudice to amend.

The complaint was amended and again dismissed, this time with prejudice, apparently on the basis that it did not state a cause of action for declaratory judgment. We find that the complaint does state a cause of action. Section 86.011, Florida Statutes (1977), grants broad jurisdiction to the circuit court to render declaratory judgments as to rights, status or other legal relations and as to the facts upon which a privilege or right may exist. Section 86.021 provides for a declaration of rights under an instrument in writing. The master lease and rules promulgated pursuant thereto are certainly instruments in writing and the relief sought by the Johnsons’ complaint clearly falls squarely within the ambit of the aforementioned statutes.

Accordingly, the order appealed from is reversed and the case is remanded for further proceedings consistent with this opinion.

BOARDMAN and DANAHY, JJ., concur.


text:
    John P. WALSH, Jr., Appellant, v. FLORIDA DEPARTMENT OF LABOR AND EMPLOYMENT SECURITY, Division of Employment Security and Leon County Board of County Commissioners, Appellees.
    No. LL-103.
    District Court of Appeal of Florida, First District.
    June 5, 1979.
    John P. Walsh, in pro. per. for appellant.
    Alex D. Littlefield, Jr., Tallahassee, for Florida Dept, of Labor and Employment Sec.; and F. E. Steinmeyer, III, and O. Earl Black, Jr., Tallahassee, for Leon County, appellees.
   PER CURIAM.

Appellant urges on appeal that the denial of unemployment compensation benefits was error. We agree and reverse.

The record shows that appellant was employed by Leon County as a coordination specialist for a program funded under the Comprehensive Employment and Training Act (CETA) from December 23, 1976, to September 30, 1977. His employment was excluded from unemployment compensation coverage until June 30, 1977; however, Chapter 77-262, Laws of Florida, amended section 443.03(5)(b), Florida Statutes, effective July 1, 1977, to provide coverage for local government employees who worked from January 1, 1973 to January 1, 1978, as long as their service was not excluded from the definition of “employment” by the Federal Unemployment Tax Act or by section 443.03(5)(d). The relevant portion of section 443.03(5)(d) excludes service performed:

“As part of an unemployment work-relief or work-training program assisted or financed in whole or in part by any federal agency or an agency of a state or political subdivision thereof, by an individual receiving such work relief or work training, except that this subparagraph does not apply to unemployment work-relief or work-training programs for which unemployment compensation coverage is required under federal law, rule, or regulation.”

The appeals referee determined that appellant’s employment by Leon County was excluded from coverage because CETA was a “work relief project.” The definition cited above does not exclude all those working with a “work relief project,” but only those who are receiving work relief or work training. There is no evidence in the record that appellant was receiving work relief or work training, but only evidence that he was assisting with the administration of the CETA program. He was, therefore, not excluded from the definition of “employment.”

Accordingly, the decision of the Board of Review of the Department of Commerce is vacated and the cause is remanded.

MILLS, Acting C. J., and ROBERT P. SMITH, Jr. and LARRY G. SMITH, JJ., concur.


text:
    John B. CANTISANO, as sole surviving Trustee of Coral Park Investments, Inc. (formerly known as Cantisano Enterprises, Inc.) and Kleer-Vu Corporation, voluntarily dissolved Florida Corporations, Appellants, v. Francisco SOLER, as sole surviving Trustee of Quality Painting Company, Inc., an involuntarily dissolved Florida Corporation, and Individually, Appellee.
    No. 78-74.
    District Court of Appeal of Florida, Third District.
    June 5, 1979.
    Fowler, White, Burnett, Hurley, Banick & Knight and George B. Foss, Jr., Miami, for appellants.
    Malcolm H. Friedman, Coral Gables, for appellee.
    Before HENDRY and KEHOE, JJ., and SCHULZ, GEORGE E. (Ret.), Associate Judge.
   PER CURIAM.

Affirmed. See: Boux v. East Hillsborough Apartments, Inc., 218 So.2d 202 (Fla. 2d DCA 1969); Croft v. Edwards, 353 So.2d 669 (Fla. 1st DCA 1978).


text:
    Donald W. BOEHME, Appellant, v. Norma Irene Lewis BOEHME, Appellee.
    No. 78-2135.
    District Court of Appeal of Florida, Third District.
    June 5, 1979.
    duFresne & duFresne, Miami, for appellant.
    Robert M. Leen and Joseph L. Schneider, Hollywood, for appellee.
    Before PEARSON, KEHOE and SCHWARTZ, JJ.
   PER CURIAM.

Affirmed. Herzog v. Herzog, 346 So.2d 56 (Fla.1977); Shaw v. Shaw, 334 So.2d 13 (Fla.1976); see Brook v. Brook, 289 So.2d 766 (Fla.3d DCA 1974), cert. denied, 300 So.2d 895 (Fla.1974).


text:
    DOME CONDOMINIUM ASSOCIATION, INC., Appellant, v. Gerald GOLDENBERG, etc., et al., Appellees.
    No. 78-2190.
    District Court of Appeal of Florida, Third District.
    June 5, 1979.
    Becker, Poliakoff & Streitfeld, Ft. Laud-erdale, for appellant.
    Steel, Hector & Davis and Darrey A. Davis, Miami, for appellees.
    Before HENDRY, HUBBART and SCHWARTZ, JJ.
   PER CURIAM.

This is an appeal from (a) an order dismissing the appellant’s complaint as to counts I, II, III, and V, (b) certain orders relating to the disbursal of funds in the court registry, and (c) orders denying the appellant’s motion to continue and strike. We find no merit in the appellant’s attack on the order of dismissal insofar as it dismisses count III of the complaint, or the orders relating to the disbursement of funds in the court registry, or on the orders denying the motions to continue and to strike. Such orders are affirmed.

There is merit, however, in the appellant’s attack on the order of dismissal insofar as it dismisses counts I, II and V of the complaint. Such order is reversed as to those counts only and the cause remanded to the trial court for further proceedings based on the authority of Century Village, Inc. v. Wellington, E, F, K, L, H, J, M & G, Condominium Assn., 361 So.2d 128, 132-133 (Fla.1978); Burleigh House Condominium Assn. v. Buchwald, 368 So.2d 1316 (Fla.3d DCA 1979); Kaufman v. Shere, 347 So.2d 627 (Fla.3d DCA 1977), cert. den. 355 So.2d 517 (Fla.1978).

Affirmed in part; reversed in part.


text:
    Florence KUBA, as Personal Representative of the Estate of Joseph Kuba, Petitioner, v. PARKWAY GENERAL HOSPITAL, INC., a Florida Corporation, Respondent.
    No. 79-375.
    District Court of Appeal of Florida, Third District.
    June 5, 1979.

      Cohen & Kokus and Linda Koenigsberg, Miami, for petitioner.
    Preddy, Kutner & Hardy and Michael J. Parenti, III, Miami, for respondent.
    Before HENDRY, HUBBART and KE-HOE, JJ.
   PER CURIAM.

Petitioner, claimant below, seeks review by petition for certiorari of a renotice order of a final hearing which scheduled another medical mediation hearing to be held on April 27,1979 which is a date not within six months from the date the claim was filed.

Upon review of the record, we have concluded that the Judicial Referee departed from the essential requirements of law because the jurisdiction of the Medical Mediation Panel had terminated prior to such order. Diggett v. Conkling, 368 So.2d 74 (Fla.4th DCA 1979); Hewitt v. Caffee, 368 So.2d 1342 (Fla.3d DCA 1979); Grossman v. Duncan, 371 So.2d 142 (Fla. 1st DCA 1979).

For the reason stated certiorari is granted and the order under review is quashed.

It is so ordered.


text:
    ADVANCE WALLCOVERINGS, INC., a Florida Corporation, Appellant, v. DAVID AND DASH, INC., a Florida Corporation, Appellee.
    No. 79-382.
    District Court of Appeal of Florida, Third District.
    June 5, 1979.
    Mark S. London, Hollywood, for appel-„ Iant.
    Milton E. Grusmark and Robert Kalter, Miami, for appellee.
    Before PEARSON, KEHOE and SCHWARTZ, JJ.
   PER CURIAM.

Affirmed. Farish v. Lum’s, Inc., 267 So.2d 325 (Fla.1972); North Shore Hospital, Inc. v. Barber, 143 So.2d 849 (Fla.1962).


author:
PER CURIAM.
      SCHWARTZ, Judge

text:
    Edilver Antonio MENESES, Appellant, v. The STATE of Florida, Appellee.
    No. 79-742.
    District Court of Appeal of Florida, Third District.
    June 5, 1979.
    Edilver Antonio Meneses, in pro per.
    Jim Smith, Atty. Gen., for appellee.
    Before HAVERFIELD, C. J., and PEARSON and SCHWARTZ, 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.

Affirmed.

SCHWARTZ, Judge

(dissenting in part).

Of the six grounds raised by the defendant in his Rule 3.850 motion, five lack any semblance of merit. In “Ground Five,” however, Meneses asserts the right to relief because he was sentenced to a term of five years probation with the special condition that he serve 4V2 years in the state prison. The motion states:

“The Court’s adjudication of the defendant required that he serve 4V2 years MORE on his sentence, without any credit for the time spent in the Dade County Jail as a prerequisite for the one year probation, nor did the Court credit him with any and all time awaiting in jail prior to sentencing in 1976 and 1977. Moreover, the defendant has been informed that he is NOT eligible to receive any gain time or extra gain time allowed other prisoners as the Florida Department of Corrections construed the commitment to mean that he was to serve 4}A years without any dimunition of his sentence and the Florida Parole Commission has informed the defendant that it cannot grant him a parole as it was a condition of the sentence that he serve 4V2 years in prison before his release. A person sentenced to a 5 years commitment serves 3 years, 6 months and 9 days, minus any extra gain time for good behavior, excellent work, etc.”

In Shead v. State, 367 So.2d 264, 267-268 (Fla.3d DCA 1979), this court said, albeit in dictum, that

. the 9V2 year prison term imposed as a condition of probation is equally questionable. Its sole purpose, as stated by the trial court, was to punish the defendant by denying her any hope of parole. Although a short jail or prison sentence may be imposed as a condition of probation if reasonably related to a rehabilitative purpose, State v. Jones, 327 So.2d 18 (Fla.1976), it is doubtful whether a lengthy prison term, as here, can stand as a probationary condition when its primary, if not exclusive purpose is to punish the defendant. See Kominsky v. State, 330 So.2d 800 (Fla.1st DCA 1976). Moreover, it is further doubtful whether a trial court by this device can divest the Parole Board of its exclusive authority to parole a defendant on a prison sentence. In sum, it is our view that the sentence imposed in this case was illegal even if the habitual criminal statute had been applicable.” [emphasis supplied]

Since Fla.R.Crim.P. 3.850 provides for relief on the ground “. . that the sentence was imposed in violation of the Constitution or Laws ... of the State of Florida, . ”, I would reverse the order below and remand for an evidentiary hearing on this ground alone. Fla.R.App.P. 9.140(g).


author: MELVIN, Judge.

text:
    LOCAL UNION # 2135, INTERNATIONAL ASSOCIATION OF FIREFIGHTERS, Appellant, v. CITY OF OCALA, Appellee.
    No. KK-137.
    District Court of Appeal of Florida, First District.
    June 6, 1979.

      Gene Hal Johnson and Rodney W. Smith, of Smith & Johnson, Gainesville, for appellant.
    Seymour H. Rowland, Jr., Ocala, Robert J. Bekken and H. Victor Hansen, of Fisher & Phillips, Atlanta, Ga., for appellee.
   MELVIN, Judge.

The appellant, Local Union # 2135, International Association of Firefighters, has perfected its appeal from an order entered by the Circuit Court of Marion County, Florida, that denied its application for an order to compel arbitration of unresolved issues pending between the City of Ocala and said Union, said arbitration of issues to be conducted under the Arbitration Statute of the State of Florida.

The City of Ocala and the Union entered into a collective bargaining agreement effective October 1, 1976, to continue in full force and effect through September 30, 1977. Such agreement contained the following provisions:

“. . It [the agreement] shall be renewed automatically from year to year thereafter, unless either party shall have notified the other in writing at least one hundred twenty (120) days prior to the anniversary date that such party desires to modify the Agreement. This notice will contain the section or sections the requesting party wished to modify or add. All other sections will remain in effect. In the event that such notices are given, negotiations shall begin no later than one hundred ten (110) days prior to the anniversary date. At the end of thirty (30) days of negotiation, any unresolved issues shall be submitted to arbitration in accordance with State Law.” (Emphasis added)

The City and the Union were not in agreement as to the matters to be included in the renewal contract. On August 25, 1977, the City took the position that the parties were in a deadlock in negotiations because, so the City contended, the Union had refused to discuss with the City its proposals. The City concluded and charged that the Union thus had bargained in bad faith.

On October 15, 1977, the President of the Union communicated with the Public Employees Relations Commission and in such communication declared that the parties were at impasse and requested the Commission to appoint a special master. Section 447.403, Florida Statutes (1977). Pursuant to such request and the statute referred to, the Commission appointed a special master. The special master did not meet with the parties, however, because the proceedings were stayed pending resolution of the City’s unfair labor practice charge. Thereafter, the Union filed in the Circuit Court of Marion County its application for appointment of an arbitrator and application for an order compelling arbitration. These applications were filed pursuant to Chapter 682, Florida Statutes (1977). On January 11, 1978, the Union filed its motion with the Public Employees Relations Commission to stay the special master’s proceedings pending the resolution of its application for appointment of an arbitrator by the Circuit Court. On January 24, 1978, the Public Employees Relations Commission entered its order denying the Union’s motion. Thereafter, the City filed in the Circuit Court its motion to dismiss the Union’s application for appointment of an arbitrator and application for an order compelling arbitration. This motion by the City was granted on May 11, 1978.

We here note that the court is at grips with a union-city disagreement relating to a governmental as distinguished from propriety function.

In its order dismissing the petition with prejudice, the court made several adjudications, but it will only be necessary that this court deal with one, such being dispositive of the issue before this court. The trial court held that jurisdiction in this matter had been preempted by the Public Employees Relations Commission Act, the Union by its President having activated the provisions of such act by declaring an impasse and requesting the Commission to appoint a special master.

It was the legislative intent by the enactment of Chapter 447, Florida Statutes (1977), to provide the method of resolving labor disputes between public employers and public employees, with the Public Employees Relations Commission having preemptive jurisdiction as to such matters. We find that the disputes existing between the City and the Union are “arguably” covered by the provisions of Chapter 447, Florida Statutes (1977). See Maxwell v. School Board of Broward County, 330 So.2d 177 (Fla. 4th DCA 1976). Jurisdiction over the disputes between the Union and the City having been preempted in favor of the Public Employees Relations Commission, such Commission has jurisdiction of the disputes pursuant to the provisions of such chapter.

The order dismissing the petition of the Union with prejudice is AFFIRMED.

McCORD, C. J., and BOOTH, J., concur.


text:
    Shirley HARDIN, as the Personal Representative of the Estate of Tiny N. Wilkinson, Appellant, v. Archibald WILKINSON and Gwendolyn J. Wilkinson, his wife, Appellees.
    Nos. KK-190, KK-192.
    District Court of Appeal of Florida, First District.
    June 6, 1979.

      Thomas W. Davis, of Barton & Cox, Gainesville, for appellant.
    Michelle Vaughns, of Goldin & Cates, Gainesville, for appellees.
   MELVIN, Judge.

Appellant brings for review the post judgment order dated July 28, 1978, wherein the trial court, without jurisdiction so to do, attempted to amend the provisions of a final judgment entered in this cause on June 11,1975. The final judgment required that Archibald Wilkinson and Gwendolyn J. Wilkinson pay to Tiny N. Wilkinson the sum of $2,400 plus interest and costs as therein set forth within 90 days from the entry of such final judgment, and that upon failure to make such payment Archibald and Gwendolyn J. Wilkinson were ordered and directed to execute a good and sufficient warranty deed conveying the subject property to Tiny N. Wilkinson free of encumbrances. Such final judgment then provided for adjustment between Tiny N. Wilkinson and Archibald and Gwendolyn J. Wilkinson of items relating to taxes and costs for improvements. No appeal was taken from such final judgment.

The requirement that said such sum of money be paid within 90 days was not complied with. Therefore, Tiny N. Wilkinson was under the terms of such final judgment entitled to have the property conveyed to her by warranty deed. No such conveyance was made. No delay in the offering of the required compensation is chargeable to Tiny N. Wilkinson or her personal representative, Shirley Hardin. No delay with reference to the execution and delivery of the warranty deed is chargeable to Tiny N. Wilkinson, or to her personal representative Shirley Hardin.

It does not appear from this record that there occurred any matter that would be recognized as mistake, inadvertence, or excusable neglect that would permit Archibald and Gwendolyn J. Wilkinson to seek refuge in the provisions of Fla.R.Civ.P. 1.540(b).

This record reflects that following the 90th day after the entry of the final judgment referred to there were filed several motions for and orders entered granting further extensions of time for payment. The paregoric therapeutic effect thereof lingered until the entry of the “final judgment in favor of defendants” dated July 28, 1978, purporting to extend again for some 36 hours the time within which Archibald and Gwendolyn J. Wilkinson could make payment of said sum of money to Shirley Hardin, as the personal representative of the estate of Tiny N. Wilkinson.

The rules of procedure are so designed that litigation, even though it may proceed with lead-footed pace, shall come to an end and the rights of parties be finally adjudicated.

We hold that upon the entry of the final judgment on June 11, 1975, and the passing of time within which either party may have in due season exercised their privilege of appellate review, all judicial labor with reference to this subject matter came to an end except the enforcement of such final judgment. It follows that the “final judgment in favor of the defendants” entered July 28, 1978, being a purported judgment amending the terms and provisions of the original final judgment was beyond the jurisdiction of the court to enter.

The judgment appealed from is reversed and set aside. The trial court is directed forthwith to enter its order requiring compliance with its final judgment dated June 11, 1975. Reversed with directions to proceed in accordance with this opinion.

McCORD, C. J., and BOOTH, J., concur.


text:
    In the Matter of Michael J. BUSH, as Commissioner of the Herkimer County Department of Social Services, State of New York, on behalf of Deborah Austin, Appellant.
    No. LL-265.
    District Court of Appeal of Florida, First District.
    June 6, 1979.
    Lew A. Merry day, Jr., Dept, of Health and Rehabilitative Services of the State of Florida, Palatka, for Michael J. Bush, as Commissioner of the Herkimer County Department of Social Services, State of New York, on behalf of Deborah Austin, appellant.
   PER CURIAM.

This is an appeal from a final order of dismissal entered on the trial court’s own motion. We reverse.

Suit was filed in New York under the Uniform Reciprocal Enforcement of Support Law to require Kenneth Austin, allegedly a Florida resident, to pay child support for his two minor children who live in New York. After the petition and supporting documents were filed in the New York •court, that court sent those documents to the Department of Legal Affairs in Florida and the Department of Legal Affairs forwarded the documents to the Child Support Enforcement Section of the Department of Health and Rehabilitative Services, which filed the documents with the circuit court of Putnam County. The circuit court, on its own motion, entered a final order dismissing the case on the grounds that Section 88.181, Florida Statutes (1977), provides, “When the court of this state, acting as a responding state, receives from the court of an initiating state the aforesaid copies, it shall docket the cause . . . .” The trial court interpreted that section to require that the New York court send the documents directly to the Florida courts and dismissed the case because of the failure to comply with that provision. Jurisdiction was never obtained over Kenneth Austin and he is not a party to this appeal.

Though Section 88.181 does set forth procedures for when documents are received from the court of the initiating state, that provision must be read in conjunction with Section 88.141, Florida Statutes (1977), which sets forth a procedure other than one requiring the trial court in one state to send documents directly to the trial court in the other state. That section provides, in relevant part,

“If the name and address of [the receiving] court is unknown and the responding state has an information agency comparable to that established in the initiating state [the initiating state] shall cause such copies to be transmitted to the state information agency or other proper official of the responding state, with the request that it forward them to the proper court, and that the court of the responding state acknowledge their receipt to the court of the initiating state.”

The Florida Statutes specifically designates the Department of Legal Affairs as the “state information agency.” Section 88.171, Florida Statutes (1977).

Considering the various provisions of Chapter 88 as a whole, we hold that the procedure used for filing the case in the circuit court of Putnam County was authorized by statute and that the case should not have been dismissed. Accordingly, we REVERSE and order that the cause be reinstated.

MILLS, Acting C. J., and ROBERT P. SMITH and ERVIN, JJ., concur.


author: LARRY G. SMITH, Judge.

text:
    Wanda SHULER, Appellant, v. Michael Randall SHULER, Appellee.
    No. MM-121.
    District Court of Appeal of Florida, First District.
    June 6, 1979.
    Philip J. Knight, Blountstown, for appellant.
    No Appearance by appellee.
   LARRY G. SMITH, Judge.

Appellant appeals a final order modifying a final judgment of dissolution of marriage by awarding specific visitation rights to the paternal grandparents.

In this case the mother was awarded custody in a November 8,1976 final judgment. The father was awarded reasonable visitation, later modified by court order based on agreement between the parties, giving the father visitation rights on alternate weekends “under the direct supervision” of the husband’s parents. The paternal grandparents, Moses and Delores Shuler, filed a petition in the dissolution proceeding in October, 1978, which resulted in the modification order appealed from by the mother. This order awarded visitation to the grandparents ever fourth weekend, and eliminated one of the weekend visits previously granted to the father. In this latter proceeding the father was not served with notice of nor was he present at the hearing.

The sole issue for our consideration is. whether § 61.13, Fla.Stat., as amended by Ch. 78-5, Laws of Fla., which became effective April 25, 1978 authorizes grandparents of a minor child under the circumstances presented in this case to petition for modification of a final judgment so as to obtain an award of visitation privileges. We conclude that although the statute as amended authorizes the granting of visitation rights if it is deemed by the court to be in the child’s best interest, it does not authorize the grandparents to become parties to the litigation itself so as to obtain an order of modification granting such rights.

As amended, § 61.13(2)(b), Fla.Stat. (Supp.1978) provides as follows:

“(b) The court shall award custody and visitation rights of minor children of the parties as a part of proceeding for dissolution of marriage in accordance with the Uniform Child Custody Jurisdiction Act. Upon considering all relevant factors, the father of the child shall be given the same consideration as the mother in determining custody. The court may award the grandparents visitation rights of a minor children [sic] if it is deemed by the court to be in the child’s best interest. Nothing in this section shall be construed to require that grandparents be made parties or given notice of dissolution pleadings or proceedings, nor shall such grandparents have legal standing as ‘contestants’ as defined in s. 61.1306. No court shall order that a child be kept within the state or jurisdiction of the court solely for the purpose of permitting visitation by the grandparents.” (§ 61.-13(2)(b), Fla.Stat. (Supp.1978)) (Emphasis supplied)

§ 61.1306(1), Fla.Stat. (1977), defines “contestant” as follows:

“(1) ‘Contestant’ means a person, including a parent, who claims a right to custody or visitation rights with respect to a child.”

So far as we have been able to determine no appellate court in Florida has construed the new language of § 61.13(2)(b), Fla.Stat. (Supp.1978). It is obvious that the trial judge recognized the uncertainties in the law created by the amendments in question and attempted to reconcile the conflicting claims of the parties without the benefit of appellate decisions pointing the way to a resolution of the unusual problem presented in this case.

Prior case law establishes that under a variety of circumstances, entirely in the absence of statute, non-parents have been permitted to litigate in their own right the question of custody, for example, intervention in modification proceedings by a third person actually caring for the child at the time of the proceedings, Cone v. Cone, 62 So.2d 907 (Fla.1953); or a petition for modification filed by a person actually caring for the child of divorced parents, Grant v. Corbitt, 95 So.2d 25 (Fla.1957). The authority of the trial court to award custody to grandparents or other third parties has been recognized, but this power has been severely circumscribed so as to be limited primarily to cases in which either or both parents are unfit to rear the child, as in Behn v. Timmons, 345 So.2d 388 (Fla. 1st DCA 1977). See also 10A Fla.Jur. Dissolution of Marriage, etc., §§ 94, 340.

However, prior to the amendment of Section 61.13 the trial court could not grant visitation rights to a non-parent of a child whose custody had been awarded to a fit parent. Tamargo v. Tamargo, 348 So.2d 1163 (Fla. 2nd DCA 1977); Sheehy v. Sheehy, 325 So.2d 12 (Fla. 2nd DCA 1975); Rodriguez v. Rodriguez, 295 So.2d 328 (Fla. 3rd DCA 1974). See 10A Fla.Jur. Dissolution of Marriage, etc., § 95. The amendments to § 61.13 abrogated this rule established by case law, but the amending act (Ch. 78-5) expressly stated grandparents did not thereby become “parties” to dissolution proceedings, and declared further that they had no “legal standing” as “contestants” under the Uniform Child Custody Jurisdiction Act. By declaring (in Ch. 77-433) that “custody and visitation” are to be determined “in accordance with the best interests of the child and in accordance with the Uniform Child Custody Jurisdiction Act”, all provisions of that act became applicable to custody and visitation proceedings. Therefore, the definition of “contestant” must of necessity apply to custody and visitation proceedings generally, and grandparents have no legal standing in such proceedings.

While we may fully appreciate the laudable objectives sought to be accomplished by granting visitation privileges to the grandparents in a given case, our interpretation of the statute is such that the grandparents have no legal standing to maintain actions or proceedings for the purpose of obtaining an order granting, visitation privileges. Our decision is not based on the wisdom or lack of wisdom behind this legislative enactment. But it would not be unreasonable to foresee that a contrary ruling on this point could easily result in divorced parents of minor children being literally deluged with petitions and hearings without end, adding a new dimension of consternation and agony to a type of litigation that is already over-burdened with almost insoluble problems.

The grandparents had no standing to maintain this proceeding, and the order appealed from must be and is hereby reversed.

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

      . The words “and in accordance with the Uniform Child Custody Jurisdiction Act” were added to § 61.13(2)(b) by Ch. 77-433, Laws of Fla., as a part of the enactment of the uniform act (see Ch. 77-433, § 26).

      . § 61.1306(1), Fla.Stat. (1977) was enacted as part of the “Uniform Child Custody Jurisdiction Act” in Ch. 77-433, Laws of Fla.


author: ROBERT P. SMITH, Judge.

text:
    ST. VINCENT’S MEDICAL CENTER, Relator, v. Honorable Thomas D. OAKLEY, Respondent.
    No. 00-80.
    District Court of Appeal of Florida, First District.
    June 6, 1979.
    Noah H. Jenerette, Jr., of Boyd, Jener-ette, Leemis & Staas, P.A., Jacksonville, for relator.
    No appearance requested of respondent.
   ROBERT P. SMITH, Judge.

By this petition the Hospital seeks to prohibit the circuit court from exercising jurisdiction of plaintiff’s complaint which was not previously considered by a medical liability mediation panel pursuant to Section 768.44, Florida Statutes (1977). The question is whether plaintiff’s claim is for “malpractice” as that term is used in Section 768.44(l)(a):

Any person . . . claiming damages by reason of injury, death, or monetary loss on account of alleged malpractice by any . . . hospital . . . shall submit such claim to an appropriate medical liability mediation panel before that claim may be filed in any court of this state.

Allegations in plaintiff’s first count, incorporated by reference also in the second, characterize plaintiff’s claim as one of false imprisonment, in that, when plaintiff appeared for “a voluntary psychiatric evaluation,” Hospital agents • forcibly detained plaintiff against his will for ten days. The second count, repeating those allegations, adds that the Hospital assaulted plaintiff by “injection of harmful drugs and medicines without any reasonable or probable cause as well as [by] other physical contact.”

On its face the claim is not for medical malpractice arising from a legitimate doctor/hospital/patient relationship but is rather, as the circuit court held, for an entirely different species of intentional tort: false imprisonment and its sequelae. Plaintiff is entitled to plead his claim as he. wishes, thereby assuming the duty to prove that the medical treatment of which he complains in count two, ordinarily actionable only as malpractice when negligently performed within a consensual or otherwise defensible relationship of doctor/hospital/patient, was in fact an assault during a false imprisonment. See Jackson v. Biscayne Medical Center, Inc., 347 So.2d 721 (Fla.3d DCA 1977).

The petition for writ of prohibition is DENIED.

McCORD, C. J., and ERVIN, J:, concur.


text:
    Deborah Mary OLMSTEAD, Appellant, v. Edward C. OLMSTEAD, Appellee.
    No. 77-1867.
    District Court of Appeal of Florida, Second District.
    June 6, 1979.
    Seymour A. Gordon of Gay & Gordon, St. Petersburg, for appellant.
    Wayne 0. Smith of Wallace & Smith, P. A., St. Petersburg, for appellee.
   PER CURIAM.

By order of March 16, 1979, this court relinquished jurisdiction to the trial court for any clarification it might deem necessary in its Final Judgment of Dissolution. Pursuant thereto the trial court has now entered and transmitted to this court its Revision of Final Judgment. As so revised the Final Judgment is affirmed.

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