author: PEARSON, Judge. KEHOE, Judge,

text:
    Frank Hugh GEORGE, Appellant, v. Kathryn Irene GEORGE, Appellee.
    No. 77-1435.
    District Court of Appeal of Florida, Third District.
    June 27, 1978.
    Rehearing Denied July 31, 1978.

      Silver S. Squarcia, Miami, for appellant.
    Philip A. Holtsberg, Coconut Grove, and Alan M. Sandler, Miami, fdr appellee.
    Before PEARSON, HENDRY and KE-HOE, JJ.
   PEARSON, Judge.

This is an appeal by the former husband from a final judgment dissolving marriage. The points presented claim error in the financial provisions of the judgment. -Although the husband has presented twenty-six points on appeal, we think that the issues presented may be adequately decided under four headings: (1) Were there prejudicial, procedural errors in the trial court proceedings that deprived the husband of a fair trial of the issues involved? (2) Does the record support the trial judge’s finding of the wife’s need for permanent alimony in the amount allowed by the trial judge? (3) Does the record support the trial judge’s finding that the parties’ adopted son is entitled to support after his eighteenth birthday as a dependent? (4) Was an allowance of attorney’s fees supported by the record?

The parties are both over sixty years of age, and are both employed as teachers in the Dade County system. At the time this matter was in the trial court, the husband had a yearly salary of approximately $18,-475.00 and the wife approximately $17,-433.00. Their adopted son has a debilitating muscular disorder and has grave personality maladjustments.

Our examination of the record shows no prejudicial error in the conduct of the trial or the entry of the final judgment. The cause was bitterly contested on the issues presented here and the appellant husband was afforded a full opportunity to be heard and present evidence on each issue.

With regard to the amount of permanent alimony, in our view, the amount of $165.00 a month to the wife is not supported by the record. We recognize the limitation imposed upon our review of allowances made in dissolution of marriage cases by the opinions of the Supreme Court in Herzog v. Herzog, 346 So.2d 56 (Fla.1977); and Shaw v. Shaw, 334 So.2d 13 (Fla.1976). In the instant case, we are dealing not with a claimed abuse of discretion but rather with a finding of a present need for permanent alimony. The trial judge found, as follows:

“8. HEALTH OF THE PETITIONER. The petitioner/wife is in a state of poor physical health, due to the fact that she suffers from rheumatoid arthritis. In addition, the petitioner suffers from high-blood pressure, has' a hiatal hernia, and also has colitis. Her poor physical health has caused her to have a loss of present income, as a result of absence from her employment, which loss will not diminish in the foreseeable future.
“9. FINANCIAL MATTERS:
“(a) Petitioner/wife is employed as a school teacher and earns an average monthly net salary of $871.28. The petitioner wife has present expenses per month of $1,212.19.
“(b) Respondent/husband is employed as a school teacher. His gross annual salary is approximately $18,000.00 and he has the ability to provide the wife and child with the sums that they need.
“(c) The parties own jointly their marital domicile located at 5201 S.W. 87th Avenue, Miami, Florida. There is a mortgage outstanding against this property, which amortizes at the monthly rate of approximately $288.00.
“(d) Respondent/Husband, owns in his individual name a home located at 6840 South Waterway Drive, Miami, Florida. There is a mortgage outstanding against his property which amortizes at a monthly rate of approximately $190.00.
“(e) The parties own three automobiles. A 1972 Dodge Colt, a 1965 Dodge Dart, and a 1966 Ford.
“(f) Respondent/Husband owns individually certain personal property, including a boat, trailer, motor, and miscellaneous fishing equipment and tools, and in addition, furnishings at the home which is titled in his name individually.
“(g) The parties have a joint stock account at [Merrill] Lynch, Pierce, Fen-ner and Smith, which contains securities with a market value of approximately $10,000.00.
“(h) Respondent/husband has securities at other brokerage houses all of which are titled in his name alone.
“(i) The parties have miscellaneous savings and checking accounts, located at various financial institutions.”

Based upon this finding, the trial judge awarded permanent alimony of $165.00 per month and awarded to the wife use of the jointly owned marital residence so long as the minor child shall remain a dependent. While the latter provision is properly considered under the issue of dependency, it is mentioned here as having a bearing on the need for permanent alimony. The wife lists needs for more money than her salary as a school teacher provides. The finding of the trial judge that her then salary has been depressed by her poor health is not supported by the fact that she continued to earn the salary stated. It is, of course, apparent that her poor health may cause the loss of earning capacity in the future.

An allotment of permanent alimony to the wife must be based upon her present needs. It has long been the policy of the courts of this state to base awards of permanent alimony on the needs of the wife and commensurate ability of the husband to pay for those needs. See, for example, Knox v. Knox, 159 Fla. 123, 31 So.2d 159, 160 (1947). The liberal provision for modification by Section 61.14, Florida Statutes (1975), contemplates that the actual present need should be the basis for an award of permanent alimony. The record does not show the present need for alimony in the amount allowed. Cf. the principles of law in Armour v. Armour, 59 So.2d 51 (Fla.1951).

The record does support the finding of the present dependency of the minor child. It also shows a probability that the dependency will exist for some time in the future. The husband’s objection that the court should have waited until the child had attained his eighteenth birthday before making the finding of dependency is without substance. The husband states that the child was seventeen and one-half years old at the time of the judgment. If there has been a change in circumstances since this case was tried, the facts can be presented to the trial court upon petition for modification. See Finn v. Finn, 312 So.2d 726 (Fla.1975). We hold that no error has been shown on the finding of dependency, the allowance of monetary support or the award of the use of the marital residence to the wife so long as the dependency shall exist.

The last issue concerns the allowance of an attorney’s fee to the wife. We find no abuse of discretion in the allowance. Cf. Kleinschmidt v. Kleinschmidt, 66 So.2d 815 (Fla.1953); and Ginsberg v. Ginsberg, 127 So.2d 137 (Fla.3d DCA 1961).

The final judgment is affirmed except for the allowance of permanent alimony, which is reversed. The cause is remanded for the entry of an amended final judgment eliminating the provision for permanent alimony and substituting therefor a provision reserving jurisdiction in the trial court to award permanent alimony if the anticipated reduction of the earning capacity of the wife shall occur in the future.

Affirmed in part, reversed in part, and remanded.

KEHOE, Judge,

dissenting.

Based upon my review of the record and the principles of law set forth in Herzog v. Herzog, 346 So.2d 56 (Fla.1977) and Shaw v. Shaw, 334 So.2d 13 (Fla.1976), I must respectfully disagree with the majority opinion. In my opinion, the award of permanent alimony by the trial court in this case was supported by competent substantial evidence; therefore, I would affirm.

      . “6. PROPERTY:

      “(a) MARITAL DOMICILE: Title to the marital domicile located at 5201 S.W. 87th Avenue, Miami, Florida is vested in the parties as tenants in common, subject however, to wife’s exclusive usé and possession of same, until the child, GREGORY LYNN GEORGE, shall attain the age of 21 years, or shall no longer be deemed dependent, which ever shall later occur. Petitioner/wife is charged with maintaining the premises, including the duty to make all mortgage and tax payments on same. At the time that the home is sold, petitioner/wife shall receive a credit in the amount of 'A of all mortgage payments made on same, including principal and excluding interest. In addition, she shall receive a credit at the time of the sale for Vz of all other expenses for repairs and maintenance of the property. This Court finds that during the pendency of this action, the petitioner/wife has made one more mortgage payment on this property than the husband has. Therefore, the respondent/husband is hereby ordered to pay to the wife within 10 days from the date of the entry of this Order an amount equal to one half of the monthly mortgage payment on the property, to wit: $144.00.”


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    Wayne Earl SMITH and David Teague, Petitioners, v. The Honorable Theron A. YAWN, Jr., Circuit Judge in and for the Eighth Judicial Circuit in and for Union County, Florida, Respondent.
    No. JJ-350.
    District Court of Appeal of Florida, First District.
    June 30, 1978.
    Rehearing Denied Aug. 9, 1978.
    William B. Salmon and June Rice, Asst. Public Defenders, Gainesville, for petitioners.
    Robert L. Shevin, Atty. Gen., and Raymond L. Marky, Asst. Atty. Gen., Tallahassee, for respondent.
   PER CURIAM.

The petition for writ of prohibition, having been considered on the merits, is DENIED.

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


text:
    In re ESTATE of Myrtle R. LEE, Deceased. Henrietta CAREY, Appellant, v. Robert J. LEE, Appellee.
    No. 77-1706.
    District Court of Appeal of Florida, Third District.
    July 5, 1978.
    Rehearing Denied July 31, 1978.
    Michael A. Lipsky, Miami Beach, for appellant.
    Brumer, Moss, Cohen & Rodgers and Kenneth R. Duboff, Miami, for appellee.
    Before HAVERFIELD, C. J., and BARK-DULL and NATHAN, JJ.
   PER CURIAM.

Petitioner, Henrietta Carey, appeals an order dismissing with prejudice her petition for removal of personal representative.

Myrtle R. Lee died on November 29, 1976 and her husband, Robert J. Lee (respondent-appellee), as surviving spouse was appointed administrator of the estate upon filing a proper petition therefor. On March 21, 1977 Henrietta Carey, the deceased’s aunt, filed the instant petition requesting that Robert Lee be removed as personal representative because his marriage to the deceased was invalid in that he had been married on four occasions prior to marrying the deceased and did not legally divorce two of his past four wives. At the conclusion of petitioner’s case the court granted Robert Lee’s motion to dismiss and this appeal ensued.

One of the strongest presumptions of the law exists in favor of the validity of the last marriage. Teel v. Nolen Brown Motors, 93 So.2d 874 (Fla.1957). The party attacking the legality of last marriage has the heavy burden of rebutting the presumption that such marriage is valid and all public records available should be exhausted in an effort to establish the fact of the absence of a divorce. See Teel, supra; King v. Keller, 117 So.2d 726 (Fla.1960); Jablonski v. Caputo, 297 So.2d 310 (Fla.2d DCA 1974).

After a review of the record, it is clear that petitioner-appellant failed to sustain her burden and in fact presented no documentary evidence nor proof of utilizing available public records.

Affirmed.


author: BOOTH, Judge.

text:
    HOME INDEMNITY COMPANY et al., Appellants, v. Eddie EDWARDS, Sr., etc., Appellees.
    No. EE-55.
    District Court of Appeal of Florida, First District.
    July 10, 1978.
    Rehearing Denied Aug. 9, 1978.

      S. William Fuller, Jr., of Howell, Howell, Liles & Braddock, Jacksonville, for appellants.
    Robert C. Kent, James T. Terrell, John C. Taylor, Jr., Marion R. Shepard of Mathews, Osborne, Ehrlich, McNatt, Gobelman & Cobb, Jacksonville, for appellees.
   BOOTH, Judge.

This cause is before us on appeal from the order of the Circuit Court, Duval County, granting final summary judgment in favor of third party defendant, Houdaille Industries, Inc., as to Count I and II, and dismissing Count III for failure to state a cause of action.

The two questions presented are: First, whether a manufacturer of a product who is sued for breach of warranty by one injured by the product may bring a third party suit for indemnity against the employer of the injured party. Second, whether the third party complaint and the evidence before the court in this case are sufficient to withstand the employer’s motions for dismissal and summary judgment.

The first question has been answered in the affirmative by the Supreme Court in Sunspan Engineering and Construction Company v. Spring-Lock Scaffolding Company, 310 So.2d 4 (Fla.1975); Trail Builders Supply Company v. Reagan, 235 So.2d 482 (Fla.1970) and Florida Gas Company v. Spaulding, 243 So.2d 129 (Fla.1970). The recent decision of the Supreme Court in Seaboard Coast Line Railroad Company v. Smith, 359 So.2d 427, Cases # 51,649 & # 51,650, Opinion filed March 30, 1978, restates the distinctions between contribution and indemnity and, as to the latter, holds that an active tortfeasor whose operation of a train caused the accident has no right to indemnification against an employer for damages paid to an injured employee even though the negligence of the employer was willful or wanton.

In this case, the employer argues that a manufacturer is, by definition, guilty of active negligence, a contention which would preclude actions for indemnity by any manufacturer. We find that contention untenable since the Sunspan Engineering and Trail Builders cases, supra, both involve manufacturers and in both the third party complaints for indemnity against employers were allowed. In Sunspan Engineering, the employee was injured on the job when a platform board fell from a scaffolding tower which was manufactured by the third party plaintiff, Spring-Lock Scaffolding Company. The employees sued the manufacturer and the manufacturer filed a third party complaint against the employer. The Supreme Court, expressly limiting its consideration to the negligence count of the complaint, stated that the cause of action existed against the third party defendant. In the Trail Builders Supply Company case, the employee was injured when he was drawn into a truss roll press being operated without an appropriate safety device. He instituted suit against the manufacturer alleging negligence in the construction of the machine. The manufacturer’s third party complaint against the employer for indemnity alleged that the employer had ignored safety regulations by making certain safety devices ineffective and had thus caused the employee’s injury. The Supreme Court ruled that the allegedly negligent manufacturer could sue the employer for indemnity, stating that “justice, fair play and what’s right” demand that an actively negligent employer be called on to indemnify a passive third party tortfeasor. (235 So.2d at 485)

This brings us to the second of the two questions presented here, which is the sufficiency of the complaint, and the evidence of record before the court, to withstand the employer’s motions for dismissal and summary judgment. In the instant case, the evidence before the court on motion for summary judgment establishes that the employer, Houdaille, manufactures reinforced concrete beams using steel wire cable manufactured by the third party plaintiff, Florida Wire and Cable Company. During the manufacture of the beams by the employer, the steel cable is stretched through a large mold into which concrete is poured. The cables are placed under tension using hydraulic jacks and mechanical devices known as “strand chucks”, metal barrels which enclose “keepers” with metal teeth that bite into and hold the wire cable during the tensioning process. The plaintiff/employee was killed while attempting to free a strand chuck that had been used to hold tension on the cable. There was evidence that additional tension, more than that specified for the strand in question, was applied in order to free the chuck, and either the jack or the strand snapped forward, striking the employee and causing fatal injuries. Material questions of fact exist as to the cause of the accident.

The complaint in the main action alleges breach of implied warranty in the manufacture of the wire cable which snapped. Breach of warranty is a species of liability which may, or may not, involve actual fault or active negligence on the part of the manufacturer. 28 Florida Jurisprudence, Sales § 157 and cases cited therein.

The third party complaint, Count I, alleges that the employer was actively negligent and specifically, inter alia, that the employer in its conduct of the detensioning process which caused the wire to break, improperly inserted the strand chuck in the jack and improperly installed the jack to the strand, resulting in misalignment of the jack. Evidence before the court on motion for summary judgment was that stress was applied which exceeded the warranty limits of the cable in question. The amendment to the third party complaint, Count III, alleged that the employer knew that the procedures being used for tensioning and detensioning the wire were improper and dangerous because of the number of mishaps that had occurred on the very morning of the accident in question.

The pleadings and depositions before the court, taken in the light most favorable to the non-moving party, create a material issue of fact as to whether the employer was guilty of negligence in the form of misuse of the product manufactured by the third party plaintiff which was the cause of the accident.

In the Seaboard Coast Line Railroad Company v. Smith case, supra, the Supreme Court stated the test for indemnity as:

“Indemnity—or the right to assert it—is founded on express or implied contract, upon the breach of some duty owed the party seeking indemnity by the underwriter or upon the character of the conduct as between the two . . .”

In the instant case, the allegations of the third party complaint are such as to entitle the manufacturer of the product to indemnity against the party who has, through active misuse of that product, caused injuries to a party and thereby subjected the manufacturer to suit resulting in (1) possible damages to the injured party and (2) cost of defending the main action. Pender v. Skillcraft, 358 So.2d 45, Opinion filed April 10, 1978 (Fla. 4th DCA). The third party suit for indemnity for damages, if any, and costs eliminates the need for a subsequent separate action in the event the jury resolves the disputed issues of fact in a way favorable to the manufacturer.

In Florida Power Company v. Taylor, 332 So.2d 687 (2nd DCA 1976), the court held that summary judgment was improperly granted against the third party plaintiff, the power company, in its suit for indemnity against the employer of the workman killed by contact with the power company’s line. The complaint in the main action in that ease alleged that the power company was negligent in maintaining uninsulated power lines so close to the ground and, having actual or constructive knowledge of construction activities in the area, was negligent in failing to warn the employee of the danger of bringing objects into contact with those wires.

The third party complaint alleged that the employer was actively negligent in elevating the road under the power line. The court found that material issues of fact existed as to the passive/active nature of the power company’s negligence, if any, which precluded summary judgment, on the third party complaint, stating in part:

“We are not necessarily holding that the allegations of Paragraph 5, quoted above, are sufficient to hold Florida Power Company liable to the plaintiff under the circumstances of this case. Rather, we hold only that some allegations in the complaint give rise to inferences that Florida Power’s negligence, if any, could have been passive only. In any event, this possibility has not been conclusively eliminated by the proof submitted to the trial judge. Therefore, it was improper to grant summary judgment against Florida Power on its third party complaint . . . ”

It is settled that a third party plaintiff seeking indemnity is not bound by the characterization of its negligence by the plaintiff in the main suit, but is entitled to allege, and to prove, that its negligence, if any, was passive or secondary. Central Truck Lines, Inc. v. White Motor Corporation, 316 So.2d 579 (3d DCA 1975); Seaboard Coast Line Railroad v. Brown, 297 So.2d 843 (2nd DCA 1974); Bodin Apparel v. Superior Steam Service, 328 So.2d 533 (3d DCA 1976); INA v. King, 340 So.2d 1175 (4th DCA 1976). In the INA v. King, case, the court, in an opinion by Judge Alderman, stated:

“. . . We conclude that it is an in-demnitee’s actual wrongdoing or lack of it, rather than allegations of wrongdoing, .which determine the indemnitee’s rights. A plaintiff should not be able to arbitrarily deprive a defendant of his right to indemnification from a third party by alleging that he was actively negligent when in fact that defendant is found not to have been actively negligent.”

The allegations of the main complaint in this case do not, as appellee contends, preclude the third party suit for indemnity. Manufacturers of allegedly defective products were held to be entitled to claim indemnity in the Supreme Court decisions in Sunspan and Trail Builders, supra. The intent and purpose of third party practice is to allow disposition of such interrelated claims in one action thereby avoiding multiplicity of suit. In this case, material issues of fact admittedly exist in the main suit regarding the manner in which the accident occurred. Summary judgment should not be granted on the third party suit for indemnity unless no version of the facts could support the indemnity claimed. This is the rule governing the granting of summary judgment on complaints, and it applies equally to third party complaints. Florida Power v. Taylor, supra.

Accordingly, the judgment below is REVERSED and the cause REMANDED for further proceedings consistent herewith.

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

      . Appellant does not contest the summary judgment entered as to Count II seeking contribution.


author: ERVIN, Judge.

text:
    Edwin G. FRASER, Ralph Sands, George H. Weiss, Clifford C. Allen, W. T. Mann, Sr., Thomas G. Raulerson, Joseph E. Jones, J. P. Hall, Jr., Joseph C. Gill, R. R. Thomas, John E. Mathews, Jr., and Newton A. Colee, as organizers of a proposed Security Bank of Macclenny, Petitioners, v. Gerald A. LEWIS, as Comptroller, State of Florida, Division of Banking, Department of Banking and Finance, Respondent.
    No. GG-329.
    District Court of Appeal of Florida, First District.
    July 10, 1978.
    Rehearing Denied Aug. 9, 1978.
    John E. Mathews, Jr. and Julie H. Kuntz of Mathews, Osborne, Ehrlich, McNatt, Go-belman & Cobb, Jacksonville, for petitioners.
    Ryland Terry Rigsby and Franklin J. Wollett, Tallahassee, for respondent.
   ERVIN, Judge.

Disappointed applicants for a bank charter petition for review. Conditional approval for their application was given by Comptroller Dickinson in October, 1974. In January, 1975, this conditional approval was revoked by Dickinson’s successor, respondent Lewis, who found local conditions did not ensure reasonable promise of successful operation for the proposed bank and for the bank already established in the community. Petitioners then requested and were given a Section 120.57(1) evidentiary hearing. The hearing examiner entered findings of fact and conclusions of law recommending that the charter be issued. The Department, while generally accepting the recommended findings of fact, differed with the officer’s conclusions and denied the application.

The proposed bank site is Macclenny in Baker County. The only existing bank in the county is the Citizens Bank of Maeclen-ny, which in 1975 opened a new, modern banking facility. That bank has been conservative in making loans and has apparently caused a substantial number of Baker County residents to go outside the county to meet their banking needs. There was testimony at the hearing that a ratio of 60% of total deposits involved in loans is desirable. The existing bank’s ratio was 37-40%. The existing bank has made a profit every year since its opening in 1924. Total deposits in 1976 were $14,096,000, an increase from 1975 of $373,000. The existing bank’s rate of return on its total assets was 1.38% for 1974, decreasing to .42% as of June 30,1976. Witnesses for the Department of Banking and Finance testified the existing bank was not producing adequate income for its total capitalization and this was due primarily to the basic overall economic factors.

The population of Baker County was estimated at between 14,000 and 16,000 people. The Northeast Florida State Hospital is the largest employer, in the county, with about 1,000 full-time employees and a 1976 payroll of over $9,000,000. The Baker County unemployment rate through 1975 was just over 3%. The county economy shows a “normal, healthy growth pattern.” The new Baker County federal credit union has experienced phenomenal growth and in 1976 had about $1,300,000 outstanding in loans. Its general manager opined the county was in need of a second commercial bank and that the credit union could support the existing bank as well as the proposed bank.

It is undisputed that the petitioners satisfy four of the six statutory criteria set by Section 659.03(2), which provides:

(2) The department shall approve or disapprove the application, in its discretion, but it shall not approve such application until, in its opinion:
(a) Public convenience and advantage will be promoted by the establishment of the proposed bank or trust company.
(b) Local conditions assure reasonable promise of successful operation for the proposed bank or the principal office of the proposed trust company and those banks or trust companies already established in the community.
(c) The proposed capital structure is adequate.
(d) The proposed officers and directors have sufficient banking or trust experience, ability and standing to assure reasonable promise of successful operation.
(e) The name of the proposed bank or trust company is not so similar as to cause confusion with the name of an existing bank.
(f) Provision has been made for suitable banking house quarters in the area specified in the application.

There was no evidence challenging the banking experience, ability or standing of the proposed officers and directors. Nor was the name of the proposed bank found to be confusing. No evidence was introduced tending to show the proposed bank’s facilities would not be suitable. Petitioners pledged $700,000 as capital. At the hearing, a Department witness testified a minimum capitalization of $1,000,000 is generally necessary for proposed banks. This was the first knowledge petitioners had of such a capitalization requirement. The hearing officer determined that only criterion (b) was in dispute. In his opinion, the normal, healthy growth pattern for the economy of Baker County assured a reasonable promise of successful operation of the proposed bank as well as the bank already established. He concluded the six requirements were met by petitioners and the Department thereby had authority to grant the application, conditioned upon petitioners’ furnishing capitalization of $1,000,000.

Once again we are confronted, as we were in McDonald v. Dept. of Banking and Finance, 346 So.2d 569 (Fla. 1st DCA 1977), with the difficult task of reconciling conflicting conclusions in the orders of the hearing officer and the reviewing agency. McDonald reminds us that the substantiality of evidence supporting the agency’s substituted findings of fact depends upon a number of variables: 1. How far the factual issue tends to be one of opinion. 2. How completely agency policy occupies a field otherwise open to different opinion. 3. How far the ultimate facts are matters of opinion. If those opinions are infused by policy considerations for which the agency has special responsibility, the reviewing court will give less weight to the hearing officer’s findings in determining the sub-stantiality of evidence supporting the agency’s substituted findings. McDonald v. Dept. of Banking and Finance, supra, at 579.

Our review of agency orders is limited by the provisions of Section 120.68, Florida Statutes (1977). Among those provisions we are required to “deal separately with disputed issues of agency procedure, interpretations of law, determinations of fact, or policy within the agency’s exercise of delegated discretion.” Section 120.68(7). We are also forbidden to substitute our judgment “for that of the agency on an issue of discretion.” Section 120.68(12)(c). We are also instructed by McDonald that we should “allow the agency full statutory range for its putative expertise and specialized experience.” Id. at 583. The Department’s discretion in granting or denying applications for bank charters is of course not unbridled. Its discretion is conditioned upon the criteria provided by Section 659.03(2). Cf. National Bank of Tampa v. Green, 175 So.2d 545 (Fla. 1st DCA 1965); Bay National Bank and Trust Co. v. Dickinson, 229 So.2d 302 (Fla. 1st DCA 1969). It is also subject to the procedure afforded substantially interested parties by Section 120.57 of the Administrative Procedure Act.

All the criteria provided by the statute must be met by the applicant, otherwise the application will be denied. The only criterion in substantial dispute is 659.03(2)(b), requiring the applicants to present proof that “[Ijocal conditions assure reasonable promise of successful operation for the proposed bank . . . .” In determining whether that test has been met, we stated in McDonald that such resolution “is less one of fact than of opinion which is highly charged with policy considerations for which the Department is responsible, [and] the hearing officer’s discarded findings of fact have comparatively little weight in our determination whether substantial competent evidence supports the Department’s substituted findings.” McDonald at 584. Nevertheless, even when policy considerations are involved, and the agency has displaced the hearing officer’s recommended conclusions because of such considerations, it is the agency’s duty, mandated by Section 120.57, to explicate its policy and address countervailing arguments developed in the record as well as those urged by the hearing officer’s recommended order. McDonald at 583. To this end it is our responsibility to determine whether the agency sufficiently explicated its policy reasons supporting the decision to deny petitioner’s application for a bank charter.

The Department filed a detailed 12 page order extensively setting forth its reasons why the application should be denied. The primary reasons center on the following factors:

1. Growth. From June, 1975 to June, 1976, deposits at the existing bank only increased $373,000. The county was experiencing a growth in population, large in percentage figures but relatively small in actual numbers. Commercial growth since 1973 accounted for new employment of only several hundred people. Consequently it was the Department’s opinion that the promise of attracting new deposits of sufficient numbers and amounts would be more difficult than in a larger urban area. Alternatively, it considered that if a new bank were chartered, the withdrawal of deposits and savings from existing commercial institutions in the locality might occur, an eventuality hardly conducive to the existing financial community’s continued stability, required by the criterion in Section 659.03(2)(b).

2. Return. The existing bank’s return on total assets in June, 1976, was only .42%, whereas in December, 1974, the return was 1.38%. The Comptroller noted a 1% return on total investments generally is considered a desirable industry goal. This low return was no doubt attributable to the tight economy then in existence. However, even by the petitioners’ figures, the new bank would not operate at a profit until the third year. Losses would not be recouped for at least four years. Such a delayed recoupment schedule was not deemed promising.

We find the Department’s order sufficiently “exposed and elucidated its reasons” for the discretionary action taken. McDonald at 584.

Petition for review is DENIED.

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

      . While the Department found criterion (c), relating to adequate capitalization, had not been met, its counsel conceded during argument before this court that if this were the only deficiency in petitioners’ application, the Department would permit its amendment and, upon satisfactory proof that this condition had been observed, would no doubt issue the charter.


author: BARKDULL, Judge.

text:
    Thomas HENDRICKS, Appellants, v. The STATE of Florida, Appellee.
    No. 77-1475.
    District Court of Appeal of Florida, Third District.
    July 18, 1978.

      Bennett H. Brummer, Public Defender ■and Elliot H. Scherker, Asst. Public Defender, for appellants.
    Robert L. Shevin, Atty. Gen. and Steven R. Jacob, Asst. Atty. Gen., for appellee.
    Before BARKDULL and NATHAN, JJ., and CHARLES CARROLL (Ret.), Associate Judge.
   BARKDULL, Judge.

Thomas Hendricks appeals a final judgment of conviction and sentence, entered upon a jury verdict finding him guilty of involuntary sexual battery with force not likely to cause physical injury, false imprisonment, unlawful possession of a firearm while engaged in a criminal. offense, and carrying a concealed weapon.

Hendricks, a paraplegic, met Cantor (the victim) in the lounge where she is a nude dancer. At her request, he arranged to drive her home, as she usually drove home with customers. On the drive to her house, Hendricks made a wrong turn and drove to a deserted area. According to Cantor, Hendricks shocked her with a Taser gun, handcuffed her hands and feet and, without her consent, forced her to perform oral sex upon him. According to Hendricks, the various acts took place, but not only was it with Cantor’s consent but it was upon an agreed price of eighty dollars.

Cantor and Hendricks were on the ground outside the automobile when two officers with the Florida Game and Fresh Water Commission drove past. Cantor was nude and Hendricks was nude from the waist down. The two officers approached the car, when they observed it contained no occupants and, after asking for identification, Cantor said: “Officer, help, officer” to the officer requesting identification. One officer removed Cantor to the police car, and the other officer held Hendricks at bay with a shotgun after ordering him to “freeze”. One officer obtained the keys from Hendricks and his fellow officer in an effort to obtain the keys to unlock the handcuffs binding Cantor’s hands and legs.

After Cantor was uncuffed, she informed Officer Zell that Hendricks had a gun and a knife in the car. In' conducting searches for these weapons, the officer seized two firearms and a knife from Hendricks’ automobile. Subsequent discussion with Hendricks produced a third firearm. The car was subsequently towed to the processing garage of the Dade County Public Safety Department, where it was thoroughly searched, resulting in discovery of certain other weapons.

All of the aforementioned searches were conducted without a warrant. Hendricks’ motion to suppress the evidence produced by these searches and seizures was denied. The cause was tried by a jury, which found Hendricks guilty of involuntary sexual battery with force not likely to cause serious personal injury; false imprisonment; unlawful possession of a firearm while engaged in a criminal offense; and carrying a concealed firearm. Prior to sentencing, Hendricks moved to be certified for examination and hearing, pursuant to Section 917.14, Florida Statutes (1975), to determine whether he is a mentally disordered sex offender as defined by Section 917.13, Florida Statutes (1975). The trial court denied the motion and stated: “There will be an appointment of Dr. Boozer for this purpose, and also for the purpose of conferring with the officer conducting the presentence investigation.” Thereupon, the trial judge entered his order appointing Dr. Boozer to conduct an examination of Hendricks and to give her opinion, among others, as to “ * * * Whether the Defendant, Thomas Hendricks, is a mentally disordered sex offender within the meaning of Section 917.14 of the Florida Statutes and was at the time of the alleged offense; * * *

At time of sentence, the trial judge (notwithstanding Dr. Boozer’s evaluation of Hendricks, to wit: “ * * * He qualifies, under present Fla. Statutes, as a mentally disordered sex offender as per Chapter 917”) sentenced Hendricks as follows: As to count one fifteen (15) years in the state penitentiary; As to count two five years in the state penitentiary to begin at the expiration of sentence imposed in count one; As to count four, five years in the state penitentiary to run concurrent with the sentence imposed in count one; As to count three imposition of the sentence was withheld and Hendricks was placed on five years’ probation to begin at the expiration of the sentences imposed in counts one and two. A condition of that probation was successful completion of Dr. Boozer’s program as a mentally disordered sex offender.

Hendricks has raised five points on appeal, which we shall discuss in the order presented.

As to point one, he contends the trial court erred in denying his motion to suppress the physical evidence seized, where the evidence was the product of an unreasonable warrantless search. We find this point to be without merit. Under the facts of this case, the officers had probable cause to believe evidence of the - crime was concealed in the automobile and, therefore, the warrantless search was not unconstitutional. Olsen v. State, 338 So.2d 225 (Fla.3d DCA 1976); Carroll v. United States, 267 U.S. 132, 45 S.Ct. 280, 69 L.Ed. 543 (1925); Chambers v. Maroney, 399 U.S. 42, 90 S.Ct. 1975, 26 L.Ed.2d 419 (1970).

As to point two, Hendricks contends the trial court erred in restricting his cross-examination of the victim. The cross-examination restricted by the trial court sought to inquire into reluctance on the part of the victim to testify at the trial of this cause, which Hendricks contends was properly admissible as relating to the credibility of the witness, relying on Ward v. Ochoa, 284 So.2d 385 (Fla.1973); Kallas v. State, 284 So.2d 421 (Fla.3d DCA 1973); McDuffie v. State, 341 So.2d 840 (Fla.2d DCA 1977). We must reject this contention under the facts of the instant case. In the authorities relied upon there was a showing that the reluctance of the witnesses to testify were situations where it was apparent the witnesses’ testimony was affected by financial considerations. In the instant case there is no such showing. Even if we were to accept comments made by Hendricks’ counsel at a side-bar conference as true, which we cannot do as they were never placed in evidence [see: Millican v. Hunter, 73 So.2d 58 (Fla.1954); Hubbard v. Hubbard, 233 So.2d 150 (Fla.4th DCA 1970); Hill v. Douglass, 271 So.2d 1 (Fla.1972)], the most they could show would be a mere reluctance to testify which, without more, would have no bearing on the witness’ credibility. Therefore, the excluded evidence would not have been relevant to credibility and cross-examination of the witness was properly restricted.

By his third point, Hendricks alleges the trial court committed fundamental error in failing to instruct the jury that the offense of involuntary sexual battery requires proof of an intent to attain sexual arousal or gratification. In support of this contention, Hendricks relies on this court’s holding in State v. Alonso, 345 So.2d 740 (Fla.3d DCA 1977), alleging that by virtue of the holding therein intent is an essential element of the crime of sexual battery, which must be alleged and proved. Under the facts of this case, we must disagree with Hendricks’ interpretation of the effect of the holding in State v. Alonso, supra. To that end we shall revisit our holding in State v. Alonso, supra, in an attempt to clarify our holding therein for the benefit of the bench and bar.

At common law, the crime of rape was a crime malum in se and in crimes malum in se intent is presumed. Talley v. State, 160 Fla. 593, 36 So.2d 201 (1948). Subsequent to enactment of laws making rape a statutory offense, the Supreme Court (in dealing with the question) held that the law makes the act of rape a crime and infers a criminal intent from the fact itself. Thus, no specific intent is requisite other than that evidenced by the doing of the acts constituting the offense. Simmons v. State, 151 Fla. 778, 10 So.2d 436 (1942); Askew v. State, 118 So.2d 219 (FIa.1960). The Legislature enacted Chapter 72-724, Laws of Florida (1972), wherein it removed the gender connotation in the statute, making rape a crime of ravishing or carnally knowing a person. This led to the case of Washington v. State, 302 So.2d 401 (Fla.1974), dealing with the rape of a man, wherein the Supreme Court held that carnal knowledge was not limited to vaginal penetration but also included penetration of the anal or oral orifices. The present sexual battery law was enacted, wherein by definition it codified the previous case law and defined a sexual battery as meaning “ * * * oral, anal, or vaginal penetration by, or union with, the sexual organ of another[] * * ”. At this juncture, there was no essential difference between the sexual battery statute and the prior crime of rape, which we perceive to be the intent of the Legislature. The Legislature then proceeded to broaden the limited scope of included sexual conduct to include “ * * * anal or vaginal penetration of another by any other object;[] * * * It was this latter provision that we were dealing with in State v. Alonso, supra, wherein there was vaginal penetration by a medical instrument. Clearly, when an object other than the actor’s sexual organ is brought into union with the victim a question of intent to derive sexual gratification comes into play and becomes a necessary element of the crime. If this were not so, innocent conduct not intended by the Legislature to be included would be made criminal.

However, under facts such as those in the instant case (where the act involves the sexual organ of the actor) there can be no question that the act itself infers a criminal intent requiring no specific intent other than that evidenced by the doing of the acts constituting the offense, (Askew v. State, supra) and intent of the actor to attain sexual gratification is not an element of the crime which must be alleged and proved. Therefore, we find the third point raised herein to be without merit.

Hendricks’ fourth point alleges the trial court erred in basing the sentences imposed in this case in part upon the fact that he had not admitted his guilt nor displayed contrition, and upon its belief that he had committed perjury. This point is also without merit. Many factors go into the sentencing process; not the least of these is the gravity of the offense and the demeanor of the accused and his potential for rehabilitation. Davis v. State, 123 So.2d 703 (Fla.1960); State v. Boyer, 166 So.2d 694 (Fla.2d DCA 1964). As stated in Davis v. State, supra, at page 711: “Crime must be punished but it is the consideration of the individual that should determine the kind of treatment appropriate to his case. Responsibility should be the basis of punishment, and individualization the criterion of its application; such is the formula of modern penal law. * * * Hendricks’ counsel argued his reasons for mitigation of sentence and the trial judge responded thereto in kind, and we will not infer from that response an intent by the trial judge to increase Hendricks’ sentence. Those comments, taken in context with the statements of all parties at time of sentencing, in no way demonstrate the trial judge had any intent other than to sentence Hendricks as he did. Therefore, inasmuch as the sentences are within the limits proscribed by law, the propriety thereof will not be disturbed on appeal. Weathington v. State, 262 So.2d 724 (Fla.3d DCA 1972); Wilkinson v. State, 322 So.2d 620 (Fla.3d DCA 1975).

Hendricks’ fifth and final point alleges that the trial court erred in refusing to certify him as a mentally disordered sex offender, pursuant to Chapter 917, Florida Statutes (1975), where the record reflects probable cause to believe the defendant is a mentally disordered sex offender. Also that the court erred in refusing to appoint two psychiatrists to examine the defendant and in failing to hold an evidentiary hearing as required by Chapter 917, Florida Statutes (1975), and in ordering the defendant to serve a term of imprisonment prior to receiving treatment. We agree with Hendricks that the trial court abused its discretion in refusing to certify him for an examination and hearing pursuant to Section 917.14, Florida Statutes (1975).

Section 917.14(l)(b), Florida Statutes (1975) states the trial judge may certify a defendant for hearing and examination where there is probable cause to believe that the person is a mentally disordered sex offender. In the instant case, at the time Hendricks moved for certification, probable cause was at best questionable and the trial court’s discretion was probably not abused. However, at that time the trial court appointed Dr. Boozer to examine Hendricks and report back on the specific question of whether or not Hendricks qualified as a mentally disordered sex offender within the meaning of Chapter 917, Florida Statutes (1975). Dr. Boozer’s report stated Hendricks so qualified and, at that time, sufficient probable cause existed to necessitate a hearing and examination pursuant to Sections 917.14, 917.17, 917.18, Florida Statutes (1975). Hobbs v. Cochran, 143 So.2d 481 (Fla.1962); Dorman v. State, 279 So.2d 854 (Fla.1973). Therefore, we conclude there was probable cause to believe Hendricks was a mentally disordered sex offender within the meaning of Chapter 917, Florida Statutes (1975), and the trial court abused its discretion in failing to conduct a hearing thereon.

Therefore, the sentences imposed herein are hereby vacated and the cause is remanded to the trial court with directions to conduct a requisite hearing pursuant to Chapter 917, Florida Statutes (1977) to determine whether or not Hendricks is a mentally disordered sex offender. If he so qualifies, the trial court must commit him to the Department of Health and Rehabilitative Services for care, treatment, and rehabilitation pursuant to Section 917.19, Florida Statutes (1977). If Hendricks is not found to qualify as a mentally disordered sex offender, he may then be properly sentenced in accordance with the applicable laws. However, under no circumstances can treatment be required at the completion of the sentence. Gonsovowski v. State, 350 So.2d 19 (Fla.2d DCA 1977); Compare Hoshaw v. State, 359 So.2d 920 (Fla.3d DCA 1978), opinion filed June 20, 1978.

Accordingly, the convictions appealed herein are affirmed, but the sentences are vacated and the cause is remanded to the circuit court with directions.

      . David L. Gilbert, a crime investigator for the Dade County Public Safety Department, testified as to the disposition of the Taser gun in Hendricks’ vehicle as follows:

        * * * * * *
      “Q Did you, yourself, take out the Taser gun that was in the car?
      “A Yes, sir, I did.
      “Q Were you careful to notice how the Taser gun was hooked up to the car?
      “A Yes, sir, I was.
      “Q Would you explain to the jury on the diagram State’s Exhibit 19 how the Taser gun was hooked up in this particular car?
      “A The weapon itself was resting on the floorboard of the left front floor next to the driver’s seat. The wires from the one cassette that had been fired previously ran under a square floor mat which was laying on the left front floor to a position under neath the dash area. It ran across the carpeted section of the floor, over the transmission tunnel, behind the console containing miscellaneous radio equipment, to a position on the right front floor under a similar square floot mat on the right side, underneath the right seat, up through the rear carpeted section of the seat support for the right front seat.
      The wires then ran between the gap of the seat back and seat seat, if you will, on the right front seat and the end of the wires then were inserted into the slits which had been made in the vinyl car seat, embedded in the seat itself.”
      * * * * * *

      .Cantor testified as to being handcuffed as follows:
      * * * * * *
      “A He unhandcuffed the handcuffs behind my back and handcuffed my hands in front of me.
      “Q He now has handcuffed your hands in the front. What is the next thing that you remember happening?
      “A He took my feet out of the leather straps.
      * * * * * *
      “Q Then what happened?
      * * * * * *
      «A * * * alMj ^e next thing I know is I saw another pair of handcuffs and I said to him, ‘You don’t have to put the handcuffs on me. I’m not going to run away.
      “Q What, if anything, does he say?
      “A He said he wasn’t taking any chances.”

      . Wildlife Officer Alan Lee Zell, one of the officers who found Cantor at the scene, testified as follows:
      * * * * * *
      “Q What did you do next?
      “A I asked Officer Melvin for his handcuff key. He handed it to me.
      I took the ones off her wrists, placed them on the hood of the car and tried to get the ones off of the ankle.
      “Q Then what happened?
      “A The key that Officer Melvin had did not fit the handcuffs on the ankles, so I went back to the defendant and asked him where the keyes to the handcuffs were on the ankles.
      * * * * * *
      “Q What, if anything, did he say to you?
      “A He advised me he believed there were on the dash of the car.
      * * * * * *
      “Q What did you do after you got the keys off the dash?
      “A I went back to our patrol car and shined the keys in the spotlight, finding another handcuff key, went and undid the handcuffs that were on her ankles and placed those handcuffs and those keys on the hood of the car.”
      * * * * * *

      .
      “Q What, if anything did you do then?
      “A Reassured her and told her to go ahead and finish getting dressed and get in the car, and as she was getting in the car she stated, ‘He’s got a gun.’
      “Q What, if anything, did you do?
      “A I asked her — I said, ‘Where is it?’
      At that time she told me it was on the floorboard, driver’s side, next to the door between the door and the seat.
      “Q What, if anything, did you do after you received that information?

        “A I went to the car opening the door again, looking at the floorboard.
      Right next to the seat I found a PPK .9 millimeter gun.
      * * * * * *
      “Q What did you do when you observed the gun?
      “A I took the gun and placed it back on the hood of our car.
      * * * * * *
      “A As I was placing it on the hood of the car, Officer Melvin advised me that she stated, ‘He’s got a knife,’ and at that time I walked back around to the rear door of our car and asked her.
      I says, ‘You said he’s got a knife?’ And she said, ‘Yes.’
      I said, ‘Where is it?’
      “MR. DENARO: I object, hearsay.
      “THE COURT: Overruled.
      “A (Continuing) She advised me that it was stuck into the seat, the front seat, between the two seats.”
      * * * * * *

      . Section 794.011(1)(f), Florida Statutes (1975).

      . Section 794.011(1)(f), Florida Statutes (1975).

      . It is to be noted that the trial court did not have the benefits of these authorities when he conditioned the probation imposed on Count III on successful completion of Dr. Boozer’s program.


author: PEARSON, Judge.

text:
    Guillermo SOSTCHIN, Appellant, v. CONTINENTAL NATIONAL BANK and Walter Goodrich, Appellees.
    No. 77-1069.
    District Court of Appeal of Florida, Third District.
    July 18, 1978.
    Stone, Sostchin & Gonzalez and Gisela Cardonne-Dienstag, Miami, for appellant.
    Greenberg, Traurig, Hoffman, Lipoff, Quentel, Wright & Wolff and Marlene K. Silverman, Miami, for appellees.
    Before PEARSON, HUBBART and KE-HOE, JJ.
   PEARSON, Judge.

Guillermo Sostchin, one of the defendants in a suit to foreclose a mortgage on real property, known as the Cactus Motel, appeals a summary judgment foreclosing the mortgage and declaring the mortgage superior to any claim of Sostchin. The owners, individuals doing business as the Cactus Motel, have not appealed. Sostchin allegedly owns an option to purchase the motel. He was made a defendant because of his claimed interest in the property.

On March 13, 1975, for a consideration of $10,000.00, Sostchin entered into an option agreement to purchase the motel. The agreement on its face stated that the expiration date of the option was April 1, 1976. The agreement provided:

“The expiration date of this Option shall be April 1,1976, and Purchaser shall notify Seller in writing of his intention to exercise the Option, no later than March 1, 1976.”

On November 4, 1975, the owners executed a note and mortgage to appellee, Continental Bank. The Bank recognized the existence of the outstanding option by an addendum to an assignment of the seller’s rights under the option agreement to the Bank. The addendum was as follows:

“1. It is expressly understood and agreed that nothing contained on this document shall either reduce, enlarge, diminish or change any of the rights that Bill Sostchin, as Trustee, has under the option for Purchase Agreement referred to in this document.
“2. It is also agreed by Continental National Bank of Miami that upon payment of the loan outstanding and referred to in this document, it shall execute whatever documents are necessary so that Bill Sostchin, as Trustee, shall have good title to the property in the event Bill Sostchin, as Trustee, exercises the Option Agreement.”

On December 7, 1976, the Bank filed its amended complaint to foreclose the mortgage, which was in default. Appellant Sostchin was named a defendant upon an allegation that:

“10. Bill Sostchin, as Trustee, may claim some interest in the property by an option to purchase the property which was recorded in the Dade County Official Records Book on May 24, 1975. It is attached as exhibit 5.
“11. All right, title, and interest to the property claimed by Bill Sostchin, as Trustee, is inferior, subordinate, and junior to the mortgage of Continental National Bank of Miami.
“12. On November 4, 1975 all parties to this litigation executed an assignment agreement regarding the option to purchase (exhibit 5). The assignment agreement is attached as exhibit 6.”

Sostchin answered the complaint without an affirmative defense or a prayer for relief. He admitted the existence of the option and denied that his claim was inferior to that of the Bank. The Bank moved for a summary judgment against all defendants. As a ground for summary judgment against Sostchin, the Bank alleged that the “option to purchase agreement states on its face that it expired on April 1, 1976.”

Sostchin filed a counter-affidavit in opposition to the motion for summary judgment in which he alleged that he had “executed” the option agreement by a letter dated February 26, 1976. A copy of a letter was attached. The letter was to the escrow agent for the deposit of funds for the purchase of the motel. The letter stated that Sostchin “. . . intended] to exercise the option” and requested the delivery of a completed abstract. Thereupon, Sostchin also moved for summary judgment in his favor. He also filed a motion for leave to file a counterclaim against the owners for breach of the option agreement.

The trial judge struck Sostchin’s amended affidavit upon the motion of the plaintiff Bank, on the ground that it was untimely and that it set forth defenses not alleged in his answer. After a hearing, the court entered a summary judgment of foreclosure against all defendants and granted Sostchin’s motion to file a cross-claim against the owners.

We conclude that the trial court properly struck the amended affidavit of Sostchin on the ground that it was untimely. That left Sostchin’s first affidavit filed, which stated as a legal conclusion that he had exercised the option; was ready, able and willing to close, but that the owners refused to close. The Bank urges that no genuine issue of material fact was presented for this reason and because the affidavit sought to raise affirmative defenses not pleaded in the answer.

The only material issue between the Bank and Sostchin was made by the Bank’s allegation in its complaint that its mortgage was superior in right to any right of Sostchin. This allegation was denied by Sostchin’s answer. The Bank urges that it sufficiently discharged its requirement to prove the issue by the fact that the option agreement, which was attached to the complaint, expired prior to the filing of the complaint to foreclose. Sostchin urges that his allegation of a bona fide effort to purchase the property prior to the expiration date of the option agreement, creates a genuine issue.

We hold that a genuine issue of material fact is shown by the pleadings and the affidavits on file. The fact that the time for the exercise of the option to purchase had expired by the time of the foreclosure does not, of itself, show that the option was without legal effect. Cf. the considerations of law in Behrman v. Max, 102 Fla. 1094, 137 So. 120, 122 (1931).

In Hamilton v. Bank of Palm Beach & Trust Co., 348 So.2d 1190 (Fla. 4th DCA 1977), the court dealt with a similar situation and held that where the defendant filed an answer which put in issue the allegations of the complaint, an affirmative defense or counterclaim was not necessary. The burden of proof was upon the Bank, and the Bank did not present evidence that its claim was superior to that of the defendant as it alleged.

The summary judgment is reversed as to the defendant Sostchin. The cause is remanded for further proceedings in accordance with the views herein expressed.

Reversed and remanded.


text:
    Willie James COOK and Accredited Surety & Casualty Company, Inc., a Florida Corporation, Appellants, v. The STATE of Florida, for the Use and Benefit of DADE COUNTY, Appellee.
    No. 78-108.
    District Court of Appeal of Florida, Third District.
    July 18, 1978.
    Brian R. McComb, Miami, for appellants.
    Janet Reno, State’s Atty., and John P. Durant, Asst. State’s Atty., for- appellee.
    Before BARKDULL, NATHAN and HUBBART, JJ.
   PER CURIAM.

Affirmed. Florida Insurance Exchange v. State, 178 So.2d 211 (Fla. 1st DCA 1965).


text:
    Willie SHELBY, Appellant, v. The STATE of Florida, Appellee.
    No. 77-1881.
    District Court of Appeal of Florida, Third District.
    July 18, 1978.
    Bennett H. Brummer, Public Defender and Elliot H. Scherker, Asst. Public Defender, for appellant.
    Robert L. Shevin, Atty. Gen. and Steven L. Bolotin, Asst. Atty. Gen., for appellee.
    Before HENDRY, BARKDULL and HUBBART, JJ.
   PER CURIAM.

Affirmed. Compare J. M. D. v. State, 328 So.2d 521 (Fla. 3d DCA 1976); Spencer v. State, 332 So.2d 30 (Fla. 1st DCA 1976); State v. Robinson, 336 So.2d 437 (Fla. 2d DCA 1976).


text:
    Johnny WILLIAMS, Appellant, v. The STATE of Florida, Appellee.
    No. 78-1221.
    District Court of Appeal of Florida, Third District.
    July 18, 1978.
    Engel, Aronson, Fried & Cohn, for appellant.
    Robert L. Shevin, Atty. Gen., for appel-lee.
    Before PEARSON, HENDRY and KE-HOE, JJ.
   PER CURIAM.

Appellant, pursuant to Florida Rules of Appellate Procedure 9.140(g), having taken this appeal from the summary denial of his motion for post conviction relief under Florida Rules of Criminal Procedure 3.850, and this court having considered the record presented and having further determined that it conclusively appears therefrom that appellant is not entitled to relief, the denial of his motion is affirmed.

Affirmed.


text:
    The STATE of Florida, Appellant, v. George N. SUNE and Robert Delgado, Appellees.
    No. 77-1118.
    District Court of Appeal of Florida, Third District.
    July 18, 1978.
    Janet Reno, State’s Atty., and Paul M. Rashkind, Asst. State’s Atty., for appellant.
    John H. Lipinski, Miami, for appellees.
    Before HENDRY, NATHAN and KE-HOE, JJ.
   PER CURIAM.

The defendants, George N. Sune and Robert Delgado, were charged by information with bribery, unlawful compensation and conspiracy, all growing out of a single criminal episode.

The trial court sua sponte entered an order requiring the state to elect between the counts of bribery under Section 838.015, Florida Statutes (1977), and unlawful compensation under Section 838.016, Florida Statutes (1977). From this order the state appeals. We reverse.

A single criminal episode can be violative, of more than one criminal statute, and the defendants may be tried for and convicted of either or both counts. See State v. Peav ey, 326 So.2d 461 (Fla. 2d DCA 1976); Fayerweather v. State, 332 So.2d 21 (Fla.1976).

Reversed.


text:
    ARMOR ELEVATOR COMPANY, INC., a Foreign Corporation and Insurance Company of North America, a Foreign Corporation, Appellants, v. ELEVATOR SALES & SERVICE, INC., a Florida Corporation and Consolidated Mutual Insurance Company, a New York Corporation, Appellees.
    No. 77-1251.
    District Court of Appeal of Florida, Third District.
    July 18, 1978.
    Papy, DuVal, Poole & Usich, Coral Gables, and Robert J. Van Der Wall, Miami, for appellants.
    Horton, Perse & Ginsberg and Edward A. Perse, Brumer, Moss, Cohen & Rodgers, Miami, for appellees.
    Before PEARSON, HENDRY and KE-HOE, JJ.
   PER CURIAM.

The controlling question on this appeal is whether there is a right of contribution in favor of the third party tortfeasor against the workmen’s compensation employer where the third party is not under a common liability to the injured person and where the employer’s liability is limited by the provisions of the Workmen’s Compensation Act. See United Gas Pipeline Company v. Gulf Power Company, 334 So.2d 310 (Fla. 1st DCA 1976). We hold in accord with the cited case that there is no right of contribution.

Appellant third party tortfeasor seeks a holding that contribution should be allowed, relying upon Sunspan Engineering & Construction Company v. Spring-Lock Scaffolding Company, 310 So.2d 4 (Fla.1975); and Trail Builders Supply Company v. Reagan, 235 So.2d 482 (Fla.1970).

We think that this troublesome question has been laid to rest by the holding of the Supreme Court of Florida in Seaboard Coast Line Railroad Company v. Smith (West Robinson Fruit Co.), 359 So.2d 427 (Fla.1978), where the Supreme Court said:

“The key words of the contribution act are ‘common liability’ to the employee. Such ‘common liability’ cannot exist where the employer is immunized from liability by the Compensation Act for tort.” [Citing with approval the United Gas Pipeline Company case, cited above.]

See also Firestone Tire and Rubber Company v. Thompson Aircraft Tire Corporation, 353 So.2d 137 (Fla. 3d DCA 1977).

Affirmed.


text:
    Eugene COOPER, Appellant, v. The STATE of Florida, Appellee.
    No. 77-667.
    District Court of Appeal of Florida, Third District.
    July 18, 1978.
    Bennett H. Brummer, Public Defender and Beth C. Weitzner, Asst. Public Defender and Rory Stein, Legal Intern, for appellant.
    Robert L. Shevin, Atty. Gen., and Paul Mendelson, Asst. Atty. Gen., for appellee.
    Before HENDRY, NATHAN and KE-HOE, JJ.
   PER CURIAM.

Defendant Eugene Cooper was convicted of manslaughter, unlawful possession of a firearm while engaged in a criminal offense and carrying a concealed firearm.

Defendant appeals that part of the sentencing order which required that defendant not be eligible for parole for the mandatory minimum of three years. We agree and strike and delete that portion of the sentence since manslaughter is not one of the crimes set forth in Section 775.087(2), Florida Statutes (1977), prescribing a mandatory minimum sentence upon conviction for certain offenses when a firearm is used.

As to the defendant’s other points on appeal, namely, first that the trial court erred in declaring a state’s witness to be adverse, and second, that the trial court abused its discretion in permitting the co-prosecutor to testify for purposes of impeaching a state’s witness in violation of the witness sequestration rule, we affirm the decision of the trial court on the authority of Bryan v. State, 45 Fla. 8, 34 So. 243 (1903); Romano v. Palazzo, 83 Fla. 243, 91 So. 115 (1922); Jones v. State, 273 So.2d 8 (Fla. 3d DCA 1973).

Affirmed in part, reversed in part.


text:
    DADE COUNTY, Appellant, v. INVERSIONES RAFAMAR, S. A., a Panamanian Corporation, Appellee.
    No. 77-439.
    District Court of Appeal of Florida, Third District.
    July 18, 1978.

      Stuart L. Simon, County Atty., and St. Julien P. Rosemond, Sp. Asst. County Atty., for appellant.
    John G. Fletcher, South Miami, for appel-lee.
    Before PEARSON, HUBBART and KE-HOE, JJ.
   PEARSON, Judge.

Dade County, the respondent in the trial court to a petition for certiorari, appeals a final judgment which rezoned appellee’s property upon appellee’s petition to review a denial of the rezoning by the County Commission. We reverse upon a holding that the zoning of appellee’s property is a legislative matter and that the circuit court was without authority to change that zoning upon a petition for certiorari to review the action of the County Commission other than upon a record showing that the Commission had clearly departed from the essential requirements of law as they applied to appellee’s property. We further hold that the attempted rezoning of appellee’s property was a fairly debatable matter and that reversal is required by the holdings of City of Miami Beach v. Silver, 67 So.2d 646 (Fla.1953); and Neubauer v. Town of Surfside, 181 So.2d 707 (Fla. 3d DCA 1966). Cf. Bessemer Properties, Inc. v. Miami Shores Village, 110 So.2d 87 (Fla. 3d DCA 1959).

The appellee, Inversiones Rafamar, S.A., a Panamanian corporation, filed an application with the Building and Zoning Department making the request to change the zoning of 2.52 acres on the south side of Coral Way and S.W. 130th Avenue. The request for change was stated to be one for “district boundary change.” Petitioner sought to change the existing zoning of EU-1, which permitted one unit per acre, to EU-M, which is “estate use modified” and allows 2.3 units per acre. The Building and Zoning Department director recommended the denial of the change because the EU-M zoning would be detrimental and out of character with the area and would constitute spot zoning. He further pointed out that approval would mean piecemeal change and spot zoning in the area. The Planning Department director recommended denial upon the ground that the district boundary change is premature, stating that to the date of the hearing, development has been confined to the north side of Coral Way with Coral Way being defined as a line of demarcation.

The matter came on before the County Commission and petitioner presented no evidence before the Commission other than argument of counsel. There was strong objection from neighbors who have developed their property as one acre estates to the south of petitioner’s property. A review of the record shows that the entire strip on the south side of Coral Way (which is S.W. 26th Street) from S.W. 128th Avenue to S.W. 132nd Avenue is zoned EU-1 for one acre estates. The north side of Coral Way immediately across from appellant’s property is zoned RU-1, agricultural interim zoning, but is occupied by a school. Some property to the north of Coral Way and east of petitioners property has been platted as single family residence lots of lesser dimensions than one acre. This property, however, is separated from Coral Way by a wall. All of the property immediately south of petitioner’s property is zoned AU agricultural, but is actually platted and used as one acre estates. The appellee points out that the Dade County Master Plan calls for zoning on the subject tract and surrounding properties including the one acre estates to the south of up to five homes per acre. It is argued that the zoning requests calling for 2.3 single family homes per acre would be substantially in compliance with the Dade County Master Plan. We think this is true as far as the Master Plan goes except that it must be recognized that the plan, by calling for use of from one to five homes per acre, leaves discretion to the County Commission as to whether development in the area substantiates one unit per acre or a greater density. Appellee further argues that under the decision in Davis v. Sails, 318 So.2d 214 (Fla. 1st DCA 1975), the decision of the trial court to rezone the property should be upheld upon the substantial relationship rule which, as stated by that court, is: “In order for a zoning ordinance or regulation to be valid, it must have some substantial relationship to the promotion of the public health, safety, morals or general welfare.” While we recognize the validity of this rule, it should be pointed out that when the legislative authority determines the proper zoning for an area, it is presumed to have a substantial relationship to public welfare because zoning is a legislative matter. The burden is upon the person wishing to change the zoning to show that there is no substantial relationship between the zoning set up by the legislative authority and the public welfare of the community. In the present instance, the existing EU-1 (one acre estate) zoning is in conformity with the Master Plan, is consistent with the properties adjacent to appellee’s property and is consistent with the actual development of the area. Further, we think that the record shows that the substantial change in the density allowance for this relatively small tract in relationship to all of the area adjacent to it is, as the Building and Zoning Department director states, piecemeal change and constitutes spot zoning. Cf. the considerations of law in Parking Facilities, Inc. v. City of Miami Beach, 88 So.2d 141, 142-143 (Fla.1956).

As for appellee’s contention that the court is merely changing a boundary line as he requested before the County Commission, we should point out that the decision of the trial judge does not change the boundary, which is Coral Way, but simply makes an indentation into the line for appellee’s benefit. It is a well-established zoning rule that there must be a dividing line drawn, sometimes arbitrarily. When that line must be drawn, it is to be drawn by the zoning authority and in the absence of showing that the location of the line is one which deprives the owner of the beneficial use of his property, it should not be changed by the judiciary. Cf. City of Miami Beach v. Lachman, 71 So.2d 148 (Fla.1953); and City of Tampa v. Consolidated Box Company, 110 So.2d 446 (Fla. 2d DCA 1959).

Thereupon, the final judgment granting certiorari is reversed and the cause remanded with directions to deny the writ and dismiss the petition.

Reversed and remanded.

      . The circuit court judge peremptorily stated:
      “Dade County shall, within thirty days from the date hereof, rezone the property which is the subject matter of this litigation to the EU-M zoning category of Dade County as it existed as of June 22, 1976, the date of the hearing before the Dade County Commission.”


author: GOMEZ, Associate Judge.

text:
    Anthony Francis DI MARTINO, Appellant, v. Nancy Connors DI MARTINO, Appellee.
    No. 77-1439.
    District Court of Appeal of Florida, Third District.
    July 18, 1978.

      Harry Zukernick, Miami Beach, Alfred J. Anton, Miami, for appellant.
    Fields & Garfield and Neil F. Garfield, Fort Lauderdale, for appellee.
    Before HENDRY, J., and HELIO GOMEZ, Associate Judge and CHARLES CARROLL, (Ret.), Associate Judge.-
   GOMEZ, Associate Judge.

The appellee-wife (petitioner below) filed a complaint for divorce in which complaint there was no allegation or claim of any special equity in the marital home of the parties owned as tenants by the entirety. In the final judgment of divorce of April 15, 1971, the court awarded the appellee exclusive use and possession of the premises and ordered that upon a remarriage, death or removal of the wife, the residence was to be sold and the proceeds distributed in the following manner:

“1. The value of the said residence is established between the parties as of the date of final hearing in this cause to be $20,000.00. The premises are encumbered by a mortgage in the sum of $8,478.85, as of the date of final hearing.
“A) If the property is sold for the sum of $20,000.00 or more:
“(i) The husband shall be entitled to receive $5,760.58 less one-half (14) of all seller’s fees, commissions and other costs incident to the sale.
“(ii) The balance of the proceeds of the sale shall be distributed to the wife, less balance of mortgage and balance of seller’s fees, commissions and other costs incident to the sale.
“B) If the property is sold for less than the sum of $20,000.00:
“(i) The husband shall be entitled to receive one-half (14) of the sales price less $4,239.42 (being one-half of the outstanding mortgage as of final hearing date) and less one-half of all seller’s fees, commissions and other costs incident to the sale.
“(ii) The balance of the proceeds of the sale shall be distributed to the wife, less balance of mortgage and balance of seller’s fees, commissions and other costs incident to the sale.”

In April, 1977, appellee submitted to the appellant a deposit receipt for sale of the former marital home at a price of $35,-000.00 and the warranty deed for execution by the appellant, and the appellant was advised that he would receive $4,216.33 from the sale.

By letter of April 26, 1977, the appellant asserted his right, title and interest in and to one-half of the net proceeds of the sale of the property after acknowledging the wife’s right to recover the mortgage payments made by her subsequent to the divorce.

The appellee filed a petition to compel compliance with final judgment seeking to compel the appellant to execute the warranty deed to the premises and to receive only those proceeds set forth in paragraph 6 of the final judgment of divorce. After a hearing the court entered its order dated June 14, 1977 to compel appellant’s compliance with final judgment wherein the court granted the appellee sole ownership of the premises and vested title solely in the ap-pellee without necessity for execution of any deed or other documents and also assessed the cost of the proceedings including attorney’s fees against the appellant.

From this order of June 14, 1977 this appeal is taken.

The point raised in this appeal is whether or not the trial court had the jurisdiction and authority to enter an order divesting the appellant of his one-half interest in the marital home.

We hold it did not.

Where a final judgment contains no finding of special equity in property, title is controlled by Section 689.15, Florida Statutes (1977); Cribb v. Cribb, 261 So.2d 566 (Fla. 4th DCA 1972). Said statute provides that in cases of estates by entirety, the tenants, upon divorce, shall become tenants in common.

Generally, in the absence of an agreement between the parties or appropriate pleadings praying for partition of jointly owned property upon entry of a divorce judgment, the court is without jurisdiction to dispose thereof. Kitchens v. Kitchens, 162 So.2d 539 (Fla. 3d DCA 1964). Neither does the court have jurisdiction to effect what might amount to a property settlement between the parties. Helsel v. Helsel, 138 So.2d 99 (Fla. 3d DCA 1962)

In a divorce judgment, an order of sale of property held as tenants by entirety is unauthorized. The parties become tenants in common. Weinstein v. Weinstein, 148 So.2d 737 (Fla. 3d DCA 1963). For the period after the divorce decree, the ex-wife should be entitled to credit for the portion of mortgage principal, interest, taxes, insurance and repairs she has paid which are allocable to the husband’s interest to be determined upon sale. Lyons v. Lyons, 208 So.2d 137 (Fla. 3d DCA 1968).

While a portion of the final judgment of divorce may have been erroneous and subject to reversal on direct appeal, it does not per se render the judgment void; and, where no appeal is taken from the final judgment, its provisions, erroneous or not, are binding on the parties. Cribb v. Cribb, supra.

In the case sub judice, the complaint for divorce did not contain any pleadings for partition or for special equity. There was no finding of special equity in the final judgment of divorce, and there was no reservation of jurisdiction by the court in the final judgment. Hence, upon entry of the final judgment of divorce, the appellant became a tenant in common with one-half interest in the property.

In the order from which this appeal is taken, the lower court was without jurisdiction and authority to divest the appellant of his one-half interest in the property. Any subsequent sale of the property would have to be by agreement of the parties, or, in the absence of such agreement, by the statutory remedy of partition.’ In a partition action, the interpretation and effect of the provisions of the final judgment, which was not appealed, upon appellant’s interest would be issues to be determined by the court having jurisdiction over the partition action.

We hold, therefore, that the lower court erred in entering the order of June 14, 1977 because it was without jurisdiction and authority to divest the appellant of his one-half interest in the property.

Reversed.


text:
    Howard V. PATTERSON, etc., Petitioner, v. McArthur WHITEHEAD et al., Respondents. Joseph Ronald ROEBUCK, etc., Petitioner, v. McArthur WHITEHEAD et al., Respondents.
    No. KK-186.
    District Court of Appeal of Florida, First District.
    July 20, 1978.
    W. N. Avera of Avera & Stripling, P. A., Gainesville; and Robert R. Perry of Miller, Perry & Brown, Palatka, for petitioner.
    James P. Judkins; Thomas F. Woods; James N. McConnaughhay, and Edgar C. Booth, Tallahassee, for respondents.
   PER CURIAM.

This petition for common law cer-tiorari fails to demonstrate that the trial court has acted without or in excess of its jurisdiction, or has departed from the essential requirements of law and that an appellate remedy would be inadequate. Petitioners complain of the court’s denial of petitioners’ motion “in limine” for entry of a pre-trial order forbidding the mention at trial of the taking and testing of blood samples from petitioners’ decedents, who received fatal injuries in an automobile collision. The admissibility of such evidence, notwithstanding the terms of Section 316.-066, Florida Statutes (1977), must ordinarily be determined at trial upon the evidence then submitted. Though prospective evi-dentiary rulings are often convenient and desirable, they may not ordinarily be reviewed immediately by proceedings in the nature of common law certiorari. This record suggests no unusual circumstances justifying pretrial appellate review of such an order. Without prejudice to the trial court’s ruling at trial and appellate review if necessary following final judgment, the petition is DENIED.

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


text:
    James W. STRADER et al., Appellants, v. Thomas A. and Sarah S. MORRILL, etc., et al., Appellees.
    No. JJ-195.
    District Court of Appeal of Florida, First District.
    July 20, 1978.
    Bryan W. Henry and James R. English of Henry, Buchanan, Mick & English, Tallahassee, for appellants.
    Thomas A. and Sarah S. Morrill, pro se.
   BOOTH, Judge.

This cause is before us on interlocutory appeal from an order denying motion to dismiss for failure to prosecute entered in the Circuit Court, Leon County.

Appellants, defendants below, sought dismissal of the complaint pursuant to Rule 1.420(e), Florida Rules of Civil Procedure, on the grounds that no activity, by filing of pleadings or otherwise, appeared on the face of the record for a period of one year. The court denied the motion and later supplemented its order by setting forth the reasons for the denial as:

“The Order dated February 17, 1978 which denied defendant’s Motion for Dismissal for Lack of Prosecution did not set forth any reasons for same, and in view of the circumstances it is deemed that such reasons should be stated. The above case has been under advisement before the Court for some time on questions presented by Motions for Summary Judgment, which have been filed in this case. The undersigned judge has since the argument on said Motion been confronted with a very heavy case load, particularly pertaining to matters pending in the Circuit Courts of Gadsden and Franklin Counties, to which the undersigned is the assigned judge. Furthermore, the issues in this case are varied and complex, the file is very thick with numerous papers to be examined and studied, and the Court deems that it is necessary that there be ascertained what are the issues and which of them are genuine issues and which of them may be disposed of on Summary Judgment, and that a full discussion be set forth in the order dealing with same. The Court did not deem that there was any lack of prosecution on the part of the plaintiff, and that the Court may take judicial notice of its having a matter under advisement. If such be the case, RCP 1.420(e) would not be applicable. The Court recognizes that the matter has been under advisement for some time, and intends to rule thereon shortly, but for the above reasons has been delayed in doing so.
In the light of the above, the Court deems to dismiss the case for lack of prosecution would have been highly inequitable and also not within the contemplation or scope of RCP 1.420(e).”

Rule 1.420(e) FRCP requires that activity in the prosecution of a cause be demonstrated by filing pleadings, orders of the court or otherwise and that failure to demonstrate such activity requires dismissal unless good cause is shown which excuses the lack of record activity. This cause has been under advisement and waiting decision of the trial court on motions for summary judgment. At this time the trial court is still engaged in the study and determination of the cause. Although such labor may not be evidenced by a record entry on the docket, it does represent activity directed toward concluding an important step in this litigation. Progress and activity as contemplated by the “otherwise” provision of the Rule has been and is occurring during the time that the trial court is engaged in studying the issues of fact and law presented by motion for summary judgment.

The trial judges of this State are under sufficient pressure from crowded dockets and lack of time without applying a “speedy trial” requirement to the decision-making process itself. Rule 1.420(e) does not require such an interpretation, either by language or intent.

The purpose of Rule 1.420(e) is twofold:

1) To require prompt and efficient prosecution of the case up to the point of submission for disposition or determination by the judge or the jury.

2) To prevent the clogging of the dockets of the trial courts with litigation that has been, essentially, abandoned for the stated period.

Neither of those purposes is served by requiring that a judge who has taken a case under advisement for the purpose of determining the matter act within a one-year period, or else dismiss the case.

Accordingly, the judgment below is AFFIRMED.

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


author: MELVIN, Judge.

text:
    Charles PITTMAN, Appellant, v. STATE of Florida, Appellee.
    No. HH-470.
    District Court of Appeal of Florida, First District.
    July 21, 1978.

      Michael J. Minerva, Public Defender and Stephen Lindsey Gorman, Asst. Public Defender, Tallahassee, for appellant.
    Robert L. Shevin, Atty. Gen., George R. Georgieff and Charles W. Musgrove, Asst. Attys. Gen., for appellee.
   MELVIN, Judge.

Appellant-defendant appeals from the judgment and sentence imposed upon him in the Circuit Court of Gulf County, Florida, upon his conviction by a jury of the offense of having unlawfully entered or unlawfully remained in a cafe located in said county, with the intent to commit an offense therein, contrary to the provisions of Section 810.02, Florida Statutes (1975).

The defendant had indicated that he would obtain private counsel and the court, having been later advised that he was unable to do so, appointed counsel to represent him. This appointment came two weeks before the trial date.. Upon the date of the trial, defense counsel advised the court that the defendant had, that day, advised counsel of the name of a witness, William Quinn; that Quinn owned the building that was allegedly broken into and that defendant had worked for Quinn on the building. Defendant urges that the testimony of witness Quinn would have been material in his defense because the thrust of the State’s case against the defendant turned upon fingerprints taken from broken glass from a window at the point of entry.

The defendant had a period of at least one week to advise his counsel of his alleged employment by the witness William Quinn. If he failed to do so, he failed at his own peril. State’s witness Damon Peters, Jr., testified that he owned the building containing Allen’s Cafe. Peters testified that, within his memory, defendant Pittman at no time did any work on his building. Peters further testified that Quinn rented a building across the street from Allen’s Cafe, not the building containing Allen’s Cafe.

The defendant has failed to establish any abuse of discretion on the part of the trial judge in denying his motion for continuance. Harrelson v. State, 259 So.2d 526 (Fla. 1st DCA 1972).

The second point presented by the defendant challenges the legal sufficiency of the evidence to support the verdict and the judgment of conviction based thereon.

The evidence reveals that the point of entry into Allen’s Cafe was a window located above a door, which window was seven and one-half feet above ground level, and boarded up from the inside. The record reveals that the defendant was not the worker who either originally placed the window in its position or who nailed the inside boards in their position. The owner of the business testified that he secured the building and closed the business at approximately 3:00 a. m. and returned at 5:30 a. m. to find that his building had been broken into, that glass was broken and the boards referred to had been removed. An F.B.I. fingerprint expert testified that fingerprints removed from the broken window were the fingerprints of the defendant. The defendant offered as his explanation of the presence of the fingerprints that he previously had worked on the building and that, thereby, his fingerprints could have been put on the broken glass. The State presented testimony to the effect that the defendant had never worked on the building and that the defendant’s witness, whose name the defendant revealed to his trial counsel on the day of trial, had not rented the premises of Allen’s Cafe. Although the defendant testified that he had worked on the building in which Allen’s Cafe is located, he did not claim that he worked in the area where the door and the broken window were located. The jury had the opportunity to observe the candor and demeanor of this defendant while he was testifying and the jury chose not to believe him.

Where a defendant offers his hypothesis of innocence in a circumstantial evidence case, and there is before the jury sufficient evidence outside the testimony offered by the defendant in connection with his theory of innocence, from which the jury could reasonably conclude, beyond a reasonable doubt, that the defendant and no one else committed the crime charged, such jury finding is to be upheld. See Atkinson v. State, 247 So.2d 793 (Fla. 1st DCA 1971) and Tillman v. State, 353 So.2d 948 (Fla. 1st DCA 1978).

The defendant having failed to demonstrate reversible error, the judgment appealed from is hereby AFFIRMED.

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


text:
    BELFORD TRUCKING COMPANY, Appellant, v. Edward James PINSON, etc., Appellee.
    No. HH-113.
    District Court of Appeal of Florida, First District.
    July 21, 1978.
    As Amended July 25, 1978.

      Monroe E. McDonald of Sanders, Mc-Ewan, Mims & McDonald, Orlando, for appellant.
    Charles R. Forman and M. Thomas Bond, Jr., of Musleh, Leak, Bond & Arnett, Ocala, for appellee.
   BOOTH, Judge.

This cause is before us on appeal from the order of the Circuit Court, Marion County, entered pursuant to Florida Statute § 440.24, and directing that appellant, Belford Trucking Company, pay the costs and attorneys fees on behalf of the workmen’s compensation claimant, appellee herein.

The sole question presented is whether Belford may rightfully be required to pay those fees and costs since the Judge of Industrial Claims found that the employer of the deceased employee was H & H Refrigerated Trucking Service and that H & H was primarily liable for the payment of benefits and required to reimburse Belford for compensation benefits already paid the claimant.

We hold that the trial court properly awarded fees and costs against Belford under the provisions of Florida Statute § 440.-10, in pertinent part as follows:

“In case a contractor sublets any part or parts of his contract work to a subcontractor or subcontractors, all of thé employees of such contractor and subcontractor or subcontractors engaged in such contract work shall be deemed to be employed in one and the same business or establishment, and the contractor shall be liable for and shall secure the payment of compensation to all such employees, except to employees of a subcontractor who has secured such payments . . .” (e.s.)

The undisputed facts in this case are, as found by the Judge of Industrial Claims, that Belford was in the relationship of a general contractor and H & H was the subcontractor, and employer of the deceased employee. It is also undisputed that the subcontractor, H & H, had not secured workmen’s compensation coverage. Under these circumstances, Chapter 440 contemplates that the claimant may go directly against the general contractor for compensation benefits due, that the general contractor is liable therefor without showing of any demand made, or refusal to pay on the part of the subcontractor [§ 440.10(2)], and that the general contractor’s rights are to seek reimbursement against the subcontractor, but not to refuse payment [§ 440.42(3)].

The intent and purpose of these provisions is to secure prompt payment of all amounts due to, or on behalf of, the claimant without regard to the primary or secondary responsibility of several employers/carriers and their rights to reimbursement.

In this case, the additional factor of Bel-ford’s responsibility and acceptance of the risk in subcontracting with H & H, a subcontractor without workmen’s compensation coverage, requires Belford pay these fees and costs, as it has all prior benefits, and seek reimbursement from its subcontractor. Belford’s obligation in this respect was not discharged by the order of the Judge of Industrial Claims determining H & H to be primarily liable.

Accordingly, Appellee’s motion for attorneys fees for services in this Court is GRANTED in the amount of $1,000, and the judgment below is AFFIRMED.

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

      . Fees for representation in death case before Judge of Industrial Claims and in the Rule nisi proceedings were $9,000 total.

      . Steele v. A. D. H. Building Contractors, Inc., 196 So.2d 430 (Fla.1967); McCormick v. Messink, 208 So.2d 113 (Fla. 2nd DCA 1968).


author: OTT, Judge.

text:
    Sammy Lee BOUIE, Appellant, v. STATE of Florida, Appellee.
    No. 78-214.
    District Court of Appeal of Florida, Second District.
    July 21, 1978.

      Jack 0. Johnson, Public Defender, and Thomas A. McDonald, Asst. Public Defender, Bartow, for appellant.
    Robert L. Shevin, Atty. Gen., Tallahassee, and Mary Jo M. Gallay, Asst. Atty. Gen., Tampa, for appellee.
   OTT, Judge.

Appellant was charged with a felony charge of receiving stolen property of a value of $100.00 or more in violation of Section 812.031, Florida Statutes (Supp. 1976). Thereafter, he entered a plea of nolo contendere to the section of the above statute [812.031(3)] which is punishable as a second degree misdemeanor. The court accepted appellant’s plea, withheld adjudication of guilt and placed him on one year probation. The probationary period was not objected to by appellant or his attorney. Over nine months later appellant was charged by affidavit and warrant with violation of various conditions of his probation. A hearing was held and testimony taken which supported the violation charges. The trial court made a finding that appellant had violated his probation, adjudicated him guilty on the original charge and sentenced him to 59 days imprisonment followed by another one year probation. The sentence was objected to by appellant’s attorney on the ground that it was an “enhancement of sentence” but for no other reason.

A timely notice of appeal was filed and now, for the first time in this sequence of events, appellant attacks his original probation as illegal since it exceeded the maximum probationary period allowable for a second degree misdemeanor violation. Appellant’s contention has merit.

The longest permissible period of probation allowable for the violation of a second degree misdemeanor is six months. Section 775.082(4)(b) and Section 948.04(1), Florida Statutes (1977); Alderman v. State, 356 So.2d 928 (Fla. 2d DCA 1978); McNulty v. State, 339 So.2d 1155 (Fla. 1st DCA 1976); Watts v. State, 328 So.2d 223 (Fla. 2d DCA 1976). Neither in Alderman v. State, supra, nor in this opinion are we dealing with the right of a trial court to set a probationary period not exceeding the maximum allowable sentence for the crime involved.

The warrant was filed after the date a lawful period of probation would have expired. Therefore, the affidavit and warrant charging him with violation of probation came too late. A probation violation cannot be charged after the probation period has expired. Carpenter v. State, 355 So.2d 492 (Fla. 3d DCA 1978). However, Carpenter does not directly address the issue raised herein nor does it address the failure of appellant to directly appeal the unlawful probation.

Probation is a matter of grace and when a defendant chooses to accept conditions of his probation he cannot later, having violated those conditions, challenge the original probation order or indirectly appeal the order or its contents. Section 924.06(2), Florida Statutes (1977); Stuart v. State, 353 So.2d 165 (Fla. 3d DCA 1977); Brown v. State, 305 So.2d 309 (Fla. 4th DCA 1974). The appellant does not complain of the conditions of his original probation, however, but rather its unlawful length. An unlawful sentence may be collaterally attacked at any time, even after the period for taking a direct appeal has expired. Bascelio v. Mayo, 81 So.2d 649 (Fla.1955); Collingsworth v. Mayo, 77 So.2d 843 (Fla.1955); Smith v. Mayo, 63 So.2d 510 (Fla.1953); In re Camp, 92 Fla. 185, 109 So. 445 (Fla.1926).

Consistent with the policy of allowing unlawful length of a criminal penalty to be raised at any time, we hold that the appellant may raise this issue after the period for a direct appeal has elapsed, by way of this appeal from the revocation of the probation.

Appellant served a period of probation equal to the maximum which could have legally been imposed upon him without being charged with violation of its provisions. The remainder of the probation period is void and cannot serve as a basis for a further sentence or probation by the trial court. Neither will it support the charge or finding of probation violation when the charge is filed more than 6 months after the probation period commenced. Accordingly, the trial court’s order is reversed and the cause is remanded to the trial court with instructions to discharge the appellant.

We see no useful purpose to be served by requiring the appellant to seek relief by way of petition for writ of habeas corpus or other appropriate route.

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