author: PEARSON, Judge. HAVERFIELD, Judge.

text:
    George J. BAYA and Mary Phillips Baya, Appellants, v. Robert REVITZ, Appellee.
    No. 75-1880.
    District Court of Appeal of Florida, Third District.
    March 8, 1977.
    Rehearing Denied May 23, 1977.
    Cushman & Cushman, Miami, Richard H. M. Swann, Coral Gables, for appellants.
    Lapidus & Hollander, Miami, for appellee.
    Before HENDRY, C. J., and PEARSON and HAVERFIELD, JJ.
   PEARSON, Judge.

We have been presented with a prior appeal in this matter. See Baya v. Revitz, 281 So.2d 521 (Fla.3d DCA 1973). We determined there that partition was a proper remedy and, as a second reason for an af-firmance, we held:

“Appellee contends that a stipulation in the record of this case was a stipulation of settlement and that therefore the appellants cannot appeal the consent judgment. We agree. Our examination of the record convinces us that the stipulation was a settlement.”

George and Mary Baya, the defendants‘in the trial court and appellants in that appeal, sought certiorari in the Supreme Court of Florida, where their petition was denied. Thereafter, Robert Revitz, the plaintiff and appellee upon the first appeal, brought an action against the Bayas claiming damages for an “abuse of process” by virtue of the appeal by the Bayas from a “consent judgment.”

Plaintiff Revitz prevailed in the trial court and received a final judgment for $52,000.00 compensatory damages and $10,-000.00 punitive damages. This appeal is from that judgment. The appellants urge first that where they appealed a final judgment without supersedeas or stay, the taking of a constitutionally-provided appeal does not constitute an abuse of process. Under their second point, appellants claim that the evidence submitted did not support the award of compensatory damages and that the evidence did not support the award of punitive damages. The appellee, on the other hand, supports the judgment by arguing that because the partition judgment was a consent judgment, no appeal could be prosecuted. On the second point, appellee supports the judgment on both a procedural and an evidentiary basis. We reverse upon a holding that the question of whether the partition judgment was, in fact, a consent judgment was a proper basis for appeal. We, therefore, do not reach the question of whether it is an abuse of process to appeal any consent judgment, nor do we discuss the damage issues.

It is a temptation to decide this appeal upon the basis of a broad holding because we are inclined to the view that the taking of a constitutionally-provided appeal from á final judgment is not an abuse of process within the meaning of the elements of the common law action. See Horn v. Horn, 73 So.2d 905 (Fla.1954); Mann v. Thompson, 118 So.2d 112 (Fla.1st DCA 1960); Johnson v. James H. Price & Co., 235 So.2d 763 (Fla.3d DCA 1970). The common law elements for abuse of process are discussed in Cline v. Flagler Sales Corp., 207 So.2d 709 (Fla.3d DCA 1968); and Concord Shopping Center, Inc. v. Litowitz, 183 So.2d 562 (Fla.3d DCA 1966). Nevertheless, it is our conclusion that the facts of this case do not present the necessity for such a holding. The appeal from the final judgment in partition presented two issues. The first was whether partition was a lawful remedy under the facts in that record. This was a justiciable issue properly raised in the trial court and determined in an opinion written by this court. In addition, the record of that appeal, as well as the present record, show that a motion to quash the appeal was filed by the appellee. This court, upon a consideration of the motion and upon examining the record and the briefs, found that a proper issue for determination on appeal existed and denied the motion to quash, then set the cause for hearing before the court and, after a full consideration of the briefs, oral argument and record, determined that issue. The second question presented on the appeal from the partition judgment was whether or not a certain stipulation entered into in the trial court after the denial of the defendant’s motion to dismiss was a stipulation rendering the judgment thereafter entered a consent judgment. The issue was one this court found arguable and, upon consideration of the argument, the court found that the stipulation did, in fact, render the judgment a consent judgment. Nevertheless, the question of whether a consent judgment existed was such that the appellee’s contentions required the consideration of this court and the question was finally determined only after the holding of this court and the denial of certiorari by the Supreme Court of Florida.

We hold, therefore, that the taking of an appeal which presents to the appellate court justiciable issues decided after a full consideration hereof upon the briefs, oral argument and record, as a matter of law is not an abuse of process under the elements of the common law action as they exist in the State of Florida. See Cline v. Flagler Sales Corp., 207 So.2d 709 (Fla.3d DCA 1968); Concord Shopping Center, Inc. v. Litowitz, 183 So.2d 562 (Fla.3d DCA 1966); Tellefsen v. Key System Transit Lines, 198 Cal.App.2d 611, 17 Cal.Rptr. 919 (1961); State v. Turner, 319 So.2d 233 (Miss.1975); 1 Am. Jur.2d Abuse of Process § 1 (1962); Prosser, Law of Torts, § 115 (3d ed. 1964).

Therefore, the final judgment appealed is reversed.

HAVERFIELD, Judge.

I am compelled to dissent. The elements of an action for abuse of process are (1) the defendant made an illegal, improper, perverted use of the process, a use neither warranted nor authorized by the process; (2) the defendant had an ulterior motive or purpose in exercising such illegal, perverted or improper use of process; (3) the plaintiff sustained damage as a result thereof. See 1 Am.Jur.2d Abuse of Process § 4 (1962); Cline v. Flagler Sales Corp., 207 So.2d 709 (Fla.3d DCA 1968). The gist of the action is grounded in the misuse of process, justified in itself, for an end other than that which it was designated to accomplish. Prosser on Torts, 3rd Ed., Misuse of Legal Procedure § 115 (1964); See also Tranchina v. Arcinas, 78 Cal.App.2d 522, 178 P.2d 65, 67 (Cal.App.1st 1947) and authorities cited therein. Further, the appellate process is one for the abuse of which an action will lie. Tellefsen v. Key System Transit Lines, 198 Cal.App.2d 611, 17 Cal.Rptr. 919 (Cal.App.1st 1961) and 1 Am.Jur.2d, Abuse’ of Process § 9 (1962) and Cf. W. Fla. Groc. Co., et a 1. v. Teutonia Fire Ins. Co., 74 Fla. 220, 229, 77 So. 209, 212 (1917).

Reviewing the facts giving rise to the present action, it was judicially determined by this court that the appeal of the appellants in the original partition suit from a consent judgment was improper. See Baya v. Revitz, 281 So.2d 521 (Fla.3d DCA 1973), cert. denied 291 So.2d 203 (Fla.1974); See also White v. Walker, 5 Fla. 478 (1854). The transcript of testimony in the present abuse of process action reveals that appellant George Baya testified that he would have been placed in an unfavorable income tax bracket if he received the money pursuant to the 1972 consent judgment during that year. Delaying the receipt of money pursuant to a consent judgment so as to avoid the tax consequences resulting therefrom clearly is an end other than which an appeal is designated to accomplish. There being no dispute that plaintiff-appellee was damaged by the prosecution of the appeal in Baya v. Revitz, supra, a prima facie case was proven by plaintiff-appellee and, therefore, I would affirm the judgment entered pursuant to the jury’s verdict in his favor.

      . The complaint, after reciting the above facts, described the nature of the action as follows:
      “4. Each and all of the following acts subsequent to the settlement and stipulation in the record of this cause at the trial in June of 1972 was undertaken by the Defendants with full knowledge that they had in truth and in fact settled such case, and with full knowledge of the fact that the appeals undertaken by them would cloud the Plaintiffs title to the property and would cause the Plaintiff undue expense and time in clearing such title, as well as in defending a lawsuit which Defendants had of their own volition agreed to settle and had in fact settled.
      “5. The acts of taking the appeal and refusing to accept the settlement to which they agreed was an abuse of the judicial process of this State directly against the Plaintiff and the utilization of the courts of this state in an improper manner to frustrate Plaintiffs claim to property and to prevent Plaintiff from proceeding with the property to which the Court had given Plaintiff title; and to which the Defendants had agreed and was done maliciously and with the intent to frustrate Plaintiff in carrying out the full effect of the final judgment entered by the trial court and to prevent Plaintiff from fully utilizing his property which Defendants had agreed to sell to him.”

      . Upon the entry of the consent judgment, the monies were tendered; but rejected by defendant-appellant, who appealed the judgment.


source: Caselaw Access Project

author: BARKDULL, Judge,

license: Public Domain

text:
    AMERICAN FOAM INDUSTRIES, INC., formerly known as American Foam Rubber Distributors, Inc., and Edward Rothbard, Petitioners, v. STATE of Florida, DEPARTMENT OF REVENUE, Respondent.
    No. 76-1943.
    District Court of Appeal of Florida, Third District.
    March 22, 1977.
    Rehearing Denied May 18, 1977.
    Ainslee R. Ferdie, Coral Gables, for petitioners.
    Robert L. Shevin, Atty. Gen., Patricia S. Turner, Asst. Atty. Gen., Tallahassee, for respondent.
    Before HENDRY, C. J., and BARK-DULL, J., and CHARLES CARROLL (Ret.), Associate Judge.
   BARKDULL, Judge,

The question to be determined in these proceedings is whether or not a certain transfer by quit claim deed is subject to documentary stamps, pursuant to Section 201.02, Florida Statutes (1975).

The petitioner, American Foam Industries, Inc., is a corporation in which Edward Rothbard is, and has been since 1961, the sole stockholder. In 1973, the corporation entered into a contract to purchase certain property from Seaboard Coastline Railroad, upon which they planned to construct a warehouse. The transaction was closed in August of 1973, with funds advanced by the corporation although title was placed in the individual name of Edward Rothbard. All payments on the purchase money mortgage were made by the corporation. Subsequently, a construction loan was taken out in the amount of $550,000.00. The note evidencing this debt was signed by Edward Rothbard, individually, and the mortgage securing same was executed by Mr. Roth-bard and his wife. Thereafter, the warehouse was completed and all mortgage payments due on the construction loan and/or permanent financing were made by the corporation.

In February of 1975, Rothbard executed a quit claim deed to the corporation, which took title to the property subject to the outstanding mortgage. No actual consideration was given for the quit claim deed; only nominal stamps were placed thereon, which resulted in the respondent bringing proceedings against the petition and the entry of an order assessing documentary taxes due of $1,631.70 and a penalty of like amount, for a total of $3,263.40 due from the corporation to the respondent.

This proceeding was then instituted, and the petitioner has preserved numerous points of alleged error; principally, that the transfer from the individual to the corporation was not a shift of the economic burden and was, in fact, a transfer from an agent to its principal. The respondent contends that this case is controlled by the recent Supreme Court opinion in Florida Department of Revenue v. DeMaria, 338 So.2d 838 (Fla.1976), wherein the following is found:

* * # * * *
“The trial court and the majority of the District Court of Appeal determined that the issue presented was controlled by State ex rel. Palmer-Florida Corp. v. Green, 88 So.2d 493 (Fla.1956). In Green, supra, there was a conveyance of unencumbered real property from a corporation to its stockholders without payment by the grantees. In the transaction the value of the property was charged to the paid-in surplus account of the corporation, and the paid-in surplus of the corporation was accordingly reduced upon transfer. This Court held that ‘. . the deed in question did not require documentary stamps because the grantees were not “purchasers,” and did not pay a “reasonably determinable”, “consideration” . as contemplated by Sec. 201.02, Florida Statutes, F.S.A. ... It was a mere book transaction. . . The courts below concluded that Kendall House, supra, and Rasberry v. Dickinson, 243 So.2d 236 (Fla.1st DCA 1971), also relied upon by DOR, were distinguishable from Green, supra, because Green entailed a mere book transaction and was not a sale to a ‘purchaser’ as contemplated by Section 201.02, Florida Statutes. “[1] In the instant case, like Green, supra, the transfer was by a corporation to its stockholder. However, in the case sub judice the transfer carried with it a shifting of the economic burden of paying the purchase money mortgage from the grantor corporation to the grantee shareholder. Upon the conveyance from the corporation to the shareholder, the corporation received a benefit to the extent that it was relieved of the obligation to pay the purchase money mortgage and the shareholder incurred a commensurate economic burden. This is so even though taxpayer took the conveyance only ‘subject to the purchase money mortgage,’ because, as stated by this Court in Kendall House, supra:
‘. . . It is an economic fact that persons who acquire property “subject to” a mortgage normally pay the indebtedness represented by the mortgage in order to prevent the loss of the property to the same extent as those persons acquiring property “assuming and agreeing to pay” the mortgage.’ Kendall House Apts., Inc. v. Dept. of Revenue, Fla., 245 So.2d 221, 223.
“[2] It is this shifting of the economic burden and benefit which supplies the consideration required by Section 201.02, Florida Statutes. * * * ”
[emphasis supplied]

If the case sub judice is not distinguishable under the facts, it clearly would be so controlled. However, in the matter before the Supreme Court the responsibility for making the mortgage payments changed upon the execution of the deed; in the instant case the responsibility or economic burden for making the mortgage payments always remained with the corporation. The corporation signed the original agreement to purchase; the property was to be acquired for the purpose of erecting a warehouse incident to the corporation’s business. The corporation made all the payments on the purchase money mortgage; it made all the payments on the construction mortgage; and it made all the payments due on any permanent financing. No payments were ever made by the individual.

There is no dispute over the fact that the individual was acting for the benefit of the corporation. It is apparent that no consideration moved from the corporation to the individual for the transfer and, therefore, under two provisions of the rules of the respondent, i.e., no consideration plus a transfer from agent to principal, this was an exempt transaction and the case should be governed by the principles enunciated in River Park Joint Venture 315076 v. Dickinson, 303 So.2d 654 (Fla.1st D.C.A. 1974); Straughn v. Story, 334 So.2d 337 (Fla.1st D.C.A. 1976).

Therefore, in light of the above discussion, we quash the order of the respondent here under review. In view of the above and foregoing, the other points raised by the appellant have not been considered in this determination.

      . * * *
      “Grantee hereby agrees, as part of the consideration of this conveyance, to construct within one year from October 29, 1973, on the land hereby conveyed, the following:
      “A warehouse containing a minimum of 50,-000 square feet of floor space,”
      * * jfc ‡ * ‡

      . Florida Administrative Code, Ch. 12A — 4.14 Conveyances Not Subject to Tax.

      “(2) No Consideration: Conveyances of realty without consideration, including a deed conveying realty as a bona fide gift, although the deed may recite a consideration for the transfer, such as ‘natural love and affection and $1’, ‘desire to promote the public welfare and $1’, or ‘$1 and other valuable consideration’; a gift of realty by a husband to his wife accomplished through the conveyance of the property for an ostensible consideration to a ‘straw man’ who immediately reconveys the property to the wife; (only minimum tax is required) (Attorney General Opinion 053-179, Aug. 3, 1953, Omitted from Biennial Report) (Letter from the Attorney General to State Comptroller dated Dec. 10, 1962) and a deed to or by a trustee not pursuant to a sale (only minimum tax is required). (Attorney General Opinion, Jan. 11, 1934, 1933-34 Biennial Report, Page 45) (Letter from Attorney General to State Comptroller dated Dec. 10, 1962)
      * * sj« * sfc
      (5) Agent to Principal: A deed from an agent to his principal conveying real estate purchased for and with funds of the principal.”
      # * * * * *


author: SMITH, ROBERT P., Jr., Associate Judge. COBB, WARREN H., Associate Judge,

text:
    Martin C. HAHN, Appellant, v. FIRST NATIONAL BANK OF DELRAY BEACH, etc., et al., Appellees.
    Nos. 75-2296, 75-2297.
    District Court of Appeal of Florida, Fourth District.
    March 25, 1977.

      Robert McK. Foster, Palm Beach, for appellant.
    James E. Weber of Burns, Weber & Boyes, West Palm Beach, and Nowlin & Adams, Delray Beach, for appellees First National Bank of Delray Beach and Gladys M. Quick.
   SMITH, ROBERT P., Jr., Associate Judge.

This is an appeal from an order dismissing appellant’s action for lack of prosecution. There were lengthy and repeated delays in prosecution, indicated in some detail in Judge Cobb’s dissenting opinion. But the action was not dismissible under Fla.R.Civ.P. 1.420(e) because appellant propounded interrogatories immediately before appellee filed its motion to dismiss for non-prosecution. Flack v. Kuhn, 277 So.2d 593 (Fla. 4th DCA 1973); City of Jacksonville v. Hinson, 202 So.2d 806 (Fla. 1st DCA 1967). Appellee urges that the case was nevertheless properly dismissed in the trial court’s inherent power. We hold this case does not fall in the narrow class of cases which may be dismissed for failure to prosecute notwithstanding that Rule 1.420(e) is inapplicable.

Reddish v. Forlines, 207 So.2d 703, 704-05 (Fla. 1st DCA 1968), recognized that trial courts have inherent power to dismiss an action for failure to prosecute because of delay in securing service of process. Accord, Gonzalez v. Ryder Systems, Inc., 327 So.2d 826 (Fla. 3d DCA 1976). This, obviously, is not such a case. Judicial statements giving wider range to the trial court’s discretion to dismiss have been made as dicta in cases held improperly dismissed, or as alternative holdings in cases dismissible under the Rule. Popkin v. Crispen, 213 So.2d 445, 448 (Fla. 4th DCA 1968), cert. den., 222 So.2d 748 (Fla.1969); Shalabey v. Memorial Hosp. of South Broward Hosp. Dist., 253 So.2d 712, 714-15 (Fla. 4th DCA 1971), cert. den., 257 So.2d 562 (Fla.1972); Nicholson v. Eli Lilly and Co., 285 So.2d 648 (Fla. 3d DCA 1973), cert. den., 293 So.2d 717 (Fla.1974).

It has also been held that the trial court is empowered, in the exercise of sound discretion, to dismiss a cause or deny relief for plaintiff’s failure to prosecute in response to a direct order. See State ex rel. Croker v. Chillingworth, 106 Fla. 323, 143 So. 346 (1932); Maloy v. Bristow, 138 So.2d 801 (Fla. 3d DCA 1962), cert. den., 146 So.2d 381 (Fla.1962), cert. den., 372 U.S. 976, 83 S.Ct. 1111, 10 L.Ed.2d 142 (1963); McLean v. McLean, 340 So.2d 493 (Fla. 1st DCA 1976). That power must be sparingly exercised. Palm Shores, Inc. v. Nobles, 149 Fla. 103, 5 So.2d 52 (1941); Popkin, supra, 213 So.2d at 448; Rowley v. Bankers United Life Assur. Co., 311 So.2d 380 (Fla. 3d DCA 1975). In the case before us there was no direct order which sought to speed prosecution of the languishing action. It was therefore error to dismiss the action.

REVERSED.

CROSS, J., concurs.

COBB, WARREN H., Associate Judge, dissents, with opinion.

COBB, WARREN H., Associate Judge,

dissenting:

In this cause the trial court dismissed for lack of prosecution. Although it is not apparent from the face of the order or the final judgment of dismissal entered by the trial court, it is clear from the record, the briefs and oral argument of counsel that the dismissal was argued to, and considered by, the trial court on the basis of the inherent power of the court, acting as a matter of discretion, as opposed to a mandatory dismissal pursuant to Fla.R.Civ.P. 1.420(e). Therefore, this case should be reviewed from that perspective.

It is clear that the trial court had inherent power to dismiss for failure to diligently prosecute independent of any rule of court. Nicholson v. Eli Lilly and Co., 285 So.2d 648 (Fla. 3d DCA 1973); Shalabey v. Memorial Hospital of South Broward Hospital District, 253 So.2d 712 (Fla. 4th DCA 1971); Popkin v. Crispen, 213 So.2d 445 (Fla. 4th DCA 1968); and Reddish v. Forlines, 207 So.2d 703 (Fla. 1st DCA 1968). See also 24 Am.Jur.2d Dismissal, Discontinuance and Nonsuit § 59 and 167 A.L.R. 1062.

The record herein reveals that the appellant, as plaintiff, filed complaint on June 11, 1970. Various motions were filed and hearings held in regard to the complaint; an amended complaint was allowed to stand in May 1971. On June 21, 1971, the appel-lees, as defendants, filed their answer. Thereafter, in 1971 and 1972, three attempts by defendants to depose plaintiff, who apparently suffered some mental or physical infirmity, were thwarted by protective orders. During this period, plaintiff filed requests for admission on June 30, 1972. These were objected to and the objections were denied on August 3, 1972. In September 1972 the defendants took the depositions of two witnesses.

After a hearing on October 5, 1972, on plaintiff’s motion for a protective order, which was granted, the case apparently languished until October of 1973, at which time an additional law firm appeared of record for plaintiff and the defendants moved to dismiss for failure to prosecute. At the same time, one of the defendants objected to interrogatories served upon it by plaintiff on October 11, 1973.

Almost another year then elapsed until, on September 16, 1974, the plaintiff moved to compel answers to the 1973 interrogatories.

The following year, on September 10, 1975, a suggestion of the plaintiff’s incompetency was filed and a motion was made to substitute the guardian of his property as party plaintiff. This motion, together with the motion to compel and the motion to dismiss for failure to prosecute, were all noticed for hearing to be held on September 17, 1975. Subsequent thereto, on September 29, 1975, the trial court entered an order “that the motion to dismiss shall be granted.” Judgment of dismissal, following motion for rehearing, was filed on December 17, 1975, from which this appeal ensued.

As a consequence of the posture in which this case is presented, the issue may be stated in succinct fashion: did the trial court abuse its inherent discretion in dismissing this cause?

It was pointed out by this court in Pop-kin, supra, and again in Shalabey, supra, that a trial court’s discretionary dismissal for failure to diligently prosecute creates a heavy burden which must be borne on appeal by the losing party.

In my view the appellant, who gave only spasmodic annual attention to this cause in the trial court over a four year period, clearly has not met that burden. I would affirm.

      . This provision was amended effective January 1, 1977 to provide that mere inaction for a period of less than one year shall not be sufficient cause for dismissal for failure to prosecute.


author: PER CURIAM. ANSTEAD, Judge,

text:
    Lois NIESEN, Appellant, v. Stephen Michael NIESEN, M. D., Appellee.
    No. 76-2064.
    District Court of Appeal of Florida, Fourth District.
    March 25, 1977.
    Rehearing Denied May 10, 1977.
    Harry G. Carratt, Morgan, Carratt & O’Connor, Fort Lauderdale, for appellant.
    Carol M. Anderson, Anderson & Anderson, Fort Lauderdale, for appellee.
   PER CURIAM.

Affirmed.

CROSS and DAUKSCH, JJ., concur.

ANSTEAD, J., dissents in part.

ANSTEAD, Judge,

dissenting in part:

I would reverse the trial court’s order denying temporary attorneys fees on the basis that the record clearly shows that the wife has the need and the husband has the ability to pay. Section 61.16, Florida Statutes (1975); Mertz v. Mertz, 287 So.2d 691 (Fla.2d DCA 1973); Helsel v. Helsel, 138 So.2d 99 (Fla.3d DCA 1962).


author: PER CURIAM.

text:
    FORT PIERCE TOYOTA, INC., and Richard Raffo, Appellants, v. Donald WOLF, Appellee.
    No. 76-398.
    District Court of Appeal of Florida, Fourth District.
    April 1, 1977.
    Rehearing Denied May 25, 1977.
    Philip G. Nourse, and Frank Fee, Fee, Parker & Fee, Fort Pierce, for appellants.
    Lee E. Muschott, and John T. Brennan, Smith & Brennan, Fort Pierce, for appellee.
   PER CURIAM.

Appellant-defendants, Fort Pierce Toyota, Inc., and Richard Raffo, appeal final judgment entered in favor of appellee-plaintiff, Donald Wolf, in an action seeking compensatory and punitive damages for breach of contract on stopping payment on a check. At conclusion of. trial by jury, a verdict was returned awarding both compensatory and punitive damages in favor of Donald Wolf and against Richard Raffo. Final judgment was subsequently entered by the trial court. Thereafter, by separate order, the trial court denied appellee’s motion to tax interest on the amount set forth in the check, which was awarded by the jury, from the date of the check to the date of final judgment. Hence this appeal and cross-appeal.

Upon consideration of the record, testimony, briefs and arguments of counsel for the respective parties, we determine the trial court erred in entering final judgment for punitive damages as there is no evidence to support the award of punitive damages. We further determine that the trial court erred in not taxing interest on the amount of the check from the date thereof to date of final judgment as the face amount of the check was for a liquidated sum.

Accordingly, that part of the final judgment awarding punitive damages is reversed. In all other respects the final judgment is affirmed.

The order disallowing interest on Twenty-four Thousand Five Hundred Dollars ($24,500), the amount of the check, from the date of the check to date of final judgment is reversed.

The cause is remanded for entry of an appropriate judgment consistent with the views herein expressed.

Affirmed in part; reversed in part and remanded, with instructions.

CROSS, ANSTEAD and LETTS, JJ., concur.


author: STETTIN, HERBERT, Associate Judge.

text:
    Barry P. RIFKIN et al., Petitioners, v. The FLORIDA REAL ESTATE COMMISSION and Floyd M. Stevens, Respondents.
    No. 76-419.
    District Court of Appeal of Florida, Fourth District.
    April 1, 1977.
    Rehearing Denied May 23, 1977.
    Barry D. Schreiber, Breger & Schreiber, North Miami Beach, for petitioners.
    Howard Hadley and Vaughan David Hulse, Winter Park, for respondents.
   STETTIN, HERBERT, Associate Judge.

This is a Petition for Certiorari to the Florida Real Estate Commission (hereinafter called the Commission) to review an adjudication that Barry P. Rifkin, Sandra Mae Rifkin, and Flag Realty, Inc., violated the provisions of Section 475.25(l)(e), Florida Statutes, in that they were guilty under the laws of this state of the crime of fraudulent or dishonest dealing.

The facts were determined by an administrative hearing officer and are without material dispute. Bobby Glenn Johnson, who is not a party to this proceeding, placed advertising in the yellow pages of a telephone directory on behalf of Flag Realty, Inc., with the consent of its principals, Mr. and Mrs. Rifkin. It stated: “Free Appraisals by Licensed Real Estate Appraiser.” The Commission charged this advertising was misleading within the meaning of Florida Statutes 817.41 and 817.45, because no one connected with Flag Realty, Inc. was a licensed real estate appraiser. Florida law does not require separate licensing of an appraiser; appraisals may be made by a licensed real estate broker or salesman; Section 475.01(2), Florida Statutes.

The Commission also charged Barry Rif-kin was guilty of false or misleading advertising in his partnership with one Arnold Savader, doing business as Broward Investments, by permitting Savader to advertise as follows:

“Immediate cash for your home! No brokers involved (No Commission) No Closing Costs. Quick Closings. Call me for a free estimate!”

Although Savader’s name and phone number were the only ones used in the operation of the business, Barry Rifkin is a licensed real estate broker. The Commission ruled the advertising was, therefore, false or misleading.

It is undisputed no criminal proceedings were ever initiated against the petitioners for violations of Sections 817.41 and 817.45, Florida Statutes. The Commission takes the position they have the authority under Section 475.25(l)(e), Florida Statutes, to determine whether registrants are “guilty of a crime against the laws of this state or any other state of the United States, involving moral turpitude, or fraudulent or dishonest dealing . . .”, regardless of whether or not an actual criminal proceeding has been filed. No other occupational licensing statute in Florida contains a grant of such authority. Many contain wording to the effect that conviction of a crime will constitute a basis for suspension or revocation of a license to practice a state regulated activity.

Petitioners argue the statute in question must be read to require prior conviction, or at the least, adjudication of guilt by a court of criminal jurisdiction before they may be punished under Section 475.25(l)(e), Florida Statutes.

The issue appears never to have been squarely ruled upon in prior decisions, although there are cases where the Commission’s authority under the statute in question has been involved. In Reid v. Florida Real Estate Commission, 188 So.2d 846 (Fla.2d DCA 1966), a proceeding was brought by the Commission both under Section 475.25(l)(a), Florida Statutes, to determine Reid’s guilt of dishonest dealing; and under Section 475.25(l)(e), Florida Statutes, to determine Reid’s guilt of a crime involving moral turpitude. She was informed against by the Commission for shoplifting. She blamed the incident on problems arising from physical and emotional stress but was found guilty. The District Court of Appeal reversed the Commission’s finding on the ground the evidence did not establish the criminal intent necessary for the existence of the crime of petty larceny. There was no discussion by the Court of whether or not an adjudication of guilt by a court of competent jurisdiction was a necessary prerequisite to a finding by the Commission that Section 475.25(l)(e), Florida Statutes, had been violated.

In McKnight v. Florida Real Estate Commission, 202 So.2d 199 (Fla.2d DCA 1967), certiorari was denied from an order of the Commission finding a violation of Section 475.25(l)(e), Florida Statutes, because the real estate broker failed to deny the essential elements of the crime charged; obtaining funds by making, uttering and delivering worthless checks. The Court ruled, since petitioner did not deny the charge made by the Commission and no attempt was made to deny the allegations, that they were admitted as true. The Commission “could properly rely upon this fact without offering affirmative proof at the hearing.” 202 So.2d at 200. In Everett v. Mann, 113 So.2d 758 (Fla.2d DCA 1959), a close reading of the case reveals a holding that possession of lottery tickets of itself is not sufficient to support a finding of moral turpitude within the meaning of Section 475.25(l)(e), Florida Statutes. The decision also states, however, “We are not confronted with a conviction of conducting a lottery or other allied phases of operating a lottery, but with a misdemeanor offense, merely possession of tickets as denounced under section 849.09(h), Florida Statutes, F.S.A.” Thus, in Carp v. Florida Real Estate Commission, 211 So.2d 240 (Fla.3d DCA 1968); certiorari denied 219 So.2d 427 (Fla.1969), a conviction for bookmaking was held sufficient to prove guilt of a crime involving moral turpitude within the meaning of Section 475.25(l)(e), Florida Statutes.

In the instant case, petitioners have never been tried for or conceded their guilt of any crime. We hold the Commission may not make a finding absent an actual adjudication of guilt by a court of competent jurisdiction. To rule otherwise would deprive petitioners of their rights as defendants in a criminal proceeding. See Horne v. Florida Real Estate Commission, 163 So.2d 515 (Fla.1st DCA 1964). We note in passing Section 475.25(l)(a), Florida Statutes, provides ample authority for the Commission to proceed against any license holder for the same acts with proper procedural safeguards.

The petition for writ of certiorari is granted, and these proceedings are reversed with directions to dismiss the information.

MAGER, C. J., and ALDERMAN, J., concur.

      . Section 475.25(1), Fla.Stat. — Grounds for revocation or suspension—
      “The registration of a registrant may be suspended for a period not exceeding two years, or until compliance with a lawful order imposed in the final order of suspension, or both, upon a finding of facts showing that the registrant has:”
      Section 475.25(e), Fla.Stat.
      “Been guilty of a crime against the laws of this state or any other state or of the United States, involving moral turpitude, or fraudulent or dishonest dealing; and the record of a conviction certified or authenticated in such form as to be admissible in evidence under the laws of the state, shall be admissible as prima facie evidence of such guilt.”

      . Accountants — Section 473.251(l)(d)
      Architects — Section 467.14(l)(b)
      Barbers — Section 476.14(1) & (10)
      Chiropractors — Section 460.13(3)(c)
      Cosmetology — Section 477.15(1)
      Court Reporters — Section 457.081(1)
      Dentists — Section 466.24(3)
      Florida Uniform Land Sales Practices — Section 478.161(l)(b)
      Funeral Directors — Section 470.13(2) and 470.13(1)
      Investigative Agencies — Section 493.14(l)(f)
      Land Surveyors — Section 472.10(3)(a)
      Landscape Architects — Section 481.091(l)(b)
      Masseurs — Section 480.11(l)(b)
      Medical Doctors — Section 458.1201(l)(c)
      Mortgage Brokers Act — Section 494.15(l)(d)
      Naturopaths — Section 462.14(2)
      Nurses — Section 464.21(1)
      Nursing Home Administrators — Section 468.-175(l)(d)
      Occupational Therapists — Section 468.-217(l)(c)
      Optometry — Section 463.11(l)(b)
      Osteopaths — Section 459.14(2)(a)
      Pest Control — Section 482.161(4)
      Pharmacy — Section 465.101(l)(g)
      Pilots — Pilotage—Section 310.101
      Podiatry — Section 461.08(l)(b)
      Professional Engineers — Section 471.26(1)
      Psychologist — Section 490.26(l)(c)
      Sanitarian — Section 491.12(3)
      Speech Pathology — Section 468.147(3)
      Veterinarians. — Section 474.31(18)


author: LETTS, Judge.

text:
    Evelyn M. McALLISTER, Appellant, v. John Gordon McALLISTER, Appellee.
    No. 75-2018.
    District Court of Appeal of Florida, Fourth District.
    April 1, 1977.
    Rehearing Denied May 23, 1977.
    Robert M. Curtis of Saunders, Curtis, Ginestra & Gore, Fort Lauderdale, for appellant.

      William E. Blyler of Patterson, Maloney & Shankweiler, Coral Springs, for appellee.
   LETTS, Judge.

This appeal stems from a dissolution of marriage in which the wife of a successful doctor received a $500.00 per month award of permanent alimony.

This cause is reversed in part.

The McAllisters were married in 1951 while he was a medical student and she an employed pharmacist. The record reflects that the wife worked, to assist her husband finish school, for over a year after the marriage, and almost immediately thereafter, bore the first of four children. Subsequently, until now, she pursued the outmoded profession of housewife and mother, only once working during a vacation period, in 24 years of marriage. Upon receiving his medical degree, the husband commenced to build a medical practice, equipping his office with the aid of a loan secured by the meager inherited stocks and bonds owned by the wife. His practice became successful and Doctor McAllister’s 1973 corporate income tax return, for his single P.A., reflected a gross income of over $200,000. Moreover, his personal return for that same year, even after his accountants had done with their computations, reflected a payment to himself of a $75,000 salary. By contrast, the wife’s income from dividends and interest totalled less than $2,200 in that same year.

The record reflects that Doctor McAllis-ter is a good father, 49 years old and a man’s man, who goes elk hunting in Wyoming, dove shooting in Mexico, fishing, belongs to the yacht club and enjoys many skiing excursions. Vacations have included several trips to the Bahamas, Canada and to Europe. He breeds horses, co-owns cattle, and he himself claims that his monthly personal living expenses add up to over $2,600. There can be no doubt that he enjoys a style of living and social prestige which, by the rest of society’s standards, must be termed both generous and glamorous, and which can continue completely unaffected by the permanent alimony award in the court below. The wife, on the other hand, aged 48, although also able bodied and capable of employment, will, in terms of permanent alimony awarded, be receiving only $500.00 per month, plus her private income of $175.00, for a grand total, before taxes, of $675.00 per month, plus whatever she can earn. She claims her knowledge of pharmacology is so outdated that she cannot resume her former profession, but regardless of the truth of this, there is no suggestion that she cannot procure work. (Pharmacologists are paid $6.00 per hour, according to the record). The wife, apparently, has latterly continued her education, part-time, and now holds a degree in anthropology from Florida Atlantic University, but neither she, nor any of her graduate classmates, have been able to secure a job in this field.

The final judgment, insofar as alimony is concerned, awarded the wife $500.00 a month rehabilitative alimony for five years, and $500.00 a month permanent alimony, until his death or her remarriage. In addition, she was given possession of the house for five years (she was already the owner of record of an undivided one-half thereof and her assets were used to collateralize a second mortgage when it was purchased) and the husband required to pay the mortgage and taxes during that period, which he can deduct. At the end of the five years, the house is to be sold and the proceeds equally divided.

The foregoing recitation of facts and circumstances in the case now before us, is laborious and detailed; however, we find it neither a waste of time nor paper, because we would hope by this opinion to help clarify the law regarding alimony where a breakup of a long term family marriage is involved, and we perceive a tendency by some trial courts, to undercompensate the wife. It would appear that, in some instances at the trial level, the result has very much hinged upon the luck of the draw depending upon which division in the courthouse gets the case; however, we see no such variation at the appellate level, where the recent case law on this kind of long term family marriage breakup has been reasonably uniform. Much of what we will say hereafter has already been covered in a shorter form by Chief Judge Mager in Gordon v. Gordon, 335 So.2d 321 (Fla. 4th DCA 1976) but we shall repeat it, and expand upon it, for future reference at the trial level.

The history of the change in alimony concept, up through the new dissolution of marriage law and beyond, is best set forth by Judge Rawls in the case of Brown v. Brown, 300 So.2d 719 (Fla. 1st DCA 1974), and we see no purpose to repeat it here. Suffice it to say that reasonable permanent alimony still lives, especially, in dissolutions involving the long time role of a mother and housewife.

Alimony is traditionally predicated on three criteria: (1) the ability of the husband to pay it, (2) the needs of the wife compared to reasonable expectations from her own income, and (3) the standard of living enjoyed by the wife during marriage. Caracristi v. Caracristi, 324 So.2d 634 (Fla. 2nd DCA 1976). In turn, these three criteria have, in developing case law, been supplemented by six more: (4) the length of the marriage; (5) the number of children. (Included in this category should be the extent to which the wife has been required to do the actual housework and perform the chore of raising the children, vis a vis the amount of outside domestic assistance paid for by the husband;) (6) the relative health and physical condition of both the wife and the husband, and (7) the extent of the contribution by the wife to her husband’s successful career.

An eighth factor considered by the courts concerns the conduct, or misconduct, of the parties during the marriage. Oliver v. Oliver, 285 So.2d 638 (Fla. 4th DCA 1973). This particular category is cited with some reluctance, (although in the light of case law, it would be remiss to exclude it) for we recognize that, inevitably, a consideration of conduct involves a retrogression back to the fault concept and away from no fault; however, in Oliver the Court was careful to point out that the extent of such evidence should be limited, at the trial judge’s discretion. Moreover, in Oliver, it would appear that the misconduct was gross, for the wife claiming alimony was all the time drunk, repeatedly threatened to kill her husband and made no effort whatever to keep house. The Oliver court permitted such testimony to be considered by the chancellor below on the basis of Florida Statute § 61.08(2) (1975), which says:

In determining a proper award of alimony, the court may consider any factor necessary to do equity and justice between the parties, (emphasis supplied).

By contrast, there is no suggestion in the record now before us of any misconduct by Dr. McAllister, but likewise, there is no indication that Mrs. McAllister was other than a good spouse. At all events, we would urge that evidence of misconduct be limited to gross situations such as existed in Oliver, with no mitigating circumstances, otherwise, as was conceded in that case, we will return to the very type of often sordid and provocative testimony of fault . . . that lead to the enactment of the so-called no-fault dissolution of marriage chapter.” Id. at 640.

Finally, there is a ninth catch all consideration set forth in Kennedy v. Kennedy, 303 So.2d 629 (Fla.1974), where the Supreme Court said that while alimony should not result in one spouse having to “. pass automatically from misfortune to prosperity, neither should a good [spouse] suffer a shocking change from prosperity to misfortune.”

In the case now before us, we find all nine of these criteria present, in one form or another, although we quickly point out that the list is intended only as exemplary and neither exclusive nor demanding of the presence of all nine. Mrs. McAllister contributed to the early success of her healthy husband, who is well able to provide support, was married to him for 24 years, enjoyed a high standard of living and community prestige as his wife, will need financial help desperately at the end of five years, and bore her husband four children. By including the number of children as one of the nine significant factors, we do not mean to promote child bearing as an indirect form of future planning in order to insure alimony. After all, child support payments are more appropriate for that; however, it is axiomatic that a husband is a willing participant in the very existence of offspring, and their pre- and post-natal presence, in significant numbers, is a formidable obstacle to the mother pursuing a more financially rewarding career.

The award of permanent alimony in this case was $6,000 per year. The tax laws permit a deduction for that and the award will only actually cost Doctor McAllister half that sum, which in net effect, will hardly discomfit his life style by more than the sacrifice of one elk hunting trip to Wyoming a year. His wife, by contrast, will be devastated, and Mrs. McAllister, her children now adult, (the last is 18 this year), is left with little but her memories. Such is neither just, nor proper, nor is it the law of this State. Indeed, a ruling to the contrary would require society to re-classify the traditional all-American concept of Mom and apple pie and re-label it a most hazardous occupation that all young girls should be dissuaded from.

It is normally not our function to set the amount of the award, but in a case such as this, the trial court must allow a wife to continue with some semblance of her former standards while at the same time ensuring that the husband is not strapped so that his incentive to strive forward and his lust for life are seriously impaired. By so ruling, we do not intend to lend support to the thought that a middle aged healthy woman need not go out to work. In our society, today, women, more often than not, are required to work until retirement and there is no reason to excuse Mrs. McAllister from doing the same just because her former position allowed her to follow a more traditional role. On the other hand, it must be remembered that at her age and level of earning experience, Mrs. McAllister is unlikely to become a great financial success story, and in all probability she will not achieve other than a very modest income.

Accordingly, mere rehabilitative alimony is not enough; however, the award of reasonable permanent periodic alimony does not forever enslave the husband, because significantly changed circumstances, either his or hers, are well settled in the law as a basis for later modification thereof. As was said in Wilson v. Wilson, 279 So.2d 893 (Fla. 4th DCA 1973), “Nil prospects to the contrary notwithstanding, if she should somehow blossom into a financially productive member of society and other material changes occur, the husband can obtain a trial court review of the award”.

We therefore reverse and direct an increase in the permanent periodic alimony from $500.00 to $1,000.00 per month during the first five years encompassed by the judge’s final order. At the end of said period, after, and not before, the house has been sold and the husband no longer required to pay the mortgage payments and taxes on the house, the permanent periodic alimony shall be increased to $1,500.00 per month, until his death or her remarriage. The $500.00 per month rehabilitative alimony is hereby cancelled.

In so holding, we recognize that this decision does little more than repeat the same award as was made by the trial court, except that the total sum arrived at is permanent, rather than a combination of permanent and rehabilitative. Such a similar result is reached by us in deference to the trier of the fact who was out there on the firing line, which we were not; however we would comment that the award is low.

It should also be noted that we have not forgotten the possibility of lump sum alimony being appropriate, but cannot find the trial judge’s decision in this regard to be an abuse of discretion under the facts and circumstances of this case.

As to the Winslow Homer painting, not referred to by the trial court, Doctor McAllister has sold it and kept the entire net proceeds of $12,500, yet his ex-wife was obviously a half owner of said painting since it came with the home and was included in the purchase price thereof. The title to said real estate was formerly a tenancy by the entirety and is now a tenancy in common. The same tenancy may be ascribed to the painting. The Doctor is directed to pay Mrs. McAllister $6,250.00.

In all other respects, the final judgment is affirmed.

ALDERMAN and ANSTEAD, JJ., concur.

      . It is not reflected in the record that he could not have finished his education but for her earnings.

      . Points 4 through 7 above include:

        DeCastro v. DeCastro, 334 So.2d 834 (Fla. 3rd DCA 1976); Dorman v. Dorman, 332 So.2d 358 (Fla. 1st DCA 1976); Hausman v. Hausman, 330 So.2d 833 (Fla. 3rd DCA 1976); Norton v. Norton, 328 So.2d 484 (Fla. 1st DCA 1976); Gall v. Gall, 336 So.2d 10 (Fla. 2nd DCA 1976); Fugassi v. Fugassi, 332 So.2d 695 (Fla. 4th DCA 1976); In re Marriage of Stevens, 327 So.2d 851 (Fla. 4th DCA 1976); Sommese v. Sommese, 324 So.2d 647 (Fla. 1st DCA 1976); Nevins v. Nevins, 305 So.2d 63 (Fla. 3rd DCA 1975), cert. den. 327 So.2d 33; Newberger v. Newberger, 311 So.2d 176 (Fla. 4th DCA 1975); Brook v. Brook, 289 So.2d 766 (Fla. 3rd DCA 1974), cert. den. 300 So.2d 895; Ruhnau v. Ruhnau, 299 So.2d 61 (Fla. 1st DCA 1974); Keller v. Keller, 308 So.2d 106 (Fla.1974); Schultz v. Schultz, 290 So.2d 146 (Fla. 2nd DCA 1974); Brown v. Brown, 300 So.2d 719 (Fla. 1st DCA 1974), cert. dism. 307 So.2d 186; Dash v. Dash, 284 So.2d 407 (Fla. 3rd DCA 1973); Suter v. Suter, 279 So.2d 325 (Fla. 1st DCA 1973), cert. den. 284 So.2d 396; Sharpe v. Sharpe, 267 So.2d 665 (Fla. 3rd DCA 1972); Calligarich v. Calligarich, 256 So.2d 60 (Fla. 4th DCA 1971). We refer the reader to Florida Dissolution of Marriage (1976) Florida Bar C.L.E., p. 391, et. seq., for a detailed analysis of the cases cited.


text:
    Crezonzo Jerrel MAYS, Appellant, v. STATE of Florida, Appellee.
    No. 75-2171.
    District Court of Appeal of Florida, Fourth District.
    April 7, 1977.
    Rehearing Denied May 23, 1977.
    Richard L. Jorandby, Public Defender, James Eisenberg and George B. Barrs, Asst. Public Defenders, for appellant.

      Robert L. Shevin, Atty. Gen., Tallahassee, and Robert L. Bogen, Asst. Atty. Gen., West Palm Beach, for appellee.
   PER CURIAM.

The following chronology demonstrates that this court does not have jurisdiction of this case:

(a) On September 4, 1975, a jury rendered a verdict finding appellant guilty of robbery.
(b) On October 29, 1975, the judgment and sentence appealed from was recorded.
(c) On November 5, 1975, appellant filed a Motion for New Trial.
(d) On November 13,1975, the trial court denied the Motion for New Trial.
(e) On December 4, 1975, appellant filed his Notice of Appeal.

Fla.R.Crim.P. Rule 3.590(a) provides that a Motion for New Trial be made within 4 days after the rendition of the verdict or within such greater time as the court may allow, not to exceed 15 days. In order for a Motion for New Trial to extend the time for taking an appeal from a judgment and sentence the Motion for New Trial must be timely. 2 Fla.Jur., Appeals § 95, p. 434. However, in this case the Motion for New Trial was not timely and thus it should have been stricken instead of denied; the motion could not have the effect of extending the time for taking an appeal. Ibid. Therefore, this Court is without jurisdiction to entertain this appeal on the merits.

Accordingly, this appeal is

DISMISSED.

CROSS, DOWNEY and LETTS, JJ., concur.


author: PER CURIAM. MAGER, Judge,

text:
    Robert E. SMITH, d/b/a K & S Fuel Service, Appellant, v. CANAVERAL PORT AUTHORITY, a body politic and body corporate under the laws of the State of Florida, and a Florida State Agency or Commission, et al., Appellees.
    No. 76-226.
    District Court of Appeal of Florida, Fourth District.
    April 7, 1977.
    Rehearing Denied May 23, 1977.
    Andrew A. Graham and Charles Holcomb, Moss & Holcomb, Cocoa, for appellant.
    Edward M. Jackson, Cocoa, for appellees.
   PER CURIAM.

Affirmed upon the authority of Panama City v. Seven Seas Restaurant, Inc., 180 So.2d 190 (Fla. 1st DCA 1965), and Miami Beach Airline Service, Inc. v. Crandon, 159 Fla. 504, 32 So.2d 153, 155 (1947).

AFFIRMED.

CROSS, J., and JOANOS, JAMES E., Associate Judge, concur.

MAGER, C. J., dissents, with opinion.

MAGER, Judge,

dissenting:

The action of the appellee is contrary to and inconsistent with those general principles set forth by the Supreme Court in Barrow v. Holland, 125 So.2d 749 (Fla.1960), and accordingly the judgment under review should be reversed.


text:
    Dennis L. O’GRADY et al., Appellants, v. Shirley WHITE et al., Appellees.
    Nos. 76-460, 76-970.
    District Court of Appeal of Florida, Third District.
    April 12, 1977.
    Rehearing Denied May 18, 1977.
    Wicker, Smith, Blomqvist, Davant, McMath, Tutan & O’Hara and Richard A. Sherman and Louis Weinstein, Miami, for appellants.
    George P. Telepas, Fowler, White, Burnett, Hurley, Banick & Knight and Thomas F. Martin, Miami, for appellees.
    Before HENDRY, C. J., and PEARSON and HUBBART, JJ.
   PER CURIAM.

Appellants, defendants below, appeal an order of the lower court which dismissed their third party complaint against appel-lee, Metropolitan Dade County, doing business as Jackson Memorial Hospital, for failure to state a cause of action, i.e., failure to comply with the mediation prerequisite of the Medical Malpractice Reform Act, Section 768.133, Florida Statutes (1975), now renumbered Section 768.44, Florida Statutes (1976 Supp.).

We reverse, based upon the authority of Mount Sinai Hospital of Greater Miami, Inc. v. Mora, 342 So.2d 1063 (Fla. 3d DCA 1977).

In that case we held that where an original cause of action was filed prior to July 1, 1975, the effective date of the above statute, a third party complaint grounded upon medical malpractice and arising from that cause of action, but filed subsequent to the aforementioned operative date of the Act would nevertheless be exempt from the Act’s requirements, i.e., mediation.

Reversed and remanded for further proceedings not inconsistent herewith.


text:
    Emogene HAWKESWORTH, Appellant, v. J. Arthur HAWKESWORTH, Jr., Appellee.
    No. 76-618.
    District Court of Appeal of Florida, Third District.
    April 12, 1977.
    Rehearing Denied May 23, 1977.
    Schwartz, Klein & Steinhardt, Miami, for appellant.
    Horton, Perse & Ginsberg, Miami, for appellee.
    Before BARKDULL, HAVERFIELD and HUBBART, JJ.
   PER CURIAM.

Respondent, Emogene Hawkesworth, appeals those provisions of a final judgment of dissolution of marriage awarding (1) $950 per month to her for a period of five years as rehabilitative alimony; (2) $300 monthly per child for child support; (3) the Ocala property to the petitioner, J. Arthur Hawkesworth, Jr., upon recognizing his special equity therein.

We find merit in Emogene’s contention that she should have been awarded permanent instead of rehabilitative alimony.

When Emogene was first married, she worked for a short time as a clerk-typist. After the first child was born, she stopped working to concentrate upon managing the household and raising the four children born of the marriage. In the meantime her husband, Arthur, had the opportunity of enhancing his professional career as an attorney. After some 24 years, the marriage dissolved leaving Emogene a 46 year old woman who suffers from high blood pressure and a kidney ailment with the task of raising the youngest of the four children (the other three having reached the age of majority at the time of the appeal) and rehabilitating herself within five years.

Rehabilitative alimony necessarily assumes on the part of the person seeking alimony either a previous potential or actual capacity for self-support which has been undeveloped or completely lost during the marriage. Reback v. Reback, 296 So.2d 541 (Fla.3d DCA 1974). This type of alimony is more appropriate where the parties are still young, the marriage is of a relatively short duration and the wife has the ability to develop or redevelop her qualifications for self-support. See Reback, supra, and Lash v. Lash, 307 So.2d 241 (Fla.2d DCA 1975). However, where the dissolution comes after many years there are different circumstances to be considered, particularly when the wife has given up her career upon marriage to manage the home and raise the children. Lash, supra. Taking into account Emogene’s poor health and on the other hand, Arthur’s income, we find the award of only rehabilitative alimony to be erroneous. See Reback, supra; Lash, supra; Patterson v. Patterson, 315 So.2d 104 (Fla.4th DCA 1975); Sommese v. Sommese, 324 So.2d 647 (Fla.1st DCA 1976); McNaughton v. McNaughton, 332 So.2d 673 (Fla.3d DCA 1976).

Having determined that permanent rather than rehabilitative alimony is appropriate, we now must consider the further question of the proper amount of alimony to be awarded.

The guidelines in determining the amount of alimony are the needs of the wife, the financial ability of the husband and the standard of living established by the parties during the duration of their marriage. Royal v. Royal, 263 So.2d 277 (Fla.3d DCA 1972). The heart of an alimony award is and always has been the needs of the demanding spouse for support and the ability of the other spouse to respond. Thigpen v. Thigpen, 277 So.2d 583 (Fla.1st DCA 1973). With respect to this issue, the record establishes the comfortable standard of living enjoyed by the parties during the marriage and Arthur’s ability to make substantial permanent alimony payments. The testimony presented reflected that the cost of household and personal expenses totaled approximately $1,600 per month. We, therefore, conclude that the award of $950 per month rehabilitative alimony is so inadequate as to constitute an abuse of discretion on the part of the trial judge and in place thereof have determined that Emo-gene should be awarded $1,300 per month as and for permanent alimony subject to the right of obtaining relief under changed circumstances. Cf. Klein v. Klein, 122 So.2d 205 (Fla.3d DCA 1960); Massey v. Massey, 205 So.2d 1 (Fla.3d DCA 1967); Schultz v. Schultz, 290 So.2d 146 (Fla.2d DCA 1974); Norton v. Norton, 328 So.2d 484 (Fla.1st DCA 1976). This award we find to be in accord with the accepted principle that a divorced wife is entitled to alimony which will permit her to live in a manner commensurate with that provided by her husband during the coveture, if he has the ability to pay (which Arthur has). See Sommers v. Sommers, 183 So.2d 744 (Fla.3d DCA 1968).

After consideration of Emogene’s remaining points on appeal concerning the amount of child support and the Ocala property, we find no abuse of discretion and, thus, no reversible error.

Accordingly, the cause is remanded to the trial court with directions to enter an award of permanent alimony of $1,300 per month with a retention of jurisdiction to modify the alimony award upon the requisite showing of changed circumstances. In all other respects the judgment is affirmed.

Affirmed in part, reversed in part.

      . This amount plus $300 per month child support for the minor child equals $1,600.


text:
    William SHAPIRO, Appellant, v. The STATE of Florida, Appellee.
    No. 76-541.
    District Court of Appeal of Florida, Third District.
    April 19, 1977.
    Rehearing Denied May 25, 1977.
    Bennett H. Brummer, Public Defender and Julian S. Mack, Asst. Public Defender and Larry Besser, Legal Intern, for appellant.
    Robert L. Shevin, Atty. Gen., and Ira N. Loewy, Asst. Atty. Gen., for appellee.
    Before PEARSON, HAVERFIELD and NATHAN, JJ.
   PER CURIAM.

Defendant-appellant, William Shapiro, was indicted and tried by jury for first degree murder and conspiracy to commit murder. He was convicted on both counts; and sentenced to life imprisonment on the murder count and 15 years on the conspiracy count, both sentences to run concurrently.

For his first point on appeal defendant urges as reversible error the introduction of testimony concerning his alleged prior criminal activities in the participation of the sale of a stolen boat to the victim, Burt DeWitt.

Evidence of other crimes or criminal activities is admissible if found to be relevant for any purpose except that of showing bad character or propensity. Baker v. State, 241 So.2d 683 (Fla.1970); Ashley v. State, 265 So.2d 685 (Fla.1972); Tafero v. State, 223 So.2d 564 (Fla. 3d DCA 1969). Thus, the issue presented for our determination is whether the testimony with regard to the defendant’s participation in the sale of the stolen boat to the victim was relevant for any material purpose. The record discloses that on the eve of Mr. DeWitt’s murder, his wife, concerned about her husband’s whereabouts because he failed to return home, testified that she telephoned the defendant and questioned him as to who sold the boat to her husband. Defendant responded that he did not know Mr. DeWitt owned a boat. This response surprised Mrs. DeWitt because she previously had heard the defendant discussing her husband’s boat. The testimony as to defendant’s participation in the sale of the boat was relevant to show that he had knowledge of the boat’s existence in light of his denial of that fact. Thus, this testimony went to the issue of the defendant’s credibility. In addition, to the knowledge of its existence, the testimony also went to the issues of its proposed use to dispose of the victim’s body, to prove his involvement in the murder, conspiracy and his relationship with the other two participants in the crime. We, therefore, conclude that this point lacks merit.

Defendant secondly argues that the trial court erred in failing to declare a mistrial on the grounds that the cumulative effect of the prosecutorial comments was so prejudicial as to deny defendant a fair trial. We cannot agree.

One of the remarks complained of was made by the prosecutor in his closing argument. Defense counsel on cross-examination of the State’s key witness, Larry Murren, attempted to impeach his testimony by questioning him about a prior inconsistent statement he had allegedly given before James Harris, a court reporter, while in the state attorney’s office. Murren denied making such a statement and the prosecutor in closing argument pointed out to the jury that Harris was never called as a witness and, therefore, Murren’s testimony on behalf of the prosecution remained un-impeached. The failure to call James Harris as a witness who would be helpful to the defense was properly a subject of comment by the prosecutor. Cf. Jenkins v. State, 317 So.2d 90 (Fla. 1st DCA 1975); Allen v. State, 320 So.2d 828 (Fla. 4th DCA 1975). In addition, we find the other prosecutorial remarks presented in this point on appeal were not improper in light of the context in which they were made.

After having reviewed defendant’s remaining points on appeal, we have concluded that no reversible error has been made to appear and, therefore, we affirm the judgment of conviction and sentences.

Affirmed.

      . To place DeWitt’s body in the boat, sail it out to sea and sink it.


text:
    The STATE of Florida, Appellant, v. Pierre Norman LA POINTE, and David A. Sakkinen, Appellees.
    No. 76-749.
    District Court of Appeal of Florida, Third District.
    April 19, 1977.
    Rehearing Denied May 18, 1977.

      Richard E. Gerstein, State Atty., and George Volsky & Alan E. Krueger, Asst. State’s Attys., for appellant.
    Sheldon Yavitz, Miami, for appellees.
    Before HENDRY, C. J., NATHAN, J., and CHARLES CARROLL (Ret.), Associate Judge.
   CHARLES CARROLL (Ret.), Associate Judge.

This is an appeal by the state from an order dismissing an information. We find error and reverse.

The information contained 38 counts. In each of the first 36 counts the appellees, herein referred to as the defendants, were charged with uttering a false instrument, therein described as “A false Super Bowl X Ticket” (with facsimile of the ticket shown) with intent to injure and defraud the National Football League and other persons, in violation of Section 831.02 Florida Statutes 1975. The 37th count charged the defendants with possession of ten or more such described false forged tickets with intent to utter them as true, and thereby to injure and defraud the NFL and others, in violation of Section 831.08. The 38th count charged the defendants with possession of more than ten pieces of false money or coins with intent to utter or pass them as true, in violation of Section 831.15.

Each of the defendants filed a motion to dismiss the information. Therein, .among other things, defendants contended such tickets were not among the instruments or items listed in Section 831.01 of the forgery statute, and therefor that the uttering thereof was not an offense under Section 831.02 of the statute.

Upholding that contention, the trial court entered an order dismissing all of the counts of the information, except the 38th count relating to the coins. The order of dismissal stated as follows:

“It is Ordered and Adjudged that the Defendants’ Motion to Dismiss counts I through XXXVII is hereby granted on the grounds that a ticket of admission to a sporting event is not a ‘receipt for money’ or other writing mentioned in Section 831.01, Florida Statutes, nor is it ‘a note’ or other writing payable to the bearer thereof as required by Section 831.08, Florida Statutes.”

On this appeal therefrom the state argues, and we agree, the trial court was in error in holding that the Super Bowl tickets were not receipts for money or other writings mentioned in Section 831.01 Florida Statutes 1975.

We hold that such tickets are within the forgery statute, as being receipts for money, the false forging or counterfeiting of which with intention to injure or defraud any person would constitute an offense under Section 831.01, and the utterance of which with intent to injure or defraud any person would constitute an offense of Section 831.02, of the statute.

The fraudulent intent which can be said to be involved in the creation of such false tickets and the utterance and passing thereof for value, the actual loss and deception to the parties who buy them and the injury and inconvenience which their utterance and sale inflicts on the NFL and others impels close scrutiny of the statute to determine its inclusion or exclusion of such items.

The items listed in Section 831.01 Florida Statutes 1975 are extensive and comprehensive. They include “any receipt for money, goods or other property”. A valid Super Bowl ticket of the kind involved in this case, when sold and issued to a purchaser thereof, operates as a receipt to the purchaser in return for an expenditure of money, in this instance $20.00. It constitutes the only receipt issued for payment of the money.

Since payment of a charge is required to be made by a spectator to entitle him to enter the stadium or place within which the athletic contest is to be held, a person who seeks to enter as a spectator must present some instrument in the form of a receipt evidencing his payment of the admission charge. In the conduct of such a business or sporting event, it is the ticket which is issued upon payment of the admission charge that stands as the receipt for such payment, and upon the basis of which receipt the holder thereof is recognized as one who has paid the required admission charge and is granted admission. In view of the office, purpose and attributes thereof, we are without difficulty in classifying tickets of the kind involved here as constituting receipts for money, and within the scope of the forgery statute.

The making of false admission tickets with intent to defraud persons has been recognized as forgery thereof in other instances. Benson v. McMahon, 127 U.S. 457, 8 S.Ct. 1240, 32 L.Ed. 234 (1888); Jordan v. Concho Theatres, Inc., 160 S.W.2d 275, 276 (Tex.Civ.App.1941).

For such an item to constitute a receipt for money it is not necessary that it bear any signature, or false signature of the seller, or that the amount paid therefor be stated [although in this instance the tickets showed the amount of their cost]. For example, see Greer v. Los Angeles Athletic Club, 84 Cal.App. 272, 258 P. 155 (1927). And see Crider v. City Supply Co., 16 Ga.App. 377, 85 S.E. 350 (1915).

We hold to be without merit the argument of the appellees that because tickets or evidence of transportation issued by common carriers are listed on the forgery statute it was intended to exclude therefrom all other false or forged tickets, and that therefore the false tickets involved here should not be considered to be receipts for money. On the contrary, the express recognition in the statute that a common carrier ticket can be the subject of forgery thereunder would indicate legislative awareness that such tickets represent a receipt for a charge required of a passenger for transportation, and, being such, were expressly included in the statute to assure that they should not be regarded otherwise.

We also find no merit in the argument of the appellees that since various types of tickets, including those for admission to an athletic contest, are listed in the section of the Fraudulent Practices Act which makes it an offense to offer for sale or sell any such tickets for an amount in excess of $1.00 above the price charged therefor by the original seller [Section 817.-36 Florida Statutes 1975], that fact should be considered as indicating legislative intent that the forging of tickets such as these would not be an offense under the forgery statute because those various types of tickets were not likewise listed in the forgery statute. The two statutes have no direct connection. One deals with forging instruments with intent to defraud. The other deals with improper resale of valid tickets.

For the reasons stated, we hold the defendants’ motions to dismiss the information should have been denied. The order appealed from is reversed, and the cause is remanded for further proceedings.

It is so ordered.


author: PER CURIAM. HUBBART, Judge

text:
    Vito DEVANZO et al., Appellants, v. RESOLUTE INSURANCE COMPANY et al., Appellees.
    No. 76-820.
    District Court of Appeal of Florida, Third District.
    April 19, 1977.
    Rehearing Denied May 25, 1977.
    Louis Vernell, Miami, for appellants.
    George F. Knox, Jr., City Atty. and S. R. Sterbenz, Asst. City Atty., for appellees.
    Before PEARSON, HAVERFIELD and HUBBART, JJ.
   PER CURIAM.

This interlocutory appeal is from an order of the trial court which denied the motion of the fee owners, who were the defendants in the foreclosure action, to vacate a foreclosure sale. The trial judge set the motion for an evidentiary hearing and upon the conclusion thereof entered his order denying the motion on the following grounds:

“The Court finds that the movant has failed to demonstrate that the Clerk’s sale conducted March 22, 1976, should be set aside and not confirmed. It was not made to appear (a) that the conduct of the City of Miami (through its agents and employees), while perhaps not laudatory, had the effect of curtailing or restraining the bidding or free will of the persons attending the sale (because at that point the bidding was confined to Defendant, SANGER, and the City of Miami and Defendant, SANGER, continued to bid), or (b) that in the event a resale was ordered and conducted, it would produce a bid at least equal to the sum bid by ANDREW P. CROUCH.”

The salient facts upon which the defendants relied in support of their motion is that the property foreclosed is adjacent to property owned and designated by the City of Miami for the construction of a convention center. At the foreclosure sale, two persons were authorized to bid for the City. The first was Donal Stewart, the property manager and purchasing representative for the City. Stewart bid on the property until his bid reached $111,000. When this bid was bettered, Stewart announced that this was his last bid and then left the sale. The bidding continued and the eventual successful bidder was Andrew Crouch, whose bid was $140,000. Upon the property being sold to him, Mr. Crouch tendered a City of Miami check for the required deposit and revealed that he also was bidding for the City of Miami.

The question before the trial court was whether the City, by the use of two bidders, was guilty of fraud or collusion so as to render the sale illegal. See Arlt v. Buchanan, 190 So.2d 575 (Fla.1966), and cases cited therein.

Appellant urges that the procedure followed by the City was illegal but we know of no authority which makes it unlawful for a prospective purchaser to authorize two individuals to bid upon property at a foreclosure sale. Appellant has failed to cite authority for this proposition. In view of the trial court’s finding, which was based upon a full evidentiary hearing, that the circumstances set forth did not depress or restrain the bidding and our own conclusion, from a review of the record of the evidentiary hearing, that this finding is supported by the record, we are unable to say that as a matter of law the trial court’s order denying the owner’s motion was error.

Affirmed.

HUBBART, Judge

(concurring).

I find the City of Miami’s actions in this case highly suspicious to say the very least. Mr. Crouch at no time announced that he was a bidder for the City of Miami at the foreclosure sale. He bid solely in his individual capacity and concealed his true identity. Only Mr. Stewart announced that he was a bidder for the City of Miami.

Moreover, Mr. Crouch began his bidding only when Mr. Stewart announced that he had made his last bid at $110,000 and walked out while the sale was in progress. Mr. Crouch remained in his secret capacity even though he and Mr. Stewart had come to the sale together. To all the actual or potential bidders present, it was clear that the City of Miami had terminated its bidding on this property although it is undisputed that the property in question was in the heart of a proposed City of Miami mul-ti-million dollar convention complex. Shortly thereafter, Mr. Crouch became the high bidder and purchased the property. It was only after the sale was completed and the other bidders were presumably long gone when Mr. Crouch tendered a City of Miami check to purchase the property and revealed his true identity.

The City of Miami offered no explanation to the trial court and offers none on appeal to justify the deception practiced by the City on the officials conducting the sale and on the other bidders. In my judgment, these deceptive acts constitute misconduct which was designed to depress the foreclosure sale price by misleading actual or potential bidders into believing that the City was no longer interested in the property and that therefore the property was not that valuable. Such misconduct would be sufficient to set aside the foreclosure sale had it accomplished its intended purpose by restraining competitive bidding at the sale. See: Arlt v. Buchanan, 190 So.2d 575 (Fla.1966); Mitchell v. Mason, 75 Fla. 679, 79 So. 163 (1918); Marsh v. Marsh, 72 Fla. 142, 72 So. 638 (1916).

I have, however, carefully reviewed the record and can find no evidence that the City’s misconduct in any way depressed the price or restrained the bidding. I am satisfied that the property was sold at a fair market value in line with appraisals made by two competent real estate appraisers. The bidding did continue after Mr. Stewart made his exit from the foreclosure sale, and no actual or potential bidder at the sale testified that he or she would have continued the bidding beyond the $140,000 bid had they known Mr. Crouch’s true capacity throughout the sale.

I,therefore, concur in the court’s judgment of affirmance, but would make it perfectly clear that the City of Miami engaged in improper conduct at the foreclosure sale which would have been sufficient to set aside this foreclosure sale if the evidence had established that the misconduct depressed the price or restrained the bidding. Absent such evidence, I am constrained to affirm.


text:
    George P. WATERS and Charles F. Duchein, Appellants, v. KEY COLONY EAST, INC., et al., Appellees.
    No. 76-835.
    District Court of Appeal of Florida, Third District.
    April 19, 1977.
    Rehearing Denied May 23, 1977.
    Horan & Finley, Key West, for appellants.
    A. M. Schwitalla, Miami, for appellees.
    Before PEARSON and BARKDULL, JJ., and CHARLES CARROLL (Ret.), Associate Judge.
   PER CURIAM.

The trial judge refused to return a down payment or deposit to a prospective purchaser under a deposit receipt contract involving real property, and refused to award the seller damages beyond the sum fixed as liquidated damages under the agreement. We affirm.

A party to a contract cannot take advantage of his own wrongdoing to avoid responsibility thereunder. Walker v. Chancey, 96 Fla. 82, 117 So. 705 (1928); Chatlos v. Morse Auto Rentals, Inc., 183 So.2d 854 (Fla. 3rd DCA 1966); Ballard v. El Dorado Tire Company, 512 F.2d 901 (5th Cir. 1975); 7 Fla.Jur., Contracts, §§ 147, 148. A party to a contract, who agrees to accept a sum as liquidated damages, cannot sue for actual damages. Stone, Sand & Gravel Company v. United States, 234 U.S. 270, 34 S.Ct. 865, 58 L.Ed. 1308 (1914); Coca-Cola Bottling Works (Thomas) Inc. v. Hazard Coca-Cola Bottling Works, Inc., 450 S.W.2d 515 (Ct.App.Ky.1970); Ashley v. Lance, 80 Wash.2d 274, 493 P. 2d 1242 (1972); 9A Fla.Jur., Damages, § 115; 22 Am.Jur.2d, Damages, § 235; Cf. Hillsborough County Aviation Authority v. Cone Brothers Contracting Company, 285 So.2d 619 (Fla. 2nd D.C.A.1973).

Therefore, the final judgment here under review be and the same is hereby affirmed.

Affirmed.


text:
    Russell WATERS, Plaintiff, v. E. Wislon PURDY et al., Defendants.
    No. 76-1403.
    District Court of Appeal of Florida, Third District.
    April 19, 1977.
    Rehearing Denied May 23, 1977.
    Orr, Nathan & Williams, Miami, for plaintiff.
    Stuart L. Simon, County Atty., and Alan J. Kan, Asst. County Atty., for defendants.
    Before PEARSON, BARKDULL and HAVERFIELD, JJ.
   PER CURIAM.

The following certified question has been presented for our determination:

DOES SECTION 112.532(2), FLORIDA STATUTES (1975), REQUIRE A LAW ENFORCEMENT AGENCY TO CONVENE A COMPLAINT REVIEW BOARD UPON THE DEMAND OF A LAW ENFORCEMENT OFFICER WHO HAS BEEN THE SUBJECT OF DISCIPLINARY ACTION, WHEN THE OFFICER HAS AVAILED HIMSELF OF THE CIVIL SERVICE APPEALS PROCEDURE, TO REVIEW SAID DISCIPLINARY ACTION; AND IF SO, WHAT, IF ANY, ADJUDICATORY POWERS WOULD SUCH A COMPLAINT REVIEW BOARD POSSESS?

The salient facts are as follows:

On March 7, 1975 Russell Waters, a Dade County Public Safety Department law enforcement officer, was notified of his termination by Sheriff Purdy. On March 10, pursuant to Waters’ request, a hearing examiner was appointed in accordance with Section 2-47, Code of Metropolitan Dade County, to review the termination action, and on April 23 the examiner held a hearing at which Waters personally appeared. Thereafter, the hearing examiner submitted his findings of fact and recommendation that Waters be terminated to the county manager. On August 12 the county manager notified Waters of his confirmation of Waters’ dismissal. In January 1976 Waters demanded the convening of a complaint review board pursuant to Section 112.532(2), Florida Statutes (1975):

“112.532 Law Enforcement officers’ rights
“All law enforcement officers employed by an employing agency shall have the following rights and privileges:
******
“(2) Complaint review boards.- — A complaint review board shall be composed of three (3) members: one (1) member selected by the chief administrator of the agency; one (1) member selected by the aggrieved officer; and a third member to be selected by the other two (2) members. Agencies having more than one hundred (100) law enforcement officers shall utilize a five (5) member board with two (2) members being selected by the administrator, two (2) members being selected by the aggrieved officer, and a fifth member being selected by the other four (4) members. The board members shall be law enforcement officers selected from any state, county, or municipal agency within the county.”

The County refused to comply with Waters’ demand on the ground that the establishment of such a board is discretionary. Thereupon, Waters filed a petition for writ of mandamus against Dade County and its sheriff, E. Wilson Purdy, wherein he sought to compel respondents to convene a complaint review board. Thereafter the trial judge certified the above question.

After scrutinizing Section 112.532, Florida Statutes (1975) in its entirety, we find that subsection (2) set out above must be read in pari materia with subsection (1) which provides in part:

“112.532 Law Enforcement officers’ rights
******
“(1) Rights of law enforcement officers while under investigation. — Whenever a law enforcement officer is under investigation and subject to interrogation by members of his agency for any reason which could lead to disciplinary,, action, demotion, or dismissal, such interrogation shall be conducted under the following conditions . . . ” [Emphasis Supplied]

The record presented to this court demonstrates that Russell Waters was not under investigation, but rather was terminated for violation of the public safety department’s personnel rules which he admitted violating. We, therefore, answer the certified question in the negative as Section 112.532(2), Florida Statutes (1975) is not applicable to the instant situation; and, accordingly, we find Waters is not entitled to the issuance of a writ of mandamus. The cause is remanded to the trial court to dismiss the petition.

So ordered.


author: BOYER, Chief Judge.

text:
    Dale BISHOP, Appellant, v. STATE of Florida, Appellee.
    No. DD-292.
    District Court of Appeal of Florida, First District.
    April 22, 1977.

      Richard W. Ervin, III, Public Defender, and Louis G. Carres, Asst. Public Defender, for appellant.
    Robert L. Shevin, Atty. Gen., and Charles W. Musgrove, Asst. Atty. Gen., for appellee.
   BOYER, Chief Judge.

Appellant was tried and convicted of unlawful imprisonment and robbery and was given a single 30 year sentence. The sole issue raised by appellant meriting discussion concerns the propriety of the single sentence entered by the trial court.

After the jury verdict, the trial court convened a separate sentencing hearing, the transcript of which indicates that appellant was adjudicated guilty of robbery only and sentenced to a 30 year prison sentence. However, the formal order of judgment and sentence contained in the record indicates that the trial court adjudicated the defendant guilty of both unlawful imprisonment and robbery and imposed a single 30 year sentence.

Appellant, referring to the formal order of judgment and sentence and citing, inter alia, Johnson v. State, 338 So.2d 252 (Fla. 1st DCA 1976), claims that a general sentence for two judgments of conviction is improper, and that the cause should be remanded to the trial court for apportioning the sentence between the two convictions. The state generally concurs with that statement of law, but suggests that the sentence imposed in the case sub judice may be proper if it appears that the trial judge applied the single transaction rule. Doubting that the single transaction rule applies to this case, we find it unnecessary to pass upon that issue in the absence of anything in the record tending to indicate that the trial court did, in fact, apply the single transaction rule.

Given the discrepancy between the judgment and sentence and the statements of the trial court found in the transcript of the sentencing hearing, we reverse and remand for the entry of a proper judgment and sentence. At the resentencing proceeding, it is not necessary that the defendant be present.

We have carefully considered the other points raised by appellant in light of the record and applicable law, and have found them to be without merit.

REVERSED AND REMANDED.

RAWLS and McCORD, JJ., concur.


text:
    Robert Jacob HEISTERMAN, Appellant, v. The STATE of Florida, Appellee.
    No. 75-974.
    District Court of Appeal of Florida, Third District.
    April 26, 1977.

      Quinn & Payne, Key West, for appellant.
    Robert L. Shevin, Atty. Gen., and Ira N. Loewy, Asst. Atty. Gen., for appellee.
    Before HENDRY, C. J., and PEARSON and NATHAN, JJ.
   ORDER ON MANDATE

PER CURIAM.

Whereas, the judgment of this court was entered on February 24, 1976 (327 So.2d 839) affirming in part and reversing in part the judgment of the Circuit Court of Dade County, Florida in the above styled cause, and

Whereas, on review of this court’s judgment, by certiorari, the Supreme Court of Florida by its opinion and judgment filed March 17, 1977 (343 So.2d 1272) and mandate now lodged in this court quashed a portion of this court’s judgment,

Now, therefore, It is Ordered that the mandate of this court issued in this cause on March 23, 1976 is withdrawn, the opinion and judgment of this court filed February 24, 1976 insofar as it is in conflict with or fails to conform to the views expressed in the said opinion and judgment of the Supreme Court of Florida aforesaid is withdrawn and vacated, and the said opinion and judgment of the Supreme Court of Florida is herewith made the opinion and judgment of this court. The opinion and judgment of this court, except as withdrawn and vacated aforesaid, is adhered to. Costs allowed shall be taxed in the Circuit Court (Rule 3.16(b), Florida Appellate Rules).