text:
    Regla PEREZ and Hilario Perez, her husband, Appellants, v. METROPOLITAN TRANSIT AUTHORITY and John Casey, Appellees.
    No. 78-53.
    District Court of Appeal of Florida, Third District.
    Nov. 7, 1978.
    Rehearing Denied Dec. 8, 1978.
    Jon W. Burke and Linda Dakis, Miami, for appellants.
    Wicker, Smith, Blomqvist, Davant, McMath, Tutan & O’Hara and Richard A. Sherman, Miami, for appellees.
    Before BARKDULL and KEHOE, JJ., and CHARLES CARROLL (Ret.), Associate Judge.
   PER CURIAM.

Affirmed on the authority of Hurt v. Leatherby Insurance Company, 354 So.2d 918 (Fla.4th DCA 1978); Quarterman v. City of Jacksonville, 347 So.2d 1036 (Fla.1st DCA 1977); Weatherford v. Ryder Truck Rental and Leasing, Inc., 344 So.2d 937 (Fla.3d DCA 1977); Dean v. Bennett M. Lifter, Inc., 336 So.2d 393 (Fla.3d DCA 1976); Hester v. Gatlin, 332 So.2d 660 (Fla.2d DCA 1976); Morison v. General Motors Corporation, 428 F.2d 952 (5th Cir. 1970).


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    PAN AMERICAN BANK OF MIAMI, Appellant, v. Pablo Simon GOLDSZMIDT, Appellee.
    No. 78-72.
    District Court of Appeal of Florida, Third District.
    Nov. 7, 1978.
    Rehearing Denied Dec. 8, 1978.

      William B. Roman, Smathers & Thompson and Shepherd D. Johnston, Miami, for appellant.
    Smith, Mandler, Smith, Werner, Jacobow-itz & Fried, Miami Beach, and Julian R. Benjamin, Miami, for appellee.
    Before BARKDULL and KEHOE, JJ., and CHARLES CARROLL (Ret.), Associate Judge.
   PER CURIAM.

This appeal is by the defendant below from an adverse summary judgment for money damages, and a cost judgment.

Appellee filed an action against the Pan American Bank claiming the bank converted his funds by paying two checks, alleging the checks bore a “forged, unauthorized and wholly insufficient endorsement.” The defendant bank answered denying the allegations, and averring the endorsements were valid under provisions of the Uniform Commercial Code. Both parties moved for summary judgment. That of defendant was denied. Plaintiff’s motion was granted, and summary judgment was entered against the defendant bank for $16,019.25, representing the amounts of the checks with interest, and a cost judgment was entered against the defendant.

One of the checks involved was a cashier’s check purchased from Pan American Bank by the plaintiff, in the amount of $9,300.00. It was made payable to “The Shores Corporation of Miami Escrow Acct. for Unit 401 D Bldg. ‘C’ B/O Pablo Gold-szmidt.” The other check was one drawn by the plaintiff on his account in Pan American Bank, in the amount of $4,650.00 made payable as follows: “The Shores Corporation of Miami Escrow Acct. for Unit 501 D Bldg. ‘C’ B/O Pablo Goldszmidt.” The cashier’s check was endorsed as follows: “For deposit only, The Shores Corp. of Miami 009-726-6.” The endorsement on the other check read: “The Shores Corp. of Miami, For Deposit a/c 009-726-6.” The deposits were made in a special account so numbered, maintained by The Shores Corporation in Inter National Bank (now the Royal Trust Bank of Miami) which guaranteed prior endorsements. In due course the checks were paid by the drawee, Pan American Bank.

In the evidence before the court on the motions for summary judgment it was disclosed that as between the plaintiff and The Shores Corporation the checks represented payments to be held for use incident to purchases of property. Such intention of those parties was not made known to or within the knowledge of the drawee bank, Pan American Bank.

The determinative question is whether the endorsements by the named person to whom the checks were made payable was valid and effective, as contended for by the appellant bank so as to make its payment of the checks proper, or was invalid and ineffective, by reason of the words which were added to the designation of the named payee, so as to render the drawee bank liable by reason of its payment of the checks. We hold the endorsements were valid and effective.

Section 673.117, Florida Statutes (1977), which is a provision of the Uniform Commercial Code, is as follows:

“An instrument made payable to a named person with the addition of words describing him:
(1) As agent or officer of a specified person is payable to his principal but the agent or officer may act as if he were the holder;
(2) As any other fiduciary for a specified person or purpose is payable to the payee and may be negotiated, discharged or enforced by him;
(3) In any other manner is payable to the payee unconditionally and the additional words are without effect on subsequent parties.”

The annotator’s comment on subparagraph (3) of Section 673.117, 19B F.S.A. 81, includes the following:

“. . . In all such cases the person named may negotiate, enforce or discharge the instrument if he is otherwise identified, even though he does not meet the description. Any subsequent party dealing with the instrument may disregard the description and treat the paper as payable unconditionally to the individual, and is fully protected in the absence of independent notice of other facts sufficient to affect his position.”

In West Penn Administration, Inc., v. Union National Bank of Pittsburgh, 233 Pa.Super. 311, 335 A.2d 725 (1975), one of the questions dealt with was similar to that involved here, as shown by the following quotation from the opinion in that case, viz:

“The dispute concerns the words ‘Carpenters Contribution Account’ which are written after the words ‘Pittsburgh National Bank’ on the space provided for naming the payee of the instrument. UNB contends that the account name is mere description under § 3-117 and, therefore, of no significance in identifying the payee. In response, West Penn contends that the account name specified a fund under § 3-110(1)(e). The lower court agreed with UNB, and stated:
‘Under UCC § 3-117(c), supra, once the “named person” to whom a check is made payable has been identified, words describing the payee’s relationship to others or indicating disposition by the payee of the proceeds of a check (e. g., “Carpenters Contribution Account”) are “without effect on subsequent parties,” e. g., endorsees or depositary, collecting or payor banks.’ ” 335 A.2d 730, 731, (emphasis in original)

In West Penn, the appellate court agreed with that above quoted holding of the trial court.

A like conclusion was reached in Bates v. City of New York, 10 UCC Reporting Service 151 (N.Y. Supreme Court, N.Y. County, 1971). There, a check made payable to “Joseph Baglio as administrator of the Est. of Bruce Baglio, Dec’d,” was endorsed “Joseph Baglio” and deposited in his personal account in a certain bank. Baglio then converted the proceeds of the check to his personal use. In holding the bank involved was not liable, the court said:

sfe * * ¡fc * *
“UCC § 3-117 provides that an instrument made payable to a named person with the addition of words describing him ‘as [a] fiduciary for a specified person or purpose is payable to the payee and may be negotiated, discharged or enforced by him.’ It is plain then that the check was properly indorsed. In the absence of any allegations as to specific knowledge by the drawee bank, with whom the payee had no direct dealings, of the payee’s tortious and criminal activities (Estates, Powers and Trusts Law, § 11-1.6), no liability can attach to the drawee bank for honoring a properly indorsed check.” 10 UCC Reporting Service 152.

Appellee’s reliance on Emile v. Bright, 203 So.2d 328 (Fla. 4th DCA 1967), and the decision of the Supreme Court in which certiorari therefrom was discharged, Home Federal Savings and Loan Association v. Emile, 216 So.2d 443 (Fla.1968), is misplaced. There six accounts were opened in Home Federal, styled “Carroll D. Bright, Co-Trustee, John T. Bond, Co-Trustee.” Bright was a lawyer, and so known to Home Federal. Bond was his law partner. Bright was obligated to Home Federal in a certain amount. Home Federal applied funds of said accounts to satisfy Bright’s obligation to it. Emile, and Bond as co-trustee for Emile, brought action against Bright as co-trustee and home Federal for recovery of the funds so applied by Home Federal. Summary judgment was granted in favor of Home Federal. The plaintiffs appealed, and the district court of appeal reversed. In so ruling, the court said:

“When a bank has knowledge that the funds in the account of one of these depositors are trust funds or if it has knowledge of sufficient facts to charge it with notice, it is the uniform rule that it may not seize and retain the funds held in trust in order to offset the debt of a depositor.
* * * * * *
“The question arises as to what constitutes knowledge or notice of the third party’s interest. Where the account describes the depositor as one presumptively acting in an official or fiduciary capacity such a description constitutes notice to the bank that the monies deposited in the account may be the property of third persons and therefore cannot be set off against the depositor’s personal debts.” 203 So.2d 329.

Emile is clearly distinguishable from the instant case. In Emile the depository institution which had or was charged with notice the accounts were trust accounts used money therefrom to offset, an obligation owed to it by the trustee individually.

We hold, as contended for by the defendant bank in the trial court and here, that by virtue of Section 673.117, Florida Statutes (1977), upon indorsement by The Shores Corporation of Miami, the named payee, and deposit of said checks in its checking account in Royal Trust Bank, the action of the drawee Pan American Bank in paying the checks in due course was proper, and did not constitute a conversion of the plaintiff’s funds represented by said checks.

In holding to the contrary the trial court was in error. The motion of the plaintiff for summary judgment should have been denied, and the defendant’s motion for summary judgment should have been granted.

Accordingly, the summary judgment appealed from is reversed, and the cause is remanded with directions to enter summary judgment in favor of the defendant Pan American Bank.

It is so ordered.


text:
    PAN AMERICAN BANK OF MIAMI, Appellant, v. Ruben Ernesto YANCO, Appellee.
    No. 78-73.
    District Court of Appeal of Florida, Third District.
    Nov. 7, 1978.
    Rehearing Denied Dec. 8, 1978.
    William B. Roman, Smathers & Thompson and Shepherd D. Johnston, Miami, for appellant.
    Smith, Mandler, Smith, Werner, Jacobow-itz & Fried, Miami Beach, and Julian R. Benjamin, Miami, for appellee.

      Before BARKDULL and KEHOE, JJ., and CHARLES CARROLL (Ret.), Associate Judge.
   PER CURIAM.

This is an appeal by a drawee bank from an adverse summary judgment for money damages in favor of the purchaser of a cashier’s check paid by appellant. The facts are substantially identical to those involved in Pan American Bank of Miami v. Goldszmidt, 364 So.2d 505 (Fla. 3d DCA, Case No. 78-72), filed this day. That case controls our decision herein.

Appellee purchased from appellant a cashier’s check made payable to “The Shores Corporation of Miami Escrow Acct. for Unit 301D Bldg. “C” B/O Ernesto Yan-co.” The check was endorsed:

“For Deposit Only The Shores Corp. of Miami 009-726-6”

and deposited for collection. The collecting bank sent the check to Pan American, which paid the specified sum. Thereafter, appellee brought suit for conversion against Pan American, contending the endorsement was invalid. Both parties moved for summary judgment. The trial court granted appellee’s motion. This appeal ensued.

The issue, as in Goldszmidt, is whether such endorsement by the named payee is valid and effective so as to make the drawee bank’s payment of the check proper in absence of the drawee bank having knowledge or notice of facts which would make it otherwise. On the authority of Pan American Bank of Miami v. Goldszmidt, supra, and Section 673.117, Florida Statutes (1977), we hold the endorsement was valid and effective. The check properly was paid by the drawee bank. Therefore we reverse the summary judgment rendered by the trial court, and remand the cause with directions to enter summary judgment in favor of Pan American Bank.

Reversed and remanded.


text:
    Gerald CLARK, Appellant, v. Carol CLARK, Appellee.
    No. 78-92.
    District Court of Appeal of Florida, Third District.
    Nov. 7, 1978.
    Rehearing Denied Dec. 8, 1978.
    Gary S. Gostel, Miami, for appellant.
    Abbott & Frumkes and Melvyn B. Frumkes, Miami Beach, for appellee.
    Before HAVERFIELD, C. J., and PEARSON and HENDRY, JJ.
   PER CURIAM.

Affirmed upon authority of Herzog v. Herzog, 346 So.2d 56 (Fla.1977); and Shaw v. Shaw, 334 So.2d 13 (Fla.1976).


text:
    WARREN MANUFACTURING CO., Appellant, v. DENCO MANUFACTURING CO., Appellee.
    No. 78-144.
    District Court of Appeal of Florida, Third District.
    Nov. 7, 1978.
    Rehearing Denied Dec. 6, 1978.

      Richard C. Carter, Miami, for appellant.
    Becker, Poliakoff & Sachs and Jeffrey E. Steitfeld, Fort Lauderdale, Fred N. Kellner, Miami Beach, for appellee.
    Before BARKDULL and HUBBART, JJ., and CHARLES CARROLL (Ret.), Associate Judge.
   PER CURIAM.

Affirmed. Mims Crane Service, Inc. v. Insley Manufacturing Corporation, 226 So.2d 836 (Fla. 2d DCA 1969).


text:
    CITY OF NORTH MIAMI BEACH, a Florida Municipal Corporation, Appellant, v. METROPOLITAN DADE COUNTY, Florida, etc., and Metropolitan Dade County Water and Sewer Board, Appellees.
    No. 78-317.
    District Court of Appeal of Florida, Third District.
    Nov. 7, 1978.
    Rehearing Denied Dec. 6, 1978.
    Dubbin, Schiff, Berkman & Dubbin and John S. Lloyd, Miami, Burton B. Loebl, North Miami Beach, for appellant.
    Stuart Simon, County Atty., and Stanley B. Price, Asst. County Atty., for appellee.
    Before HENDRY and HUBBART, JJ., and CHARLES CARROLL (Ret.), Associate Judge.
   PER CURIAM.

Affirmed. See State v. Dade County, 142 So.2d 79 (Fla.1962); Dade County v. Young Democratic Club of Dade County, 104 So.2d 636 (Fla.1958); State ex rel. City of Miami Beach v. Metropolitan Dade County Water and Sewer Board, 347 So.2d 699 (Fla.3d DCA 1977); and Heinzman et al., v. U.S. Home of Florida, Inc., 317 So.2d 838 (Fla.2d DCA 1975).


author: MILLS, Judge.

text:
    CITIZENS & SOUTHERN FINANCIAL CORPORATION, Appellant, v. Steve HELTON and Sue Helton, d/b/a Furniture Gallery, Appellees.
    No. JJ-469.
    District Court of Appeal of Florida, First District.
    Nov. 8, 1978.

      Joseph C. Rubel of Fisher & Bell, Pensacola, for appellant.
    No appearance for appellees.
   MILLS, Judge.

CASE SUMMARY

This is an appeal from an order quashing an expedited writ of execution on the ground that appellees (Heltons) did not receive notice of the hearing on appellant’s (C. & S.) motion for the expedited execution, thus, they were denied due process. We reverse.

FACTS

C. & S. sued the Heltons on an open account. It obtained a default and summary final judgment against them. Before the ten-day period for the filing of a motion for new trial or a rehearing had passed, C. & S. filed a motion for immediate issuance of the writ of execution alleging that the Heltons were liquidating their inventory which might result in the absence of assets upon which a levy might be made after passage of the ten-day period. The court granted the motion at an ex parte hearing. The Heltons moved the court to quash the execution because they did not receive notice of the hearing. The court granted their motion.

ISSUE

The sole issue here is whether judgment debtors who allow a judgment to be taken against them by default are entitled to notice and hearing on a motion filed by their judgment creditor for the issuance of an immediate writ of execution.

C. & S. contends that notice and hearing was unnecessary because the motion did not assert a new or additional claim.

The Heltons have not favored us with a brief.

DECISION

Florida Rule of Civil Procedure 1.550(a) provides that no execution shall issue until the judgment has been recorded and the ten-day period provided for the service of a motion for new trial or rehearing has run, provided execution may be issued on special order of the court any time after judgment.

Florida Rule of Civil Procedure 1.080(a) states that every pleading and paper filed in an action subsequent to the initial pleading shall be served on each party. However, no service need be made on parties against whom a default has been entered, unless the pleading asserts new or additional claims against them.

C. & S.’s motion for immediate issuance of the writ did not assert a new or additional claim against the Heltons, therefore, the Heltons were not entitled to service of a copy of the motion and notice of hearing on it.

The Heltons were given an opportunity to be heard and to have their day in court. They rejected this right. They were not entitled to notice under the facts of this case and the applicable Florida Rules of Civil Procedure. C. & S. properly applied to the court for an expedited execution and the court found after a hearing that C. & S. adduced sufficient proof to support its motion.

After the entry of default and judgment, the Heltons were on notice that execution would issue and that C. & S. had the right to seek an expedited execution. No further notice was necessary to advance justice.

JUDGMENT

The order appealed is reversed and this case is remanded to the trial court with instructions to reinstate the expedited writ of execution.

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


text:
    James J. TAYLOR, Appellant, v. STATE of Florida, Appellee.
    Nos. 78-467 to 78-469.
    District Court of Appeal of Florida, Second District.
    Nov. 8, 1978.
    Jack 0. Johnson, Public Defender, Bar-tow, and Wayne Chalu, Asst. Public Defender, Tampa, for appellant.
    Robert L. Shevin, Atty. Gen., Tallahassee, and William I. Munsey, Jr., Asst. Atty. Gen., Tampa, for appellee.
   PER CURIAM.

After reviewing the briefs and record on appeal, we find the appellant has failed to demonstrate reversible error; therefore, the judgments appealed are affirmed.

The only point which merits discussion is the discrepancy between the judge’s orally announced sentences and the sentence actually imposed on one of the judgment and sentence forms. At the sentencing hearing the judge adjudicated appellant guilty of the criminal charges and sentenced him to three concurrent seven year prison terms. However, the judgment and sentence form in one of those cases, Case No. 77-2916E, recites that appellant was placed on ten years probation to run consecutive to the other two sentences.

The cause is therefore remanded for the purpose of correcting the judgment and sentence form in Case No. 77-2916E to conform with the sentence pronounced in the sentencing hearing; otherwise, affirmed.

Appellant need not be present for this purpose.

BOARDMAN, Acting C. J., and OTT and DANAHY, JJ., concur.


text:
    Anthony DONALDSON, Appellant, v. STATE of Florida, Appellee.
    No. 78-719.
    District Court of Appeal of Florida, Second District.
    Nov. 8, 1978.
    Jack 0. Johnson, Public Defender, Paul C. Helm, Asst. Public Defender, and David Wm. Boone, Legal Intern, Bartow, for appellant.
    Robert L. Shevin, Atty. Gen., Tallahassee, and Richard G. Pippinger, Asst. Atty. Gen., Tampa, for appellee.
   PER CURIAM.

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

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


text:
    George Alan MORRIS, III, M. D., Petitioner, v. Alice BELDING and Herbert Belding, her husband, Respondents.
    No. 78-1180.
    District Court of Appeal of Florida, Second District.
    Nov. 8, 1978.

      Samuel R. Neel, III, Tampa, for petitioner.
    Linda Koenigsberg of Cohen & Kokus, Miami, for respondents.
   PER CURIAM.

Certiorari denied on the authority of Hubacher v. Landry, 360 So.2d 42 (Fla. 3d DCA 1978), and Ans v. Pagnotti, 362 So.2d 459 (Fla. 4th DCA 1978).

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


author: BOOTH, Judge.

text:
    MILLER ENTERPRISES, INC., Appellant, v. CITY OF SOUTH DAYTONA, Florida, et al., Appellees.
    No. JJ-19.
    District Court of Appeal of Florida, First District.
    Nov. 14, 1978.
    James L. Padgett of Davis, Asbury & Padgett, Crescent City, for appellant.
    John Spencer Robinson and Associates, Daytona Beach, for appellees.
   BOOTH, Judge.

Miller Enterprises, Inc. appeals a final judgment denying its petition for writ of mandamus to compel the City of South Daytona to issue a gasoline pump building permit. The basis for the ruling is a city ordinance of South Daytona, Section 3-7, Alcoholic Beverages, which reads:

No alcoholic or intoxicating beverages, including beer and wine shall be sold for consumption on or off the premises at any location within the City of South Daytona, Florida, where gasoline for motor vehicles is sold.

Appellant sells beer and wine for off-premise consumption in its convenience food store located in South Daytona and seeks to add self-service gas pumps on the premises. The set-back and other requirements for the pumps’ installation were met but the permit was denied based on the above-quoted ordinance.

Appellees suggest that the ordinance is designed to alleviate problems associated with traffic congestion which is peculiar to South Daytona, but offered no proof to support this contention. Appellant offered proof that the sale of gasoline and liquor at one location created no peculiar fire or traffic hazards. Appellant urges that the ordinance is an unreasonable exercise of the City’s police power. We agree and hold this ordinance unconstitutional.

The Supreme Court in City of Miami v. Kayfetz, 92 So.2d 798, 801-802 (Fla.1967), stated the rule as follows:

In considering whether or not the ordinance now before us is reasonable, the test is not whether we think it a wise measure or the best means of approaching a problem, but rather whether it has a rational relation to the public health, morals, safety or general welfare and is reasonably designed to correct a condition adversely affecting the public good. And the test must be applied in view of the character or nature of the condition to be remedied and all circumstances relating thereto.

We have reviewed the record, briefs, and heard arguments in this case, but fail to discern any rational relationship between the ordinance and the public health, morals, safety or welfare of the citizens of South Daytona. The record does not demonstrate any nexus between the ordinance and the traffic problems it purportedly corrects.

Accordingly, the judgment below is REVERSED.

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


text:
    Charles E. FLOYD and Evelyn R. Floyd, his wife, Appellants, v. FIRST EQUITIES LIFE INSURANCE CO., Appellee.
    No. 78-346.
    District Court of Appeal of Florida, Third District.
    Nov. 14, 1978.
    Frates, Floyd, Pearson, Stewart, Richman & Greer and Gary D. Fox, Miami, for appellants.
    Andrews & Lubbers and J. David Lynch, Fort Lauderdale, for appellee.
    Before HENDRY, BARKDULL and KE-HOE, JJ.
   PER CURIAM.

The record before the trial court having neither the certificate of insurance of the original insurer nor its successor, and without the trust agreement referred to in the original subscription contract, the summary judgment entered in favor of the insured under an alleged group policy was erroneous and is reversed.

This cause is remanded for further proceedings consistent herewith, which may include additional motions for summary judgment from either party upon an appropriate record.

Reversed and remanded, with directions.


text:
    John R. SHEILS, M. D., Appellant, v. IMFC PROFESSIONAL SERVICE OF FLORIDA, INC., a Florida Corporation, Appellee.
    No. 78-384.
    District Court of Appeal of Florida, Third District.
    Nov. 14, 1978.
    Rehearing Denied Dec. 8, 1978.
    Carlos Lidsky, Coral Gables, and Leo Friedlich, Miami, for appellant.
    Heiman & Heiman and Judith H. Hayes, Miami, for appellee.
    Before PEARSON and HUBBART, JJ., and CHARLES CARROLL (Ret.), Associate Judge.
   PER CURIAM.

Affirmed. See Shaw v. Shaw, 334 So.2d 13, 16 (Fla.1976); Staros v. Avalon Shores, Inc., 249 So.2d 448, 449 (Fla. 1st DCA 1971).


text:
    In the Interest of F. G., a juvenile, Appellant, v. The STATE of Florida, Appellee.
    No. 78-488.
    District Court of Appeal of Florida, Third District.
    Nov. 14, 1978.
    Bennett H. Brummer, Public Defender, Paul Morris, Asst. Public Defender, and Andrew Rosen, Legal Intern, for appellant.
    Robert L. Shevin, Atty. Gen. and Paul Mendelson, Asst. Atty. Gen., for appellee.
    Before PEARSON, HENDRY and BARKDULL, JJ.
   PER CURIAM.

Affirmed. See C. W. B. v. State, 340 So.2d 962 (Fla.1977); Martin v. State, 323 So.2d 666 (Fla. 3d DCA 1975); Jones v. State, 192 So.2d 285 (Fla. 3d DCA 1966).


text:
    Johnnie LANIER, Petitioner, v. STATE of Florida, Respondent.
    No. 76-472.
    District Court of Appeal of Florida, Fourth District.
    Nov. 15, 1978.
    Ed Leinster, Orlando, for petitioner.
    Robert L. Shevin, Atty. Gen., Tallahassee, and Anthony J. Golden, Asst. Atty. Gen., West Palm Beach, for appellee.
   PER CURIAM.

Petition for Writ of Certiorari DENIED.

ANSTEAD, DAUKSCH and MOORE, JJ., concur.


text:
    Sieffe Joe AWAD, Appellant, v. STATE of Florida, Appellee.
    No. 77-486.
    District Court of Appeal of Florida, Fourth District.
    Nov. 15, 1978.
    Richard L. Jorandby, Public Defender, Tatjana Ostapoff, Asst. Public Defender, and William H. Larkins, Legal Intern, West Palm Beach, for appellant.
    Robert L. Shevin, Atty. Gen., Tallahassee, and Glenn H. Mitchell, Asst. Atty. Gen., West Palm Beach, for appellee.
   PER CURIAM.

The appellant was convicted on two counts of unlawful delivery of two controlled substances, hashish and pethidine, in violation of Section 893.13(l)(a), Florida Statutes (1977). The trial court imposed a general sentence of two and one-half years. Under Dorfman v. State, 351 So.2d 954 (Fla.1977), this was error. Separate sentences for each offense must be imposed. Accordingly, this cause is reversed for resentencing at which the appellant need not be present unless required by the trial court.

ANSTEAD, LETTS and MOORE, JJ., concur.


text:
    Jack T. RICKLING, Appellant, v. Iraida B. RICKLING, Appellee.
    No. 77-1532.
    District Court of Appeal of Florida, Fourth District.
    Nov. 15, 1978.

      James R. Dressier, Cocoa Beach, for appellant.
    Frances Ann Jamieson, Cocoa Beach, for appellee.
   PER CURIAM.

This is an appeal by the husband from an award of rehabilitative alimony. We agree with appellant that there is no basis in the evidence for a rehabilitative award. There is no evidence that Mrs. Rickling’s ability to support herself will be different in five years, the period of time rehabilitative alimony was ordered or that she requires rehabilitation at all. However, it is not entirely clear what purpose the trial court had in mind in making the award, and some additional award to the wife and minor child may be justified, omitting rehabilitative alimony.

Accordingly, the award of rehabilitative alimony is hereby reversed and this cause is remanded for reconsideration by the trial court in accordance with this opinion.

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


text:
    CITY CAB COMPANY OF ORLANDO, INC., Petitioner, v. Robert G. WEBBER and Industrial Relations Commission, Respondents.
    No. 77-1648.
    District Court of Appeal of Florida, Fourth District.
    Nov. 15, 1978.
    Harrison C. Thompson, Jr. and Thomas M. Gonzalez of Shackleford, Farrior, Stall-ings & Evans, Tampa, for petitioner.
    Frank C. Whigham of Stenstrom, Davis & McIntosh, Sanford, for respondent-Web- . ber.
   PER CURIAM.

Certiorari denied.

CROSS, ANSTEAD and MOORE, JJ., concur.


author: MELVIN, Judge.

text:
    Dennis R. NEVELS, Appellant, v. STATE of Florida, Appellee.
    No. FF-79.
    District Court of Appeal of Florida, First District.
    Nov. 15, 1978.

      Michael J. Minerva, Public Defender, for appellant.
    Robert L. Shevin, Atty. Gen., and A. S. Johnston, Asst. Atty. Gen., for appellee.
   MELVIN, Judge.

In obedience to the order entered by the Supreme Court of Florida in the case of Nevels v. State of Florida, 364 So.2d 889, wherein certiorari was granted and the cause remanded for further proceedings in this court consistent with the decision of the Supreme Court of Florida recently rendered in Clark v. State, 363 So.2d 331 (1978), we have reviewed our opinion in the light of Clark v. State, and find the same to be in harmony with Clark.

In Clark v. State, above referred to, the Supreme Court, after discussing various cases dealing with reversible error and the impact thereof when the state attorney makes a comment with reference to the defendant’s silence when advised of his Miranda rights and the obligations of the defendant to make appropriate objections and motions at the time of the occurrence of such improper comments, the court applied the “contemporaneous objection” rule. The court observed that the application of such rule will promote the administration of justice in this state.

The court held:

“In reaching this decision, we hold the following:
1. Reversible error occurs in a jury trial when a prosecutor improperly comments upon or elicits an improper comment from a witness concerning the defendant’s exercise of his right to remain silent. Likewise, reversible error occurs when any state, defense or court witness in a jury trial spontaneously volunteers testimony concerning the defendant’s exercise of his right to remain silent.
2. In a non-jury trial, an improper comment concerning the defendant’s exercise of his right to remain silent is not necessarily reversible error, and it may be disregarded by the trial courts; however, it may serve as grounds for appropriate sanctions against the offending prosecutor or witness.
3. No error occurs when defense counsel comments upon or elicits testimony concerning the defendant’s exercise of his right to remain silent. The same is true if defense counsel were to improperly suggest to a friendly witness that he ‘spontaneously’ comment on the defendant’s exercise of his right to remain silent so as to give him a mistrial. A defendant may not make or invite an improper comment and later seek reversal based on that comment.
4. When there is an improper comment, the defendant, if he is offended, has the obligation to object and to request a mistrial. If the defendant does not want a mistrial, he may waive his objection.. The trial may then proceed, but he may not again raise that objection as a point on appeal. If the defendant fails to object or if, after having objected, he does not ask for a mistrial, his silence will be considered an implied waiver. Cf. Spenkelink v. State, 350 So.2d 85 (Fla.1977), cert. den. 434 U.S. 960, 98 S.Ct. 492, 54 L.Ed.2d 320 (1977). The important consideration is that the defendant retain primary control over the course to be followed in the event of such error. United States v. Dinitz, 424 U.S. 600, 96 S.Ct. 1075, 47 L.Ed.2d 267 (1976).
5. When an objection and motion for mistrial are made, the trial court must determine whether there was an improper comment on the defendant’s exercise of his right to remain silent. If the court finds that there was not, the objection should be overruled. In that event, the objection is preserved, and if the defendant is convicted, it may be raised as a point on appeal.
6. If the defendant, at the time the improper comment is made, does not move for mistrial, he cannot, after trial, in the event he is convicted, object for the first time on appeal. He will not be allowed to await the outcome of the trial with the expectation that, if he is found guilty, his conviction will be automatically reversed.” (emphasis supplied)

We note from the record in this cause that when the comment of the prosecuting attorney complained of was made, the defendant objected to such comment, but he did not follow through with a motion for a mistrial. Instead, the record reveals that the defendant objected to the officer’s testimony that the defendant elected to remain silent and then requested that “this jury be admonished to disregard that.” Thereupon, the record reveals that the court thoroughly admonished the jury to disregard such comment and that such rights were those that “all of us have, you and I”. The court advised the jury not to consider the matter of the defendant’s silence as having any bearing on the determination of his innocence or his guilt. The court asked counsel if such admonition was sufficient and counsel replied, “I also have a motion that I would like to make at a later time”. After the trial proceeded for some time, the defendant’s counsel decided to make his motion for a mistrial based upon the officer’s comment as to the defendant having elected to remain silent when asked if he wished to make a statement.

We hold that when the improper comment was made, the defendant had the obligation at that time not only to object to the comment but to request a mistrial. He did not meet this obligation by asking the court to admonish the jury to disregard the state attorney’s comment. The defendant elected to permit the trial to proceed for some 18 additional pages of testimony before deciding to move for a mistrial. As we read paragraph number 4, above quoted of the holding of the Supreme Court, if the defendant does not object and request a mistrial but rather elects to request the court to admonish the jury and permits the trial to proceed, he has waived his objection.

We noted in our opinion to which certio-rari has been granted that following the defendant having been thoroughly advised of his right to remain silent, the defendant “blurted out” an unsolicited statement to his girlfriend in a nearby office, “I killed the son of a bitch and I would do it again if I had to”. There can be no reasonable doubt that such voluntary statement by the defendant coming after his statement to the officer that he didn’t want to talk to the officer about the alleged incident was a statement the defendant made knowing that he didn’t have to make any statement to anybody if he didn’t want to.

Having reviewed the case, we hold that the defendant elected to lean upon the admonition of the trial judge to the jury to disregard the officer’s comment as to his silence rather than to move for a mistrial, and having so elected his course of action, he could not later, after having permitted the trial to proceed for some undetermined period of time, effectively move for a mistrial because of such improper prosecutorial comment.

We perceive that the opinion and conclusions reached by this court in Nevels v. State are in harmony with the law and the rulings of the Supreme Court as enunciated in Clark v. State, above referred to. Therefore, the judgment and sentence appealed from are again AFFIRMED.

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


text:
    Joseph KOSOWSKY, Appellant, v. Helen KOSOWSKY, Appellee.
    No. KK-328.
    District Court of Appeal of Florida, First District.
    Nov. 15, 1978.

      John C. Winfree of Carroll & Jones, Casselberry, for appellant.
    Judith A. Ginn, Orlando, for appellee.
   PER CURIAM.

Upon considering the briefs, the record, and oral argument, and upon reconsidering appellee’s motion to dismiss for lack of jurisdiction which the Court previously denied, we dismiss this appeal for lack of jurisdiction. Judge Riegle’s order of 18 January 1978 was a final order from which appellant failed to timely appeal.

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


text:
    David MORGAN, Appellant, v. STATE of Florida, Appellee.
    No. 77-2026.
    District Court of Appeal of Florida, Second District.
    Nov. 15, 1978.
    Jack 0. Johnson, Public Defender, William C. McClain, Asst. Public Defender, and Peter R. Mayer, Research Asst., Bartow, for appellant.
    Robert L. Shevin, Atty. Gen., Tallahassee, and Eula Tuttle Mason, Asst. Atty. Gen., Tampa, for appellee.
   PER CURIAM.

After reviewing the briefs and record on appeal, we find appellant has failed to demonstrate any reversible error; therefore, the judgment appealed is affirmed. The judgment and sentence of the court, while indicating the appellant was to receive credit for all time served in jail, does not specifically set forth the period of credit time to be allowed as required by Section 921.161(1), Florida Statutes. Smith v. State, 310 So.2d 770 (Fla. 2d DCA 1975).

Remanded for correction of the sentence; otherwise affirmed. Appellant need not be present for this purpose.

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


text:
    HILLSBOROUGH COUNTY HOSPITAL AND WELFARE BOARD d/b/a Tampa General Hospital, Appellant, v. Maurice KANE, as guardian of the property of Al Smith Graham, an incompetent, Appellee.
    No. 78-319.
    District Court of Appeal of Florida, Second District.
    Nov. 15, 1978.
    Michael N. Brown of Allen, Dell, Frank & Trinkle, Tampa, for appellant.
    John W. Boult of Rood, Hapner, Boult & Dekle, Tampa, for appellee.
   PER CURIAM.

Affirmed. See Raedel v. Watson Clinic Foundation, Inc., 360 So.2d 12 (Fla. 2d DCA 1978).

HOBSON, Acting C. J., and BOARD-MAN and OTT, JJ., concur.


author: GRIMES, Chief Judge.

text:
    Larry Eugene MOSER, Appellant, v. Linda B. DAVIS, Appellee.
    No. 78-378.
    District Court of Appeal of Florida, Second District.
    Nov. 15, 1978.
    David Luther Woodward of the Law Offices of David Luther Woodward, Chartered, Tampa, for appellant.
    No appearance for appellee.
   GRIMES, Chief Judge.

This is an appeal from an order directing that appellant (father) deliver to appellee (mother) the physical custody of two of their children.

In 1968 the mother and father were divorced in North Carolina. The divorce decree awarded, custody of their three children to the father. After the mother remarried, the parties agreed to place the children in the custody of the mother. The North Carolina court, in 1973, issued an order confirming the change of custody. The mother moved to Georgia in 1977 and took the children with her. Later-that year the children ran away in order to be with their father. The father delivered the children to the Division of Youth Services of the Department of Health and Rehabilitative Services, but the Division obtained a court order placing temporary custody in the father pending further proceedings. On December 22, 1977, the father filed in the Circuit Court of Hillsborough County a sworn petition for custody of the children. A hearing on the petition was set for March 20, 1978.

In the meantime, on January 23, 1978, the mother filed a petition for writ of habeas corpus in the Hillsborough County Circuit Court. A writ of habeas corpus was issued and served upon the father the same day. The writ commanded him to bring the children before the court the following afternoon and to show cause why the children should not be released to the custody of the mother. The father appeared with the children as ordered. No testimony was taken at the hearing, but the mother agreed that, if he wished, the oldest boy could stay with his father. Having concluded that he did not have jurisdiction to modify the North Carolina custody decree, the judge ordered the father to deliver the two younger boys to the mother.

The question before us is whether the court had jurisdiction to entertain the father’s petition for change of custody. If not, the North Carolina decree clearly entitles the mother to the children. Resolution of this issue requires a study of the Uniform Child Custody Jurisdiction Act, Sections 61.1302-61.1348, Florida Statutes (1977). The jurisdictional provisions of this act are set forth in Section 61.1308, Florida Statutes (1977), which reads as follows:

61.1308 Jurisdiction.—
(1)A court of this state which is competent to decide child custody matters has jurisdiction to make a child custody determination by initial or modification decree if:
(a) This state:
1. Is the home state of the child at the time of commencement of the proceeding, or
2. Had been the child’s home state within 6 months before commencement of the proceeding and the child is absent from this state because of his removal or retention by a person claiming his custody or for other reasons, and a parent or person acting as parent continues to live in this state;
(b) It is in the best interest of the child that a court of this state assume jurisdiction because:
1. The child and his parents, or the child and at least one contestant, have a significant connection with this state, and
2. There is available in this state substantial evidence concerning the child’s present or future care, protection, training, and personal relationships;
(c) The child is physically present in this state and:
1. The child has been abandoned, or
2. It is necessary in an emergency to protect the child because he has been subjected to or threatened with mistreatment or abuse or is otherwise neglected; or
(d) 1. It appears that no other state would have jurisdiction under prerequisites substantially in accordance with paragraph (a), paragraph (b), or paragraph (c), or another state has declined to exercise jurisdiction on the ground that this state is the more appropriate forum to determine the custody of the child, and
2. It is in the best interest of the child that a court of this state assume jurisdiction.
(2) Except under paragraph (c) or paragraph (d) of subsection (1), physical presence in this state of the child, or of the child and one of the contestants, is not alone sufficient to confer jurisdiction on a court of this state to make a child custody determination.
(3) Physical presence of the child, while desirable, is not a prerequisite for jurisdiction to determine his custody.

In the order in which he concluded that he had no jurisdiction under the Act, the trial judge correctly noted that Florida was not the “home state” of the children as defined in Section 61.1306. Section 61.1308, however, specifies four alternative circumstances under which the court may exercise jurisdiction, and only one of these requires a modification proceeding to be brought in the child’s home state. The children were physically present in the state, and the father’s petition for custody alleged that the children told him they ran away because of numerous threats and acts of violence committed by the mother. Thus, the allegations of the petition, if true, were sufficient to vest jurisdiction .under Section 61.-1308(l)(c).

Admittedly, the petition for custody did not fully comply with the requirements of Section 61.132 pertaining to certain information which must be submitted under oath to the court, but if the father had not been suddenly required to assert his right to custody with only one day’s notice, we assume that he could have furnished the additional information required by the statute.

We hold that the court erred in summarily directing that custody .of the children be given to the mother without first taking testimony in order to determine the existence of jurisdiction to entertain the petition for modification. The order appealed is reversed with directions that the court permit the parties to file the pleadings prescribed by the Uniform Act and take such testimony as may be necessary to determine whether jurisdiction exists to consider the petition for custody. Should there be such jurisdiction, the court can then conduct further proceedings and enter an order on the merits. Should there be no jurisdiction, the father will have to seek relief in some other forum.

SCHEB and DANAHY, JJ., concur.

      . The allegations of the petition may also have been broad enough to invoke jurisdiction under subsections (b) and (d) of § 61.1308(1), but, in view of our position with respect to subsection (c), we need not decide this.


text:
    Fernando GUZMAN, Appellant, v. STATE of Florida, Appellee.
    No. 78-537.
    District Court of Appeal of Florida, Second District.
    Nov. 15, 1978.
    Jack O. Johnson, Public Defender, Bar-tow, and Karal B. Rushing, Asst. Public Defender, Tampa, for appellant.
    Robert L. Shevin, Atty. Gen., Tallahassee, • and C. Marie King, Asst. Atty. Gen., Tampa, for appellee.
   PER CURIAM.

Appellant filed his notice of appeal in this case on March 3, 1978, more than thirty days past January 9, 1978, the date upon which the trial court filed its judgment and sentence. Accordingly we must dismiss this appeal as untimely. Fla.R. App.P. 9.140(b)(2); Kurz v. State, 303 So.2d 431 (Fla. 2d DCA 1974).

We note that following the filing of the judgment and sentence, appellant filed a motion for reconsideration of sentence. However, this fact does not change our decision because a motion for reconsideration of sentence is not one of those motions which tolls the running of the appeal time. See Fla.R.App.P. 9.020(g).

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


text:
    Norman Edward DEAN, Appellant, v. STATE of Florida, Appellee.
    No. 78-728.
    District Court of Appeal of Florida, Second District.
    Nov. 15, 1978.
    Jack 0. Johnson, Public Defender, Bar-tow, and Karal B. Rushing, Asst. Public Defender, Tampa, for appellant.
    Robert L. Shevin, Atty. Gen., Tallahassee, and William I. Munsey, Jr., Asst. Atty. Gen., Tampa, for appellee.
   PER CURIAM.

After reviewing the briefs and record on appeal, we find appellant has failed to demonstrate any reversible error; therefore, the judgment appealed is affirmed. The judgment and sentence of the court, while indicating the appellant was to receive credit for all time served in jail, does not specifically set forth the period of credit time to be allowed as required by Section 921.161(1), Florida Statutes. Smith v. State, 310 So.2d 770 (Fla.2d DCA 1975).

Remanded for correction of the sentence; otherwise affirmed. Appellant need not be present for this purpose.

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


author: OTT, Judge.

text:
    John W. HART, Jr., Appellant, v. Regina S. WEAVER and Richard W. Colvin, Appellees.
    No. 78-874.
    District Court of Appeal of Florida, Second District.
    Nov. 15, 1978.

      Robert A. Vostrejs, Jr. and John H. Pic-cin of Pattillo, MacKay & McKeever, Ocala, for appellant.
    Gary E. Wagner, Inverness, for appel-lee/Weaver.
    Alan E. Fearns, Crystal River, for appel-lee/Colvin.
   OTT, Judge.

The lower court entered an order striking appellant’s pleading and entering a default judgment against him. We reverse.

The appellant represented himself. In its order setting the case for a pretrial conference, the lower court ordered each party to file with the court and furnish to opposing counsel a copy of its pretrial statement at least six days prior to the pretrial conference. The other two parties in the case filed such statements albeit less than six days prior to the pretrial conference. Appellant failed to file any pretrial statement at all. This failure constituted the grounds for striking appellant’s pleadings and entering default judgment against him.

We hold that under the .facts of this case, appellant’s failure to abide by the lower court’s order to timely file a pretrial statement did not warrant such a severe sanction. In so holding, we rely upon this court’s recent decision in Travelers Insurance Co. v. Rodriguez, 357 So.2d 464 (Fla.2d DCA 1978). In that case — which is similar, if not exactly the same — this court held:

[W]e are unwilling to hold that the court cannot strike a party’s pleadings for the wilful and flagrant failure of his attorney to comply with this or any other legitimate order. We do hold that under the facts of this case, defense counsel’s failure to abide by the order for pretrial compliance did not warrant such a severe sanction.

357 So.2d at 465. As pointed out in Rodriguez, “the sanction imposed must be commensurate with the offense.” 357 So.2d at 465 citing Crystal Lake Golf Course, Inc. v. Kalin, 252 So.2d 379 (Fla. 4th DCA 1971). The imposition of the most severe sanctions contemplated by the rules should be reserved for those occasions where the violation is flagrant, persistent or willful or otherwise aggravated. There are many alternatives available to the trial court in securing proper respect for and compliance with its orders; i. e., imposition of costs or attorney’s fees or other demonstrable damages to the opposite party.

Normally, it is the policy of this court to leave discretionary matters in the capable hands of the circuit courts of this state. However, where — as in the present case — an overly severe sanction is ordered, it is our obligation to intercede.

The default judgment is vacated and the case remanded for further proceedings consistent herewith.

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


text:
    The MANATEE CHAPTER OF the IZAAK WALTON LEAGUE OF AMERICA, INCORPORATED, a Florida Nonprofit Corporation, Appellant, v. The MANATEE COUNTY PORT AUTHORITY et al., Appellees.
    No. 78-1588.
    District Court of Appeal of Florida, Second District.
    Nov. 15, 1978.
    Rehearing Denied Dec. 11, 1978.

      Judith Smith Kavanaugh of Smythe & Kavanaugh, Bradenton, and L. Ralph Smith, Jr. of Smith & Moore, P. A., Tallahassee, for appellant.
    Ralph H. Haben, Jr., Palmetto, and B. K. Roberts of Roberts, Miller, Baggett & La-Face, Tallahassee, for appellee, Belcher Oil Co.
    E. N. Fay, Jr., Bradenton, for appellee, The Manatee County Port Authority.
   ON MOTION TO DISMISS OR QUASH APPEAL AS FRIVOLOUS

PER CURIAM.

This is the second appearance of this case in this court wherein the appellant appeals the dismissal of its complaint. The first complaint was filed on April 15, 1977. Thereafter, an amended complaint was filed which was dismissed with leave to amend. An interlocutory appeal was then taken and affirmed by this court per curiam. Our mandate issued on January 31, 1978.

Thereafter a second amended complaint was filed and dismissed with leave to amend. Appellant then filed its third amended complaint which was dismissed with prejudice, and dismissal with prejudice being the subject matter of this appeal.

The actions of the appellee, Manatee County Port Authority, which have been challenged in the courts for over one and one-half years were taken by the Port Authority on August 12, 1976, approximately two years and four months ago.

There comes a time when litigation must cease. The appellant has filed four complaints in this matter, and the trial court held that each one of them failed to state a cause of action against the Port Authority. The dismissal of one of these complaints was affirmed by this court. Manatee Chapter of the Izaak Walton League of America, Inc. v. Manatee County, 354 So.2d 993 (Fla.2d DCA 1978).

We have carefully examined the prior record before this court and the record in the instant appeal and, while we hesitate to quash or dismiss on the grounds of frivolity, it has been held in National Surety Corporation v. Sholtz, 123 Fla. 110, 166 So. 213 (1936):

“While the writ of error is by no means frivolous as is contended, we see no good reason for further prolonging this litigation by retaining the case on our docket when it so clearly appears that the judgment rendered must inevitably be affirmed when the case is finally reached in due course.” 166 So. at 214.

From the record in this case, a meticulous study of the third amended complaint, and the applicable law, it clearly appears that the order appealed must inevitably be affirmed when the case is finally reached in due course.

Therefore, the motion to dismiss or quash as frivolous is denied, but the order appealed is affirmed on the authority of National Surety Corporation v. Sholtz, supra.

GRIMES, C. J„ and HOBSON and SCHEB, JJ., concur.


text:
    Eddie WHEELER, Appellant, v. STATE of Florida, Appellee.
    No. 78-1899.
    District Court of Appeal of Florida, Second District.
    Nov. 15, 1978.
   PER CURIAM.

Affirmed without prejudice to seek belated appellate review in this court pursuant to Baggett v. Wainwright, 229 So.2d 239 (Fla.1969).

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


author: PER CURIAM. DAUKSCH, Judge,

text:
    Charles Kenneth EISEN, Appellant, v. Cyril D. EISEN, Appellee.
    No. 77-1584.
    District Court of Appeal of Florida, Fourth District.
    Nov. 15, 1978.
    Jon S. Rosenberg of Marvin E. Newman & Jon S. Rosenberg, Orlando, for appellant.
    James K. Freeland, P. A., Orlando, for appellee.
   PER CURIAM.

AFFIRMED.

DOWNEY, C. J., and ANSTEAD, J., concur.

DAUKSCH, J., dissents with opinion.

DAUKSCH, Judge,

dissenting:

I respectfully dissent. The award of periodic alimony to the wife is too small and she should have been given a lump sum alimony award of some of the property acquired during the marriage but titled solely in the husband’s name. The husband has the ability to pay more periodic alimony and the ability to transfer a portion of the acquired property and the wife certainly has the need. The marriage lasted 31 years during which the husband was a world traveling military service officer who was accompanied by his wife to most of these far off lands where they lived in good style supported by the government with an income much greater than average. The wife stayed home and tended to the children during the formative years of their two children. The husband evidently enjoys a relatively good physical condition and could work but he chooses to live solely on his retirement income, which, of course, he has a right to do. The wife, on the other hand is not in relatively good health and is minimally employable, unemployed, and largely unskilled. There is evidence the marriage, especially in the later years, was a stormy one but the fault does not lie in one place. Otherwise the wife behaved through the marriage as a wife is expected. The case falls within the guidelines set out in McAllister v. McAllister, 345 So.2d 352 (Fla. 4th DCA 1977) for a more equitable recognition of the wife’s right and the husband’s duty.

Just out is the case of Sullivan v. Sullivan, 363 So.2d 393 (Fla. 2d DCA 1978), the facts of which are strikingly similar to the facts here. The trial court awarded an inadequate sum of money and our sister court increased the alimony to $750.00 per month. While this case may not warrant permanent alimony in that amount I certainly think it calls for more than $350.00 per month.


text:
    The SOCIETY FOR the WELFARE OF ANIMALS, INC., Appellant, v. David B. WALRATH, Appellee.
    No. 76-1372.
    District Court of Appeal of Florida, Third District.
    Nov. 20, 1978.
    Michael A. Lipsky, Miami Beach, Robert L. Shevin, Atty. Gen. and Carol L. Reilly, Asst. Atty. Gen., Tallahassee, for appellant.
    Charles A. Hayes, Homestead, for appel-lee.
    Before PEARSON and BARKDULL, JJ., and CHARLES CARROLL (Ret.), Associate Judge.
   PER CURIAM.

Whereas, the judgment and decision of this, court in this cause was filed March 15, 1977 and reported in 343 So.2d 934, wherein the final decree of the Circuit Court of the Eleventh Judicial Circuit in and for Dade County, Florida was affirmed; and

Whereas, said decision and final decree was declined review by the Supreme Court of Florida by certiorari proceedings, 358 So.2d 134; and

Whereas, in the October Term, 1978, the said cause came on to be heard before the Supreme Court of the United States on petition for writ of certiorari to this Court and response thereto; and

Whereas, the mandate of the Supreme Court of the United States has been filed with this Court, which said mandate was predicated upon the order and judgment of the Supreme Court of the United States, entered October 2, 1978, - U.S. -, 99 S.Ct. 68, 58 L.Ed.2d 102, which said judgment vacated the judgment of this court first above mentioned and remanded the case to this Court for consideration in light of Bates v. State Bar of Arizona, 433 U.S. 350, 97 S.Ct. 2691, 53 L.Ed.2d 810 (1977); accordingly,

The judgment and opinion of this Court filed March 15, 1977 is set aside and held for naught, and the opinion and judgment of the Supreme Court of the United States filed October 2, 1978 is adopted as this Court’s opinion and judgment and the same shall accompany the mandate of this Court to the Circuit Court of the Eleventh Judicial Circuit in and for Dade County, Florida; and, accordingly,

The Circuit Court of the Eleventh Judicial Circuit in and for Dade County, Florida, is directed to dismiss the original complaint at the cost of the plaintiff.


author: HENDRY, Judge.

text:
    W. T. COX, Jr., C. H. Pitts, George Scheidler, I. A. Grodzin and Ben Pekin, Appellants, v. Maston G. O’NEAL, Jr., Appellee.
    No. 77-1695.
    District Court of Appeal of Florida, Third District.
    Nov. 21, 1978.

      Maguire, Voorhis & Wells and Ted R. Brown, Orlando, for appellants.
    Prunty, Ross & Olsen, Harold Peter Bar-kas, Miami, for appellee.
    Before PEARSON and HENDRY, JJ., and CHARLES CARROLL (Ret.), Associate Judge.
   HENDRY, Judge.

Appellants/defendants appeal from an adverse final judgment rendered in favor of appellee/plaintiff in a non-jury proceeding wherein appellee sought the return of certain money allegedly owed to him by appellants pursuant to a real estate trust agreement entered into by the parties which created a joint venture for the development of lakefront land in Arcadia, Florida. The venture resulted in an economic loss prompting the filing of this lawsuit.

At trial, the sole determinative issue was whether, in light of the trust agreement and certain transactions involving the financing of the venture, appellee was to share solely in the profits of the joint venture or be susceptible to the losses incurred by the venture, as well. The final judgment entered by the able trial judge concisely states the pertinent facts of the case, and is set forth as follows:

“1. Plaintiff, O’NEAL, entered into a joint enterprise with Defendants whereby he conveyed his contract rights to purchase a unique parcel of acreage located in Desoto County, Florida for which the other participants agreed that he would receive for such conveyance the return of his deposit for the contract of $25,000 plus a thirty (30%) percent interest in the profits of the trust enterprise. As a further consideration he was to be relieved of any responsibility for the financing or other obligations of the enterprise. The financing obligations and costs of the enterprise were to be the responsibility of the defendant, COX, and the other Defendants, with the exception of WARD, who was to furnish legal services, and PIGG, who was to furnish engineering services, both of whom were to be relieved of any obligations of the enterprise.
“2. The transaction progressed to the point where O’NEAL performed in accordance with the agreement, conveying his entire interest in the real property to the entity described as The Desoto Peace River Trust with WARD acting as the trustee. However, due to the failure of COX and the other Defendants, with the exception of WARD and PIGG, to provide the necessary financing for the project as originally agreed, Plaintiff was owed as of July 5, 1973 the sum of $10,-000 representing the balance of the amount of the deposit on the purchase contract.
“3. Likewise due to the failure of the Defendant, COX, and the other Defendants, with the exception of WARD and PIGG, to secure the permanent financing of the enterprise, it was necessary to obtain interim financing for which it was required that all of the participants execute a promissory note in the principal amount of $120,000. The facts as adduced showed that the note was executed by the Plaintiff, WARD and PITTS as accomodation endorsers, despite the fact that they were ‘carried’ participants in the venture.
“4. On December 12, 1973, O’NEAL advanced the sum of $23,621.92 to the venture for the purpose of paying a portion of and renewing the note for the interim financing, which monies advanced have not been repaid to the Plaintiff by the Defendants liable therefor.
“5. The Defendants contend that the Plaintiff was to share in the profits of the enterprise and since the Plaintiff advanced funds to make a payment on the promissory note, that he is in fact a general partner in the venture and subject to any of the losses and liabilities that result therefrom.
“6. The evidence fails to support this contention of the Defendants, in that the record disclosed that Plaintiff’s position was specially recognized by the Defendants as being immune from responsibility for the financing, development, promotion or other liabilities of the enterprise. Further, there was no evidence that the status of the Plaintiff, O’NEAL, was changed by reason of his voluntary contribution towards the payment of the promissory note for the interim financing.
“7. The evidence showed that the transaction was actually a sale by the Plaintiff, O’NEAL, of his land interest in consideration for the reimbursement to him of the amount of his deposit plus a thirty (30%) percent interest in the enterprise, free of any responsibility for the financing, development or other obligations thereof.”

Based upon the above facts, the trial judge, inter alia, ordered that appellee was entitled to the sum of THIRTY-THREE THOUSAND, SIX HUNDRED TWENTY-ONE DOLLARS and NINETY-TWO CENTS ($33,621.92), representing the sum advanced by appellee for the interim financing plus the amount remaining due and owing appellee for the deposit on the purchase contract.

Appellants’ sole point on appeal questions the correctness of the trial judge’s factual finding that appellee was not “a general partner in the venture and subject to any of the losses and liabilities that result therefrom.” Appellants contend that appellee’s contribution towards payment of the promissory note, (a situation necessitated by appellants’ failure to totally finance the undertaking with borrowed money in accordance with the intent manifested in the trust agreement), was an expression of appellee’s understanding that he would be liable for any losses sustained by the joint venture. Appellee, on the other hand, argues that he signed the note solely as an accommodation, and at the insistance of the lending institution which required that all parties to the joint venture sign the promissory note. In no way, appellee contends, was it his intention to be subject to liability for any losses of the joint venture.

The trial judge, after weighing the testimony, accepted appellee’s position, as evidenced by his findings set forth above. Appellants would have us either reweigh the testimony or reject appellee’s testimony in favor of appellant’s version of the facts. We can do neither. Shaw v. Shaw, 334 So.2d 13 (Fla.1976). In fact, had we the power to reevaluate the evidence we would reach the same conclusion as the trial judge.

Therefore, as there was competent substantial evidence supporting the decision of the trial judge, the final judgment appealed from is hereby affirmed.

Affirmed.


text:
    TOMORROW’S CHOICE, INC., Appellant, v. BASSING CO., INC., Appellee.
    Nos. 77-2210, 73-129.
    District Court of Appeal of Florida, Third District.
    Nov. 21, 1978.

      Smith, Mandler, Smith, Werner, Jacobo-witz & Fried and Steven R. Brownstein, Miami Beach, for appellant.
    J. Victor Africano, Jr., Live Oak, for ap-pellee.
    Before PEARSON and HENDRY, JJ., and CHARLES CARROLL (Ret.), Associate Judge.
   PER CURIAM.

These appeals are by Tomorrow’s Choice, Inc., defendant/counter-plaintiff from a final judgment and an amended final judgment in a mechanic’s lien foreclosure suit. The cause was previously before this court in Tomorrow’s Choice, Inc. v. Bassing Co., Inc., 343 So.2d 70 (Fla. 3d DCA 1977). By direction of this court, the cause was remanded for a new trial on the issue of damages on the counterclaim. At the conclusion of that trial, the judge found that the counter-plaintiff was not entitled to recovery and taxed costs and attorney’s fees against the counter-plaintiff.

On this appeal, three points are presented. The first urges that the trial court erred in not awarding the counter-plaintiff damages on its counterclaim because the evidence conclusively demonstrated that the counter-plaintiff was entitled to recovery. The second point urges that the trial court erred in awarding attorney’s fees pursuant to Section 713.29, Florida Statutes (1973), which is the statute allowing attorney’s fees in an action brought to enforce a mechanic’s lien. The third point urges that it was error for the trial court, in its final judgment, to assess costs against the appellant including the costs of the first appeal where the appellant gained a partial reversal.

We hold that there is no merit in the first point presented inasmuch as an examination of the record supports the finding of the trial court that there was no proper proof of damages by reason of the claimed delay in the completion of a certain portion of the construction contract. The second point, likewise, does not show error under the holdings in Peacock Construction Company v. Gould, 351 So.2d 394 (Fla. 2d DCA 1977); and Foxbilt Electric, Inc. v. Belefant, 280 So.2d 28 (Fla. 4th DCA 1973).

It is our view that the third point does present error. Florida Appellate Rule 3.16 (in effect at the time of the first appeal) provides:

“a. Cost of Record-On-Appeal. Reasonable costs for preparing the record-on-appeal by the clerk of the lower court may be taxed in the lower court after the filing of the mandate.
“b. Where Taxed. All costs including appellate costs shall be taxed in the lower court pursuant to law.”

The appellant, in the first appeal, having procured a reversal of a substantial portion of the judgment, is entitled to appellate costs in that appeal. The trial court has the duty to assess appellate costs in accordance with the ordinary rule that a prevailing party, barring unusual circumstances, is entitled to costs. Cf. the federal position in City of Stuart v. Green, 94 F.2d 942 (5th Cir. 1938); also cf. Masser v. London Operating Co., 106 Fla. 474, 145 So. 72, 79 (1932); but see General Capital Corporation v. Tel. Service Co., 239 So.2d 134 (Fla. 2d DCA 1970). Where the record does not show a reason for the failure to follow the ordinary rule, the rule should be followed. Of course, a successful appellant is not entitled to unnecessarily incurred costs.

Accordingly, the judgment is affirmed except for appellate costs, and the cause is remanded to the trial court for an order assessing appellate costs on the first appeal in accordance with the directions herein.

Affirmed, except for costs.


text:
    Arthur HOLLOMAN, Appellant, v. GENERAL MOTORS CORP., Appellee. Arthur HOLLOMAN, Appellant, v. INDUSTRIAL FIRE & CASUALTY INSURANCE COMPANY, Appellee.
    Nos. 77-2460, 77-2461, 77-2012 and 77-2156.
    District Court of Appeal of Florida, Third District.
    Nov. 21, 1978.
    Rossman & Baumberger and Robert D. Peltz, Miami, for appellant.
    Wicker, Smith, Blomqvist, Davant, McMath, Tutan & O’Hara and Richard A. Sherman, Goodhart & Rosner, Greene & Cooper and Sharon L. Wolfe, Miami, for appellees.
    Before PEARSON and HUBBART, JJ., and CHARLES CARROLL (Ret.), Associate Judge.
   PER CURIAM.

Affirmed. Weatherford v. Ryder Truck Rental and Leasing, Inc., 344 So.2d 937 (Fla. 3d DCA 1977); Dean v. Bennett M. Lifter, Inc., 336 So.2d 393 (Fla. 3d DCA 1976); D. F. S., Inc. v. Beasley Crane Service and Sales, Inc., 251 So.2d 727 (Fla. 2d DCA 1971).


author: PEARSON, Judge.

text:
    Thomas J. FRASER, Appellant, v. Irving SCHOENFELD and Ruth Schoenfeld, his wife, Appellees.
    No. 78-33.
    District Court of Appeal of Florida, Third District.
    Nov. 21, 1978.
    Richard J. Mandell, Miami, for appellant.
    Eli Breger, North Miami Beach, for ap-pellees. .
    Before HAVERFIELD, C. J., and PEARSON and HENDRY, JJ.
   PEARSON, Judge.

The appellant, Thomas J. Fraser, contracted to purchase a fifty year old apartment house on Miami Beach from the ap-pellees, Irving Schoenfeld and Ruth Schoen-feld, his wife. Before closing, Fraser discovered what he believed to be violations of the building and zoning regulations of the City of Miami Beach. He wrote a letter declining to close. Thereafter, upon the statement of the Schoenfelds that they would sue him if he did not close, the purchase and sale were completed and the deed and possession delivered. Shortly after the closing of the sale, the City of Miami Beach building inspectors uncovered substantial and numerous defects in the building. The appellant, Fraser, sued for damages alleging a violation of a covenant in the contract of sale. The covenant reads as follows:

“8. Seller further states that there are no code violations of the City of Miami Beach or the County of Dade.”

Appellees sued upon the purchase money note, which was in default. The trial judge, after a trial before the court without jury, allowed recovery to Fraser for certain incidental repairs necessary to correct plumbing defects but denied recovery for the alleged structural violations.

This appeal urges error by the trial court in failing to allow the purchaser, Fraser, recovery for the substantial defects that existed in the building prior to the sale but which the City of Miami Beach had not inspected until after the sale.

It is important that this is not a case alleging fraud. Not only is fraud absent from the pleadings, but also on appeal it is stipulated that fraud is not involved.

We hold that where, as here, the purchaser has knowledge of claimed violations and, thereafter, closes the deal, he is precluded by the doctrine of merger from a subsequent suit on a covenant contained in the contract of sale. See the rule of law in Volunteer Security Co. v. Dowl, 159 Fla. 767, 33 So.2d 150, 151 (1947); and Stephan v. Brown, 233 So.2d 140, 141 (Fla.2d DCA 1970).

The present case is distinguished from our recent opinion in Steinberg v. Bay Terrace Apartment Hotel, Inc., 363 So.2d 58 (Fla.3d DCA 1978), in that, first of all, the Steinberg case dealt with the dismissal of a complaint. Secondly, and of more importance, is the fact that the Steinberg opinion is based on an exception to the general rule of merger. As stated in Milu, Inc. v. Duke, 204 So.2d 31 (Fla.3d DCA 1967):

“It is a general rule that preliminary agreements and understandings relative to the sale of property usually merge in the deed executed pursuant thereto. 33 Fla.Jur., Vendor and Purchaser, Sec. 95; 10 Fla.Jur., Deeds, Sec. 151. However, there are exceptions to the merger rule. The rule that acceptance of a deed tendered in performance of a contract to convey land merges or extinguishes the covenants and stipulations contained in the contract does not apply to those provisions of the antecedent contract which the parties do not intend to be incorporated in the deed, or which are not necessarily performed or satisfied by the execution and delivery of the stipulated conveyance.”
* * * * * *

In the present case, it is apparent that the nature and wording of paragraph 8 of the preliminary agreement, supra, do not bring that paragraph within the exception relied upon in Steinberg. Unquestionably, the agreement was fully merged into the completed deed.

Appellant’s second point on appeal does not show any prejudicial error in the trial court’s permitting an amendment of the appellees’ pleadings to include the defense of waiver. See Florida Rule of Civil Procedure 1.190(b).

Affirmed.


text:
    Bob NAPP, Appellant, v. Joyce DIEFFENDERFER et al., Appellees.
    No. 78-224.
    District Court of Appeal of Florida, Third District.
    Nov. 21, 1978.

      Charles Gertler, Miami Beach, Milton Gordon, for appellant.
    Stuart L. Simon, County Atty. and Alan J. Kan, Asst. County Atty., Joseph A. Wan-ick, City Atty., Paul S. Berger, Miami Beach, for appellees.
    Before PEARSON, BARKDULL and KEHOE, JJ.
   PER CURIAM.

Appellant Bob Napp, plaintiff below, was a candidate in an election for councilman in the City of Miami Beach. Following the election, he filed a complaint whereby he sought the following relief:

“WHEREFORE, Plaintiffs[] pray that the Court:
“A. Enter a temporary restraining order enjoining Defendants from certifying the Group 4 election results as final and official until a speedy fact hearing can be held.
“B. Enter an order impounding the 706 disqualified ballots and make a determination of whether they were tampered with or properly disqualified.
“C. Enter a declaratory judgment determining and adjudicating the legal status and validity of the new computer-punch card election system.
“D. After a final hearing, enter a permanent injunction against the results of the November 1, 1977 election in the City Council Group 4 race.
“E. Order a special election to be held in Group 4.
“F. Grant Plaintiffs such other relief as the Court deems appropriate and just.”

As grounds for the relief sought, the complaint alleged (1) that the system of voting by punch cards is unconstitutional, (2) that the election system of disqualifying double-punched cards violates the due process under the Florida and United States Constitutions, and (3) that the election results in Group 4 (council election group) may be tainted by violations of Dade County and Florida antielectioneering in polling place laws.

The trial court dismissed the complaint upon a holding that the grounds alleged did not support the relief sought in that the plaintiff political candidate did not allege that the irregularities complained of, if corrected, would cause a result different from that which the election had achieved. This test for determining the validity of a candidate’s challenge of election results has been upheld in many cases in Florida. See McQuagge v. Conrad, 65 So.2d 851 (Fla.1953); Carn v. Moore, 74 Fla. 77, 76 So. 337 (1917); Pickett v. Russell, 42 Fla. 116, 634, 28 So. 764 (1900); Nelson v. Robinson, 301 So.2d 508 (Fla. 2d DCA 1974); and Brake v. Gissendanner, 206 So.2d 10 (Fla. 3d DCA 1968).

The plaintiff, with permission of the court, filed an amended complaint, which was dismissed with prejudice. The amended complaint expanded the allegations of the original complaint but did not change their nature nor allege fraud or show that the alleged errors were sufficient to produce a different result.

On this appeal, it is urged that the court should have considered the complaint as one by a qualified voter contesting the legality of the election. We think that this argument is without effect because both the original and the amended complaints were clearly seeking relief for the candidate, that is, as prayed for in the amended complaint, that the court declare:

“. . . Bob Napp, to be the successful candidate in Group 4; further order and declare his entitlement to the office of commissioner or councilman of the City of Miami Beach as of November 2, 1977 and order that he be sworn in as such.”

An additional point on appeal seeks reversal of a post-judgment order which denied the plaintiff’s motion to examine certain ballots. After having dismissed the cause, the trial court had no further jurisdiction in the matter. See Osborne v. Shell Oil Company, 104 So.2d 670 (Fla. 1st DCA 1958).

Having determined that the court correctly dismissed plaintiff’s original complaint and his amended complaint, the judgment appealed is affirmed.

Affirmed.

      . Two other unsuccessful candidates in the same election were removed as plaintiffs in this cause by an Amendment to Complaint which was filed the same day as the complaint.


text:
    Mario ARTESIANO and Olympia Artesiano, his wife, Appellants, v. CITY OF CORAL GABLES, a Municipal Corporation organized under the laws of the State of Florida, and Continental Casualty Company, Appellees.
    No. 78-294.
    District Court of Appeal of Florida, Third District.
    Nov. 21, 1978.
    Mark J. Feldman, Miami, for appellants.
    Joel R. Teague and Peter G. Stassun, Coral Gables, for appellees.
    Before PEARSON and HUBBART, JJ„ and CHARLES CARROLL (Ret.), Associate Judge.
   PER CURIAM.

The final summary judgment under review is reversed and the cause remanded for further proceedings based on the authority of Woods v. City of Palatka, 63 So.2d 636 (Fla.1953); Schutzer v. City of Miami, 105 So.2d 492, 493 (Fla. 3d DCA 1958); See also Beattie v. City of Coral Gables, 358 So.2d 1131 (Fla. 3d DCA 1978); Bush v. City of Miami, 175 So.2d 820 (Fla. 3d DCA 1965); City of Miami v. Altman, 128 So.2d 416 (Fla. 3d DCA 1961).


text:
    William W. RILEY and Carolyn D. Riley, Appellants, v. DADE COUNTY, a Political Subdivision of the State of Florida, et al., Appellees.
    No. 78-380.
    District Court of Appeal of Florida, Third District.
    Nov. 21, 1978.
    John G. Fletcher, Coral Gables, for appellants.
    Stuart L. Simon, County Atty. and Robert A. Ginsburg, Asst. County Atty., for appellees.
    Before PEARSON and HUBBART, JJ., and CHARLES CARROLL (Ret.), Associate Judge.
   PER CURIAM.

Affirmed. Miles v. Dade County, 260 So.2d 553 (Fla. 3d DCA 1972).


text:
    Norman COHEN, as trustee for himself and others similarly situated, Appellant, v. CITY OF NORTH MIAMI BEACH, Appellee.
    No. 78-428.
    District Court of Appeal of Florida, Third District.
    Nov. 21, 1978.
    Williams, Salomon, Kanner, Damian, Weissler & Brooks and Gary S. Brooks, Miami, for appellant.
    Dubbin, Schiff, Berkman & Dubbin and Evan Langbein, Miami, for appellee.
    Before PEARSON and HUBBART, JJ., and CHARLES CARROLL (Ret.), Associate Judge.
   PER CURIAM.

Affirmed. See Contractors and Builders Ass’n of Pinellas County v. City of Dunedin, 329 So.2d 314 (Fla.1976); City of Dunedin v. Contractors and Builders Ass’n of Pinellas County, 358 So.2d 846 (Fla. 2d DCA 1978); Ivy Steel and Wire Co. v. City of Jacksonville, 401 F.Supp. 701 (M.D.Fla.1975).


text:
    Gerard SCHAINUCK, Appellant, v. Jewel SCHAINUCK, Appellee.
    No. 78-1059.
    District Court of Appeal of Florida, Third District.
    Nov. 21, 1978.
    Monte K. Rassner, South Miami, for appellant.
    Pallot, Stern & Pollack and Adolfo A. Podrecea, Miami, for appellee.
    Before PEARSON and HUBBART, JJ., and CHARLES CARROLL (Ret.), Associate Judge.
   PER CURIAM.

Affirmed. Manganiello v. Manganiello, 359 So.2d 26 (Fla. 3d DCA 1978).


text:
    SEKMAN AVIATION, INC., Petitioner, v. Clarence SKINNER and Carrie Skinner, his wife, Respondents.
    No. 78-1202.
    District Court of Appeal of Florida, Third District.
    Nov. 21, 1978.
    Knight, Peters, Pickle, Niemoeller & Flynn and William J. Flynn, Miami, for petitioner.
    Horton, Perse & Ginsberg, Alldredge & Gray and James H. Gray, Jr., Miami, for respondents.
    Before PEARSON, HENDRY and BARKDULL, JJ.
   PER CURIAM.

Appeal considered as a petition for certio-rari and the petition is denied.


text:
    Janet RENO, as State Attorney for the Eleventh Judicial Circuit, Petitioner, v. Honorable Paul BAKER, Judge of the Circuit Court of the Eleventh Judicial Circuit, Respondent.
    No. 78-1491.
    District Court of Appeal of Florida, Third District.
    Nov. 21, 1978.
    Janet Reno, State’s Atty. and Ira N. Lo-ewy, Asst. State’s Atty., for petitioner.
    Kogen & Kogen and Geoffrey C. Fleck, Miami, for respondent.
    Before PEARSON, BARKDULL and KEHOE, JJ.
   PER CURIAM.

The State seeks to compel the respondent to dissolve a stay of execution and sentences granted by the respondent to two convicted persons.

The defendants were convicted in a non-jury trial and given three-year sentences. On appeal, the convictions were affirmed by this court and certiorari was denied by the Supreme Court of Florida. Soto v. State, 325 So.2d 414 (Fla. 3d DCA 1976), cert, dismissed July 30, 1976, 336 So.2d 1184. The defendants then moved the trial court to mitigate the sentences and the trial court did so.

On the State’s petition for certiorari, this court reviewed the trial court’s order mitigating sentences; quashed same, and reinstated the original three-year sentences on the grounds that the trial court acted after the 60-day time period for such action had elapsed and, thus, lacked jurisdiction over the case. Certiorari was denied by the Supreme Court of Florida. See: State v. Sotto, 348 So.2d 1222 (Fla. 3d DCA 1977); Sotto v. State, 359 So.2d 1219 (Fla.1978). The defendants then moved the trial court for a stay pending review of a petition for habeas corpus by the Federal District Court, and the trial court granted the stay. The State then filed this petition for mandamus to compel the trial judge to comply with this court’s order and execute the sentences.

The State has the right to have the judgment and sentences, which were reinstated by this court, enforced by the trial court, and the trial court has the duty to do so under this court’s mandate. The writ of mandamus will lie to prevent the derogation of this court’s authority. State v. Parks, 99 Fla. 1264, 128 So. 837 (1930); Bishop v. Chillingworth, 114 Fla. 286, 154 So. 254 (1934); Berger v. Leposky, 103 So.2d 628 (Fla.1958). The mandate issued by this court read, in part, as follows:

* * * * * *
“YOU ARE HEREBY COMMANDED that further proceedings be had in accordance with said opinion, the rules adopted by the Supreme Court of Florida and the laws of the State of Florida.”
* * * * * *

A trial judge has no alternative but to obey a mandate of a higher court, unless it is appropriately stayed. The respondent says he has the power to grant a stay of a mandate of this court pursuant to Florida Rules Appellate Procedure 9.310. This reliance is misplaced; a writ of habeas corpus to a Federal court is not a continuance of the original appellate proceeding. He may possess the power to grant a stay if further appellate review is sought in the United States Supreme Court, but not upon an application for habeas corpus which is an original proceeding filed in a Federal Trial court.

The stay issued by the respondent is vacated; set aside with directions to order the incarceration of the original defendants, Anibal Sotto and Joaquin Amor, in accordance with the opinion heretofore issued by this court and reported in State v. Sotto, 348 So.2d 1222 (Fla. 3d DCA 1977).


text:
    Vernal Amtri TURNQUEST, Appellant, v. The STATE of Florida, Appellee.
    No. 78-1880.
    District Court of Appeal of Florida, Third District.
    Nov. 21, 1978.
    Bennett H. Brummer, Public Defender and Elliot H. Scherker, Asst. Public Defender, for appellant.
    Robert L. Shevin, Atty. Gen., for appel-lee.
    Before HENDRY, BARKDULL and KE-HOE, JJ.
   PER CURIAM.

Following review of the motion to vacate, the order denying said motion, and the record filed in support of that ruling, it is ordered that the relief sought herein is denied. See: Fuller v. Wainwright, 238 So.2d 65 (Fla.1970); Saunders v. State, 238 So.2d 680 (Fla.3d DCA 1970); State v. Matera, 266 So.2d 661 (Fla.1972); J. W. v. State, 281 So.2d 48 (Fla.3d DCA 1973); Phillips v. State, 313 So.2d 428 (Fla.3d DCA 1975); Neal v. State, 349 So.2d 844 (Fla.2d DCA 1977).

Affirmed.


author: BERANEK, Judge. ANSTEAD, Judge,

text:
    Mariano YU, Appellant, v. G. C. WEAVER, A. T. Marchese and Marian C. Marchese, Felix E. Turner and Margaret G. Turner, and Wilson Luther, et ux., et al., Appellees.
    No. 77-1685.
    District Court of Appeal of Florida, Fourth District.
    Nov. 22, 1978.

      Carl W. Pearson, Titusville, for appellant.
    William T. McCluan, of Crofton, Holland, Starling, Harris & Severs, P. A., Melbourne, for appellees, A. T. Márchese, Marian C. Márchese, Felix E. Turner and Margaret G. Turner.
   BERANEK, Judge.

Appellant was the defendant below and seeks review of an order denying a motion to vacate a final order and to set aside a master’s deed. Defendant was the owner of a piece of real property which was the subject of the suit in question. The initial proceeding was brought to foreclose a tax lien on the real estate which eventually resulted in the issuance of a master’s deed to the present owner of the property. The initial complaint contained sworn allegations that the plaintiff was unsuccessful in a diligent search and inquiry as to the defendant’s residence, and service on the defendant in the initial proceeding was by publication. A default was entered against the defendant and a final judgment was eventually entered on August 5, 1974.

The defendant’s motion to set aside the proceedings was filed February 25, 1977, or more than two years after the final judgment. The motion was unsworn. Defendant’s contentions in support of the motion were basically twofold. Defendant contended that the original foreclosure was improper because the statutory lien foreclosure process was not followed. Instead, the plaintiff foreclosed the lien in a proceeding analogous to a regular mortgage foreclosure action. Defendant also argued that the court never had jurisdiction over him because the plaintiff’s sworn allegations in regard to diligent search and inquiry were false. We must affirm the order below.

The motion to set aside filed February 25, 1977, was filed more than two years after the final judgment and was not within the one-year limitation provided by Fla.R.Civ.P. 1.540(b). A post judgment petition to set aside a final judgment on the grounds of fraud (intrinsic or extrinsic), misrepresentation, or other misconduct of an adverse party must be brought not more than one year from the final judgment. August v. August, 350 So.2d 794 (Fla. 3d DCA 1977). Furthermore, the motion itself was unsworn and not supported by evidence of any sort at the hearing thereon. In this respect see Callaghan v. Callaghan, 337 So.2d 986 (Fla. 4th DCA 1976). Therefore, there was no basis upon which the court could have found that plaintiff’s affidavit as to diligent search was false. The un-sworn motion without more did not warrant vacating a prior final judgment which on its face appeared proper.

In view of our finding that the motion to vacate was untimely and totally unsupported, we need not decide the question of whether the procedure followed in foreclosing the lien was proper in all respects.

The order appealed from is hereby affirmed.

AFFIRMED.

DOWNEY, C. J., concurs.

ANSTEAD, J., concurs specially with opinion.

ANSTEAD, Judge,

concurring specially:

I concur in the majority opinion and further note that our decision does not preclude the appellant from challenging the validity of the judgment in question in a separate proceeding, either on the grounds that the foreclosure procedure was improper, or that the previous sworn allegations as to service of process constituted a fraud upon the court. See Fla.R.Civ.P. 1.540(b).


author: DOWNEY, Chief Judge.

text:
    Dorothy A. TALBERT, Appellant, v. Dale L. TALBERT, Jr., Appellee.
    No. 77-2125.
    District Court of Appeal of Florida, Fourth District.
    Nov. 22, 1978.
    Errol S. Willes of Willes, Bittan & Willes, Fort Pierce, and G. Kendall Sharp, Vero Beach, for appellant.
    Kenneth E. Padgett, Jr., Vero Beach, for appellee.
   DOWNEY, Chief Judge.

Appellant seeks reversal of an order of the trial court denying appellant’s motion for leave to file an amended complaint.

Suit was initially filed in May. Appellant filed an answer in June, generally denying the allegation of the complaint, and the cause was set for trial in August. Appellant obtained a continuance of that trial date until September. In August appellant obtained another continuance and the cause was reset for trial in October. Eight days before the case was due for trial appellant sought to amend her answer and file a counterclaim so as to plead a special equity in all of appellee’s property and to seek alimony and child support — none of which had been sought by her original pleadings. The trial court declined to allow the amendment and appellant seeks review of that order.

At first blush, it would seem the order appealed from is a routine exercise of the chancellor’s discretion. However, a closer examination of the record discloses that the two continuances were made necessary because appellee’s counsel was not available to attend the proceedings noticed. In addition, the relief sought through the proposed amended pleadings was of such importance to the wife and minor children that justice required the amendments be allowed.

We are fully aware of and agree with the rule which provides that liberality in allowing amendments diminishes as the case progresses. We are also most reluctant to reverse an exercise of discretion such as we have here. However, viewing this case in its totality, we feel the chancellor did abuse his discretion and accordingly we reverse the order appealed from and remand the cause with directions to allow the proposed amendments and for further proceedings.

REVERSED AND REMANDED with directions.

ANSTEAD and LETTS, JJ., concur.

      . The amended pleadings for the first time sought a special equity in property titled in the husband’s name, custody of the minor children, child support and lump sum alimony.


author: MOORE, Judge.

text:
    William I. DELP, Appellant, v. STATE of Florida, Appellee.
    No. 77-2240.
    District Court of Appeal of Florida, Fourth District.
    Nov. 22, 1978.
    Philip G. Butler, Jr., of Foley, Colton & Butler, P. A., West Palm Beach, for appellant.

      Robert L. Shevin, Atty. Gen., Tallahassee, and Joy B. Shearer, Asst. Atty. Gen., West Palm Beach, for appellee.
   MOORE, Judge.

This is an appeal from the denial of a motion to suppress evidence. Upon a plea of nolo contendere, reserving the right to appeal the said denial, adjudication of guilt was withheld and appellant was placed upon probation. The issue before us is whether the police officers acted lawfully in stopping appellant’s vehicle and detaining appellant. We find that the original stop was unlawful and the motion to suppress should have been granted.

In the early morning hours the police received a complaint regarding a noisy fisherman. Upon arrival at the scene of the alleged disturbance a lone police officer found one fisherman who denied creating any noise. This fisherman did, however, provide the officer with information that an orange van had recently appeared across the waterway, parked and remained for approximately ten minutes, then hurriedly left the area with its lights out. The officer searched the suspect area for approximately ten minutes and was unable to locate an orange van. Approximately ten more minutes transpired when the officer saw an orange van proceeding in the opposite direction from his line of travel. Following approximately two car lengths behind the van was the vehicle driven by appellant. Both vehicles were proceeding within the speed limit and were not committing any traffic infractions. The officer made a U-turn and with the assistance of another officer, who was called upon the scene, stopped both the van and appellant’s vehicle. After discovering marijuana located in the van, additional marijuana was discovered in appellant’s vehicle.

The reasons given by the officer for stopping appellant were that his automobile was following the suspect van, the driver “didn’t look as though he fit the car . . ”, his hair was unkempt, the driver looked suspiciously at the officer when the latter made a U-turn, the vehicle had a rental license tag which was bent, it was approximately 4:00 A. M., and the officer was aware of previous burglaries in the area where the van was originally seen. No attempt was made through a radio, computer-check to determine whether or not the vehicle was stolen.

Although the officer may be commended for his. alert police work, we find that his conduct fails to meet the objective justification necessary to develop the founded suspicion required to support the initial detention. The officer received no information from any source concerning the appellant, or his automobile, before detention. In order to justify a temporary detention an officer must have a “founded suspicion” that a crime had been, was being, or was about to be committed. At best, the officer had a bare suspicion that a recent model automobile with a bent license tag, trailing an orange van by two or three car lengths, was somehow involved with the commission of a crime. This is not sufficient. As this court stated in State v. Stevens, 354 So.2d 1244 (Fla. 4th DCA 1978):

“A ‘founded suspicion’ is a suspicion which has some factual foundation in the circumstances observed by the officer, when those circumstances are interpreted in the light of the officer’s knowledge. ‘Mere’ or ‘bare’ suspicion, on the other hand, cannot support detention. Coleman v. State, 333 So.2d 503 (Fla. 4th DCA 1976). Mere suspicion is no better than random selection, sheer guesswork, or hunch, and has no objective justification. . . . ” 354 So.2d at 1247.

Because the officer did not lawfully stop the appellant, all that was seized was the result of an unlawful search and seizure. Bailey v. State, 295 So.2d 133 (Fla. 4th DCA 1974). Therefore, we reverse the trial court’s denial of the motion to suppress and remand this cause for further proceedings consistent with this opinion.

REVERSED and REMANDED.

ANSTEAD and LETTS, JJ., concur.


text:
    Joseph Robert HART, Appellant, v. STATE of Florida, Appellee.
    No. 78-144.
    District Court of Appeal of Florida, Fourth District.
    Nov. 22, 1978.
    Rehearing Denied Jan. 3, 1979.
    W. J. Heffernan, Jr., of Lubet, Heffernan & Rabinowitz, Altamonte Springs, for appellant.
    Robert L. Shevin, Atty. Gen., Tallahassee, and Benedict P. Kuehne and Robert L. Bo-gen, Asst. Attys. Gen., West Palm Beach, for appellee.
   MOORE, Judge.

This is an appeal from a conviction and sentence for a felony which was predicated upon a violation of probation. We affirm.

Appellant was convicted of two separate felonies for which he received consecutive sentences. The first sentence was for a period of five years incarceration, the last three and one-half years of which were to be suspended with the appellant being placed on probation. The second sentence was to five years probation, said sentence to run consecutive to the first sentence. Appellant served the one and one-half years confinement and commenced his probation under the first sentence. During this time appellant entered a guilty plea to a new felony occurring during his probation and this violation of the law was used as support for an affidavit charging a violation of the probation upon which appellant was placed, but which he had not commenced serving. Appellant’s motion to dismiss the charges alleging a violation of probation was denied, whereupon he entered a plea of no contest to the violation, reserving his right to appeal the denial of his motion to dismiss. The court revoked the second probation and sentenced appellant to another period of incarceration. This appeal followed.

Appellant contends that as a matter of law the court could not revoke a sentence of probation which appellant had not commenced serving. This precise question was decided by this court in Martin v. State, 243 So.2d 189 (Fla. 4th DCA 1971) wherein we said:

“The question here is whether a defendant probationer can, with impunity, engage in a criminal course of conduct (or for that matter any course of conduct which is essentially contrary to good behavior) during the interval between the date of an order of probation and some subsequent date when the probationary term is to commence. We think not. To hold otherwise would make a mockery of the very philosophy underlying the concept of probation, namely, that given a second chance to live within the rules of society and the law of the land, one will prove that he will thereafter do so and become a useful member of society. [Citation omitted]. Although the statute empowers the court to revoke probation when a probationer has violated a condition of his probation in a material respect, the power to revoke probation is an inherent power of the trial court, [citation omitted] which may be exercised at any time upon the court determining that the probationer has violated the law. [Citation omitted]. Under the exercise of such inherent power, the court can revoke an order of probation, the term of which has not yet commenced, should the court determine that the defendant probationer has been guilty of misconduct occurring subsequent to the entry of the order of probation.” 243 So.2d at 190-191. (Emphasis ours).

Appellant would distinguish Martin. Although Martin involved a single conviction, there, as here, the acts giving rise to the revocation of probation occurred prior to the commencement of probation. We are persuaded that Martin is controlling and the judgment of conviction and sentence is therefore affirmed.

AFFIRMED.

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


text:
    STATE of Florida, Appellant, v. Robert MONTIGNEY, Appellee.
    No. 78-759.
    District Court of Appeal of Florida, Fourth District.
    Nov. 22, 1978.
    Robert L. Shevin, Atty. Gen., Tallahassee, and Benedict P. Kuehne, Asst. Atty. Gen., West Palm Beach, for appellant.
    Richard L. Jorandby, Public Defender, and Tatjana Ostapoff, Asst. Public Defender, West Palm Beach, for appellee.
   MOORE, Judge.

Appellee was adjudicated guilty of an attempted burglary of a conveyance and placed on probation for a period of five years s with the special condition that he serve one year in the county jail. Shortly after completing his one year in the county jail appellee was alleged to have violated his probation. The trial court granted ap-pellee’s motion to dismiss the amended warrant charging a violation of probation on the basis that the charge for which appellee was on probation was a first degree misdemeanor and, thus, appellee had served the maximum amount of time for such crime. The State appeals the granting of the motion to dismiss.

Attempted burglary is a third degree felony, not a first degree misdemeanor. Gray v. State, 356 So.2d 848 (Fla. 4th DCA 1978); State v. Sudol, 357 So.2d 761 (Fla. 4th DCA 1978); State v. Thompson, 358 So.2d 864 (Fla. 4th DCA 1978). The trial court therefore erred in dismissing the warrant alleging violation of probation on the grounds that attempted burglary of a conveyance was a first degree misdemean- or. This cause is therefore reversed and remanded with instructions to reinstate the affidavit.

REVERSED and REMANDED.

ANSTEAD and LETTS, JJ., concur.