text:
    Joan L. MAISSEN, Appellant, v. James M. MAISSEN, Appellee.
    No. 76-1397.
    District Court of Appeal of Florida, Second District.
    June 29, 1977.
    Rehearing Denied July 26, 1977.

      L. Norman Vaughan-Birch of Kirk, Pinkerton, Sparrow, McClelland & Savary, Sarasota, for appellant.
    C. Eugene Jones of Ginsburg & Byrd, Sarasota, for appellee.
   OTT, Judge.

This case and Lauck v. Maissen, 347 So.2d 795 (Fla.2d DCA 1977) Case No. 76-761, Opinion filed June 29, 1977) arise out of a common set of facts and circumstances. Reference should be made to Lauck v. Maissen for a fuller statement of the facts.

In the final judgment of dissolution of marriage, the lower court ordered child support of $200 a month for the couple’s only child; granted the wife the customary conditional exclusive use and possession of the jointly owned marital home with the requirement that the husband pay one-half of the taxes, mortgage payments and insurance thereon; and granted the wife, as lump sum alimony, all of the husband’s right, title and interest in the Dorado Ranch property. The wife’s father had made a gift of an undivided 55 percent of the ranch real property to the husband and wife as tenants by the entirety. (The wife owned the remaining 45 percent by a previous gift in 1969.) The gift to the husband and wife in 1973 occurred approximately two years prior to the institution of this dissolution action.

Upon the husband’s motion for new trial, rehearing and correction of judgment, the lower court was persuaded that the law would not permit the lump sum alimony award. It thereupon deleted the award. The final judgment was amended in that respect only.

Appellant/wife contends, and we agree, that the award of the appellee/husband’s interest in the ranch was a proper exercise of judicial discretion.

The parties were married for 20 years. The wife had not been employed during the marriage. At the time of dissolution, the wife was 46 years old. She is a college graduate with a liberal arts degree, but has no specific training in an employable skill. Her net worth prior to judgment was in the neighborhood of $290,000. Of this, approximately $70,000 (coming from her parents) is invested in securities, the return from which is about $5,000 annually. The remainder is made up of her 72V2 percent undivided interest in the ranch land which, according to the husband (ranch manager), is productive of little or no profit.

The 54 year old husband admitted to a net worth prior to judgment of at least $175,000 made up largely of assets out of the United States. The husband had transferred substantial sums of money out of the United States prior to and immediately subsequent to the divorce for his own purposes. His 27V2 percent interest in the ranch land was his only substantial asset (or source of income) in this country.

Implicitly, all the parties seem to agree that the maximum potential for the ranch lies in its essential preservation and continuation for the immediate future. '

In establishing the amount of alimony, the primary criteria are the husband’s ability to pay and the needs of the wife. Firestone v. Firestone, 263 So.2d 223, 226 (Fla.1972). In reaching a determination of a husband’s “ability to pay”, both the husband’s income and capital assets should be considered. Firestone, supra.

In Calligarich v. Calligarich, 256 So.2d 60, 61 (Fla. 4th DCA 1971) the court held that “[l]ump sum alimony is justified only where it serves a reasonable purpose, such as rehabilitation, or where the marriage’s duration or the parties’ financial position would make such an award advantageous to both.” See Kennedy v. Kennedy, 303 So.2d 629 (Fla.1974); Cann v. Cann, 334 So.2d 325 (Fla. 1st DCA 1976). In setting lump sum alimony, the wife’s age and em-ployability are factors to be considered. McGarry v. McGarry, 247 So.2d 13 (Fla.2d DCA 1971); Steinhauer v. Steinhauer, 252 So.2d 825 (Fla. 4th DCA 1971).

The appellant/wife is clearly in need of lump sum alimony. It would seem unlikely that the wife could secure high paying employment. While perhaps her employment prospects are not “dismal”, see Patterson v. Patterson, 315 So.2d 104, 105 (Fla. 4th DCA 1975), there are certainly no “abundant opportunities for self-support.” See Kahn v. Kahn, 78 So.2d 367, 368 (Fla.1955). Moreover, even if the husband’s share of the Dorado Ranch property is awarded to her as lump sum alimony she will not be living a “life of veritable ease with no effort and little incentive on her part to apply such talent as she may possess to making her own way.” Kahn, supra. In essence, there is a significant disparity in the present earning ability of the husband and wife. Simply stated, his prospects are much brighter. See Lash v. Lash, 307 So.2d 241 (Fla. 2d DCA 1975); Schultz v. Schultz, 290 So.2d 146 (Fla. 2d DCA 1974).

The fact that the wife’s assets are greater than those of her former husband does not bar an award of lump sum alimony to her. See Gordon v. Gordon, 204 So.2d 734 (Fla. 3d DCA 1967); But cf., Kennedy, supra; Steinhauer, supra. In Gordon, the wife had a net worth of approximately $90,-000 while the husband had a net worth of approximately $60,000. In awarding lump sum alimony the court held that a divorced woman should not be required to “deplete her capital assets to maintain her standard of living.” 204 So.2d at 735.

Steinhauer and Kennedy are distinguishable. In Steinhauer the court found that the wife’s income and assets exceeded those of her husband. The court reasoned that the award of the entire one-half of the husband’s interest in the marital domicile to the wife as lump sum alimony would not be consistent with the parties’ financial situations. Important to the court was the finding that the wife’s contributions were not sufficient to create a special equity for her in the marital dwelling. In contrast, the instant case illustrates a situation in which the wife has been the source of their only major asset in this country — the very property to be awarded as lump sum alimony.

Kennedy is distinguishable in that the wife therein was quite prosperous and most capable of supporting herself. Simply stated, she had no need. The court found the fact that her husband was quite wealthy (much wealthier than she) to be irrelevant.

We are cognizant of the “new concept of the marriage relation implicit in the so-called ‘no fault’ divorce law” as discussed in Thigpen v. Thigpen, 277 So.2d 583, 585 (Fla. 1st DCA 1973):

[Placing] both parties to the marriage on a basis of complete equality as partners sharing equal rights and obligations in the marriage relationship and sharing equal burdens in the event of dissolution. See Cummings v. Cummings, 330 So.2d 134 (Fla.1976).

However, Lash v. Lash, supra, is on point with reference to the troublesome problem of unemployable women in an era of equal employment opportunities for women:

In recent years with the advent of equal employment opportunities for women, many women have been able to acquire higher paying jobs. To that extent there has been less need for the payment of alimony by their former husbands. Yet, it is still the law that where the wife demonstrates the need and the husband has the ability to pay, he is obligated to support her at a standard reasonably commensurate with that established by him during their marriage. 307 So.2d at 243. See Sisson v. Sisson, 336 So.2d 1129 (Fla.1976); Gall v. Gall, 336 So.2d 10 (Fla. 2d DCA 1976).

Moreover, it was held in Schultz v. Schultz, supra, the following:

[T]oday’s woman should be considered capable of earning a living equivalent to her male counterpart. Nevertheless, until the realities catch up with the laudable objective, . . . a divorced wife faced with an everyday concern about the wherewithal to put bread on the table should not be penalized where her former spouse has the ability to help her provide it. 290 So.2d at 147-48.

In Sisson v. Sisson, supra, the First District Court of Appeal reversed an award of $30,000 as lump sum alimony to the wife on the ground that she did not need “rehabilitation” because she had been trained and had worked as a physical therapist. The supreme court quashed the first district court’s decision, holding that the trial court did not abuse its discretion in awarding the $30,000 as lump sum alimony. The court found that the wife was a trained physical therapist who would not need retraining or further education to pursue her chosen field. She had worked as a physical therapist from 1958 until 1970. At the time of dissolution (the parties had been married ten years and had one child) she had been unemployed for three years and was experiencing some difficulty in finding employment because of the then current economic recession.

Unlike the trained physical therapist/wife in Sisson, the appellant herein has no marketable skills. To force her to deplete her capital assets is tantamount to ordering her to gradually decline into strained financial circumstances. The award of the husband’s 27V2 percent interest in the ranch as lump sum alimony — an interest given him by his wife’s father-— would seem to be the fairest resolution of the property interests and support requirement of the parties.

We find no error in the trial court’s denial of the wife’s claim to one-half of the moneys which the husband had appropriated from their joint recount and transferred to his South American ventures nor in the denial of the wife’s claim to permanent alimony.

The order of the trial court deleting the award of lump sum alimony from the final judgment of dissolution is reversed and the original judgment of dissolution is reinstated and affirmed in all particulars.

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


source: Caselaw Access Project

author: McNULTY, Judge.

license: Public Domain

text:
    PINELLAS COUNTY POLICE BENEVOLENT ASSOCIATION et al., Appellants, v. HILLSBOROUGH COUNTY AVIATION AUTHORITY et al., Appellees.
    No. 76-1548.
    District Court of Appeal of Florida, Second District.
    June 29, 1977.

      Melanie C. Jacobson, Panza, O’Donnell & Jacobson, Fort Lauderdale, for appellant, Pinellas County Police Benevolent Ass’n.
    Joseph H. Williams, Troutman, Parrish & Weeks, P. A., Winter Park, for appellant, International Brotherhood of Painters & Allied Trades, District Council 66.
    Austin F. Reed, Staff Atty., for Jack L. McLean, Jr., Acting Gen. Counsel for appellant, Public Employees Relations Commission, Tallahassee.
    Lucius M. Dyal, Jr., and Thomas M. Gonzalez, Shackleford, Farrior, Stallings & Evans, P. A., Tampa, for appellee, Hillsbor-ough County Aviation Authority.
    Peter W. Zinober, Carlton, Fields, Ward, Emmanuel, Smith & Cutler, P. A., and J. Ronald Wigginton, Tampa, for appellee, Hillsborough County Civil Service Bd.
    Steve A. Shackleford, Jr., Tallahassee, and Andrew M. Kramer, Chicago, Ill., of counsel, Seyfarth, Shaw, Fairweather & Geraldson, Chicago, amicus curiae, Department of Administration, State of Florida.
    Zwerdling & Maurer, A. L. Zwerdling, Detroit, Mich., General Counsel for AFSCME, AFL-CIO, Washington, D. C.; Allan Milledge and Earl G. Gallop, Milledge & Hermelee, Miami, amicus curiae, American Federation of State, County and Municipal Employees, AFL-CIO.
   McNULTY, Judge.

This multi-party, multi-faceted declaratory decree action involves an interpretation of the Public Employees Relations Act (PERA) but resolves itself into one narrow legal issue, that being whether a Civil Service Board has discretion under the provisions of Section 447.309(3), Florida Statutes (1975), to amend or not its rules and regulations which are in conflict with a collective bargaining agreement entered into by and between an employer-agency and certain public employees who otherwise would be regulated in the terms and conditions of their employment by the Civil Service Board. The net effect of the trial court’s ruling herein is that a Civil Service Board does have discretion in the premises and we agree.

Section 447.309(3) provides as follows:

“If any provision of a collective bargaining agreement is in conflict with any law, ordinance, rule, or regulation over which the chief executive officer has no amendatory power, the chief executive officer shall submit to the appropriate governmental body having amendatory power a proposed amendment to such law, ordinance, rule, or regulation. Unless and until such amendment is enacted or adopted and becomes effective, the conflicting provision of the collective bargaining agreement shall not become effective.” (Emphasis supplied.)

Factually, in this case, the Hillsborough County Civil Service Board is the “appropriate governmental body” having amendatory power to amend its rules or regulations so as to conform with provisions of any collective bargaining agreement containing terms in conflict with such rules and regulations. The appellant union’s contentions that the aforequoted subsection imposes a mere ministerial duty on the Civil Service Board to amend its rules and regulations, and that such subsection prescribes only the time at which the collective bargaining agreement will become effective, are without merit. Had that subsection prescribed only that the agreement would remain ineffective “until” its provisions were ratified by an appropriate amendment to the rules and regulations of the Civil Service Board, its argument may have some weight. But the language used by the legislature is that “unless and until” the agreement is so ratified its conflicting provisions remain ineffective. Clearly, the Civil Service Board has discretion in view of this language.

A public employee’s constitutional right to bargain collectively is not and cannot be coextensive with an employee’s right to so bargain in the private sector. Certain limitations on the former’s right are necessarily involved. For instance, a wage agreement with a public employer is obviously subject to the necessary public funding which, in turn, necessarily involves the powers, duties and discretion vested in those public officials responsible for the budgetary and fiscal processes inherent in government.

The extent to which other limitations may be imposed on a public employee’s right to bargain collectively without fatally rendering sterile the right itself must be left to a case by case resolution of the problem. We are not here asked to, nor do we, pass upon the constitutionality of the aforequoted subsection 447.309(3) insofar as it may confer so much unguided discretion on a Civil Service Board as effectively to frustrate the constitutional right of public employees; nor in the present posture of the case do we review the exercise of any such discretion with respect to whether it is arbitrary or unreasonable. We simply hold that the statute, as worded, does in the first instance confer discretion on the Civil Service Board to adopt or not amendments to its rules and regulations as may be necessary to conform to whatever collective bargaining agreement is entered into by the particular public employees involved herein (certain security officers employed by ap-pellee Hillsborough County Aviation Authority).

In view whereof, the judgment appealed from should be, and it is hereby, affirmed.

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

      . Sections 447.201, et seq., Florida Statutes (1975).

      . Fla.Const. art. 1, § 6 (1968).

      . See Section 447.309(2), Florida Statutes.


author: SCHEB, Judge.

text:
    Charles T. HENDRICK, Appellant, v. STATE of Florida, Appellee.
    No. 76-1959.
    District Court of Appeal of Florida, Second District.
    June 29, 1977.

      R. B. Crawford, Jr., Bartow, for appellant.
    Robert L. Shevin, Atty. Gen., Tallahassee, and Robert J. Landry, Asst. Atty. Gen., Tampa, for appellee.
   SCHEB, Judge.

On January 22, 1976, the trial court accepted appellant’s plea of guilty to felony possession of marijuana, and placed him on probation for two years. Adjudication of guilt was withheld. Approximately ten months later appellant was arrested and charged with sale of marijuana. On November 30, 1976, an affidavit was filed charging that he had violated condition (4) of the terms of his probation by failing to live and remain at liberty without violating any law, by virtue of his arrest for sale of marijuana.

On December 6, 1976, a hearing on the charge of violating probation was held. Appellant appeared with counsel and while the record does not disclose that he expressly denied the charge, his denial was implicit from the tenor of the brief hearing. Upon being advised that the charge of sale of marijuana was still pending, the trial judge ordered the appellant incarcerated. Immediately the court set appellant’s bail at $5,000. The procedure was termed a “temporary revocation” by. the state attorney and the trial judge.

Appellant argues that his probation has been unlawfully, albeit temporarily, revoked solely on the basis of the advice to the court of the arrest of appellant. However inartful it may be to term the procedure “temporary revocation” we must look to the substance of what occurred. Since appellant did not admit to any violation of his probation he was released on bail as provided by Section 948.06(1), Florida Statutes (1975). We therefore construe the trial judge’s order of December 6, 1976, not as a temporary revocation of probation but rather as admission to bail pending a hearing. Accordingly, as construed herein we affirm the trial judge’s order and remand this cause with directions to the trial court to forthwith conduct a hearing on the question of whether appellant’s probation should be revoked.

Affirmed and remanded with directions.

BOARDMAN, C. J., and OTT, J., concur.


author: PER CURIAM.

text:
    Gerald Joseph HERZOG, Appellant, v. Flora HERZOG, Appellee.
    No. 75-13.
    District Court of Appeal of Florida, Third District.
    June 29, 1977.
    Prunty, Ross, DeLoach & Olsen, Miami, for appellant.
    Turner, Hendrick, Guilford, Goldstein & McDonald and S. Alan Stanley, Coral Gables, for appellee.
    Before HENDRY, C. J., and PEARSON and NATHAN, JJ.
   ORDER ON MANDATE

PER CURIAM.

WHEREAS, the judgment of this court was entered on February 3, 1976 (330 So.2d 116) affirming in part and reversing in part the judgment of the Circuit Court of Dade County, Florida, in the above styled cause; and

WHEREAS, on review of this court’s judgment, by certiorari, the Supreme Court of Florida, by its opinion and judgment filed March 10, 1977 (346 So.2d 56) and mandate now lodged in this court, quashed this court’s judgment with directions to reinstate the judgment of the trial court.

NOW, THEREFORE, It is Ordered that the mandate of this court heretofore issued in this cause on April 22,1976 is withdrawn, the judgment of this court filed February 3, 1976 is vacated, the said opinion and judgment of the Supreme Court of Florida is herewith made the opinion and judgment of this court and the judgment of the circuit court appealed from is reinstated and affirmed. Costs allowed shall be taxed in the circuit court (Rule 3.16(b), Florida Appellate Rules).


author: SMITH, Judge.

text:
    Ruth MITCHELL, Petitioner, v. SCHOOL BOARD OF LEON COUNTY, Respondent.
    No. Y-303.
    District Court of Appeal of Florida, First District.
    June 30, 1977.
    Rehearing Denied July 29, 1977.

      Joseph C. Jacobs and Brian S. Duffy, Ervin, Varn, Jacobs, Odom & Kitchen, Tallahassee, for petitioner.
    C. Graham Carothers and Michael Pearce Dodson, Ausley, McMullen, McGehee, Car-others & Proctor, Tallahassee, for respondent.
   SMITH, Judge.

Ruth Mitchell petitions for review of action by the Leon County School Board adopting, on April 1, 1975, a staff reorganization plan which among other things discontinued several county-level positions in the Pupil Personnel Services Department and consolidated their functions. Among the positions terminated was supervisor of guidance and testing, in which Dr. Mitchell held a continuing contract at $19,435.29 per year. Another aspect of this matter was decided in School Board of Leon County v. Mitchell, 346 So.2d 562 (Fla. 1st DCA 1977). Dr. Mitchell contends the Board’s action was arbitrary and not justified by its ostensible purpose of economy; that the Board’s action constituted rulemaking in which the Board failed to comply with the APA requirement, since repealed, that a copy of proposed rules be filed with the Division of Administrative Hearings, Department of Administration (DOAH), 21 days before the intended action; and that the Board erred in failing to afford Dr. Mitchell, as one whose substantial interests were to be determined, a Section 120.57(1) hearing.

The school code provided:

“(e) Each person to whom a continuing contract has been issued as provided herein shall be entitled to continue in his position or in a similar position in the district at the salary schedule authorized by the school board without the necessity for annual nomination or reappointment until such time as the position is discontinued, the person resigns or his contractual status is changed as prescribed below.
“(g) Any person who has previously earned continuing contract status as a
supervisor or principal in the school district shall be continued in that status until such time as the position is discontinued, the person resigns, or his contractual status is changed by mutual agreement or as prescribed below.” Section 231.36(3), Florida Statutes (Supp.1974) (emphasis added).

There has been no showing that the Board acted arbitrarily, with impermissible motives, or otherwise in violation of the school code or Dr. Mitchell’s contract by discontinuing the county position of supervisor of guidance and testing as part of reorganization for economy. While the Board could not lawfully discontinue that position merely to evade Dr. Mitchell’s tenured claim on it, and the stated economic justification for the action would be suspect if the position’s former functions were assigned without others to a new position or divided between two new positions carrying more aggregated salary, those conditions do not appear here. The former functions of the supervisor of guidance and testing were divided and assigned to the new positions of coordinator of career guidance and counseling and coordinator of research and evaluation, which also absorbed functions of other discontinued positions. The reorganization was part of the Board’s response to an anticipated reduction of revenue during the school year 1975-76 by three to five million dollars. While Dr. Mitchell’s counsel asserted before the Board that “we feel [the reorganization plan] to be a subterfuge,” no particulars were stated or substantiated.

Assuming without deciding that the entire reorganization plan, including elements not here mentioned, was of such general and pervasive applicability in the system’s organization to constitute a rule, the Board’s failure to file a copy of the proposed reorganization plan with DOAH, as then required by the APA, was neither fatal to the action nor prejudicial to Dr. Mitchell. Rule challenge proceedings were not self-starting under former Section 120.-54(3), nor are they now. Sections 120.54(4), .56, Florida Statutes (Supp.1976). Dr. Mitchell did not attempt to challenge the intended action by proceedings under the statute relied on, and the Board’s failure to prefile with DOAH did not impair “the fairness of the proceedings or the correctness of the action.” It is not shown the Board acted without adequate notice to affected persons, Section 120.54(1). Dr. Mitchell was present and her protest was heard when the Board acted.

Dr. Mitchell made no request to the Board for a Section 120.57(1) trial of factual issues. Neither did she offer to demonstrate factual issues such as the superintendent’s ulterior purpose to replace a supervisor by another with the same function at a lesser salary, or his desire to rid the system of one whose political or union activity he found offensive, to cite two hypothetical examples. Even now, urging that we exercise a reviewing court’s prerogative to order a hearing when “the validity of the action depends upon disputed facts,” Dr. Mitchell has made no substantial showing that there are material disputed facts. One whose substantial interests are to be affected by agency action, and who conceives a Section 120.57(1) hearing is necessary to protect those interests, must in rule-making proceedings “affirmatively [demonstrate] to the agency that the proceeding does not provide adequate opportunity to protect those interests,” make at least a colorable showing that “the proceeding involves a disputed issue of material fact” and, when agency rules so provide, request a hearing. Section 120.57(l)(b)l, Florida Statutes (Supp.1976).

The prayer of the petition for review and accompanying motion for a “fact-finding proceeding” are DENIED.

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

      . Sec. 120.52(14), Fla.Stat. (Supp.1976), in part defines a “rule” as “each agency statement of general applicability that implements, interprets, or prescribes law or policy or describes the organization of an agency . . .

      . Sec. 120.54(3), Fla.Stat. (Supp.1974) provided: “The adopting agency shall file a copy of each rule it proposes to adopt with [DOAH] at least 21 days prior to its intended action. If the proposed rule contains any provision not relating exclusively to organization, practice, or procedure, then any substantially affected person may seek an administrative determination of the validity of the proposed rule on the following grounds: that the proposed rule is an invalid exercise of validly delegated legislative authority; or, that the proposed rule is an exercise of invalidly delegated legislative authority. The request seeking a determination under this subsection shall be in writing and must be received within 14 days after the date of publication of the notice.” This provision was repealed June 26, 1975. Ch. 75-191, Laws of Fla. (1975), § 120.54, Fla.Stat. (Supp.1976).

      . Dr. Mitchell’s contract provided it “shall not operate to prevent discontinuance of a position as provided by law.” The Board’s power to discontinue positions derives from §§ 230.03(2), 230.22, 230.23(4), (5) and 230.35, Fla.Stat. (1975).

      . “The court shall- remand the case for further agency action if it finds that either the fairness of the proceedings or the correctness of the action may have been impaired by a material error in procedure or a failure to follow prescribed procedure.” Sec. 120.68(8), Fla.Stat. (Supp.1976).

      . Sec. 120.68(6), Fla.Stat. (Supp.1976).

      . Secs. 120.57, Fla.Stat. (Supp.1974), 120.-54(16), Fla.Stat. (Supp.1976).

      . Sec. 120.57 (Supp.1974, 1976).

      . This record does not reveal what, if any, Board rules of procedure may have required an affirmative request for a formal hearing. The Board rules are not otherwise readily available to us, because they need not be published in the Florida Administrative Code. Section 120.-55(1 )(b) provides that “Rules general in form but applicable to only one school district . . . shall not be published in the Florida Administrative Code.” The model rules adopted by the Department of Administration require a request for a Section 120.57(1) hearing. Fla.Admin.Code Rule 28-5.15.


text:
    JOHNSON SERVICE COMPANY, a Wisconsin Corporation, and Warren G. Hahn, an Individual, Appellants, v. FLORIDA ELECTRICAL CONTRACTORS LICENSING BOARD, Appellee.
    No. BB-273.
    District Court of Appeal of Florida, First District.
    June 30, 1977.
    Rehearing Denied July 29, 1977.
    Stanley Bruce Powell, Douglass & Powell, Tallahassee, for appellants.
    Robert L. Shevin, Atty. Gen., and Carol L. Reilly, Asst. Atty. Gen., for appellee.
   PER CURIAM.

We affirm the trial court’s judgment dismissing plaintiffs-appellants’ second amended complaint and their action for injunction to require defendant-appellee licensing board to administer to plaintiffs the examination for electrical contractors. Chapter 468, Florida Statutes (1973).

Under the law existing when the controversy arose, an injunctive remedy in licensing disputes was available only when the agency utterly failed to examine into the applicant’s qualifications or otherwise acted arbitrarily and capriciously. Bay National Bank & Trust Company v. Dickinson, 229 So.2d 302 (Fla. 1st DCA 1969); and Webster Groves Trust Company v. Saxon, 370 F.2d 381 (8th Cir. 1966). Under present law, an administrative remedy is available, Chapter 120, Florida Statutes (Supp.1976), and the judicial remedy ordinarily is not. School Board of Leon County v. Mitchell, First DCA Case No. EE-64, opinion filed May 4, 1977, 346 So.2d 562, not yet reported; and State ex rel. Dept. of General Services v. Willis, 344 So.2d 580 (Fla. 1st DCA 1977).

Plaintiffs’ second amended complaint contains the bald allegation that the board acted arbitrarily in denying them admission to the examination and that plaintiffs were qualified, but it does not set forth allegations of the claimed arbitrariness sufficiently to invoke circuit court jurisdiction under the Dickinson, supra, rule.

AFFIRMED.

RAWLS, Acting C. J., and McCORD and SMITH, JJ., concur.


author: McCORD, Justice. RAWLS, Acting Chief Judge

text:
    Andrew ROBINSON, James Crenshaw, and Booker Davis, Appellant, v. STATE of Florida, Appellee.
    No. CC-418.
    District Court of Appeal of Florida, First District.
    June 30, 1977.
    Rehearings Denied July 26, 1977.
    Richard W. Ervin, III, Public Defender, and Theodore E. Mack, Asst. Public Defender, for appellant.
    Robert L. Shevin, Atty. Gen., and A. S. Johnston, Asst. Atty. Gen., for appellee.
   McCORD, Justice.

Appellants and a co-defendant Ronnie McDougal, were convicted after jury trial of burglary and grand larceny. Appellants appeal the judgments and sentences contending that the trial court erred in denying their motion for directed verdict of acquittal made at the close of the state’s case. We find such was not error and affirm.

No question has been raised as to the sufficiency of the total evidence, and we are concerned only with whether or not the state presented a prima facie case in its case in chief. The state’s evidence shows the following: The photography studio of one Lester Humphrey was broken into between the hours of 7:40 and 8:40 p. m. on January 21, 1976, while he was away on errands. He had locked the business and upon his return at approximately 8:40 p. m. he discovered that the lock had been jimmied and camera equipment valued at approximately $2,200 and blank checks had been stolen. Appellant Crenshaw was identified as having been a temporary worker at the studio in November of 1975 and during that period and for a time subsequently he had a key to the business. The key, however, had been returned prior to the burglary.

Shortly before 9:00 p. m., police officers received a radio dispatch concerning a possible robbery in progress and were directed to a liquor store for investigation. Upon arrival, appellant Davis and co-defendant McDougal were inside the store and appellants Robinson and Crenshaw were seated in the car outside. After Davis and McDougal re-entered the car and drove away, the officers followed and stopped the automobile. As appellants’ car stopped, the officers observed appellant Crenshaw, who was seated in the right front passenger side, reach under the seat. One of the stolen checks was later found under the right front seat where Crenshaw was observed reaching. A number of attached checks were observed by an officer in plain view lying between the feet of appellant Robinson, and one of the checks bore the fingerprint of co-defendant McDougal. All of the checks were identified as stolen from the studio during the burglary in question. There was evidence that appellants and co-defendant McDougal were together at the time Humphrey’s studio was burglarized. That, taken with the evidence that the stolen checks were within the automobile and some of them were in plain view, supports a strong inference that appellants were jointly in possession of the stolen checks because they stole them. The evidence supports the conclusion that appellants knew of the presence of the checks and had the ability to exercise dominion over them. This evidence of appellants’ possession of recently stolen property (stolen an hour to an hour and a half prior to their apprehension) is prima facie evidence that they committed the burglary. See Palmer v. State, 323 So.2d 612 (Fla. 1 DCA 1975). In addition we have the circumstance that one of the appellants had previously worked at and had had a key to the studio and could easily have had a duplicate key made to give him continued access thereto. These circumstances presented a prima facie case sufficient to withstand the defendants’ motion for directed verdict.

Affirmed.

SMITH, J., concurs.

RAWLS, Acting C. J., dissents.

RAWLS, Acting Chief Judge

(dissenting). “When circumstantial evidence is relied upon for conviction in a criminal case, the circumstances, when taken together, must be of a conclusive nature and tendency, leading on the whole to a reasonable and moral certainty that the accused, and no one else, committed the offense.
“ . . . The cloak of liberty and freedom is far too precious a garment to be trampled in the dust of mere inference compounded. As was stated in Adams v. State, this court is fully cognizant of the rule that conviction may be had upon circumstantial evidence alone, and although the State’s burden does not extend to an absolute metaphysical and demonstrative certainty in proving a crime by circumstantial evidence, it must be sufficient as to every essential element of the crime charged to meet the requirement of the rule as set forth above. »

What evidence did the state adduce to prove that Robinson, Crenshaw and Davis, on the 21st day of January, 1976, did unlawfully enter the property of Mr. Humphrey with the intent to commit grand larceny and did steal camera equipment and blank checks of more than $100.00 value? My answer is “not enough”. Mr. Humphrey testified that Crenshaw had been temporarily employed by him in November of 1974; that he (Humphrey) was absent from his locked store on the day in question from 7:40 to 8:40 p. m., and upon returning found that the door had been jimmied and camera equipment valued at $2,000.00 along with blank checks had been stolen. The breaking and entering and theft was, without contradiction, proven.

As to appellants’ involvement in this criminal episode, the state adduced the testimony of two police officers (they were in separate vehicles) who testified that on the subject date, they stopped an automobile at about 9:00 p. m. which appellant Davis was driving, with Crenshaw in the right front seat and Robinson in the left rear seat. The officers found a pile of checks on the rear floorboard of the car between Robinson’s feet and a check under the right front seat which had been endorsed by a Robert Lewis. These checks were identified as having been stolen from Mr. Humphrey.

In my view, the trial court erred in denying appellants’ motion for directed verdict at the close of the state’s case. The above recited evidence is the sole proof adduced by the state to sustain its burden of proof that these appellants broke and entered into Humphrey’s store, stole some $2,000.00 worth of camera equipment and a “pile” of his business checks. Equally important is what the state failed to prove. No evidence, circumstantial or otherwise, was offered placing these appellants in the vicinity of Humphrey’s store at the time of the burglary; no evidence as to any burglary tools used; no evidence as to the disposal of the stolen camera equipment; and no evidence, other than McDougal’s fingerprints on a check, of knowing possession of the stolen checks. Glaringly missing is any other circumstantial evidence to bolster the state’s case, such as flight, concealment, resistance to a lawful arrest, presence at the scene of the crime, or incriminating fingerprints of these appellants. The possession of stolen goods is a fact from which appellants’ complicity may be inferred. But, the possession must be personal and must involve a distinct and conscious assertion by the appellants. The missing factual link which distinguishes these facts from Palmer v. State is that, there, the stolen property was “under the knowing dominions of all the defendants”. The facts here are more analogous to those recited in Taylor v. State, supra; Harris v. State; and Thomas v. State.

I would reverse with directions that appellants be discharged.

      . Harrison v. State, 104 So.2d 391 (Fla. 1st DCA 1958). See also Taylor v. State, 330 So.2d 91 (Fla. 1st DCA 1976).

      . Humphrey also testified that nothing was found missing from his business during the time Crenshaw as employed by him.

      . Another defendant McDougal, was occupying the right rear seat. His fingerprints were found on the checks. He is not a party in this appeal.

      . State v. Young, 217 So.2d 567 (Fla.1968).

      . Palmer v. State, 323 So.2d 612 (Fla. 1st DCA 1975).

      . Harris v. State, 307 So.2d 218 (Fla.3rd DCA 1974).

      . Thomas v. State, 297 So.2d 850 (Fla.4th DCA 1974).


author: RAWLS, Acting Chief Judge.

text:
    CENTRAL MUTUAL INSURANCE COMPANY, an Insurance Corporation, Appellant, v. William Thomas ELLIOTT and Ollie Mae Elliott, his wife, Continental Consolidating Corporation, a corporation, Southern Railway Co., a corporation, and Seaboard Coast Line Railroad Company, a corporation, Appellees.
    No. DD-337.
    District Court of Appeal of Florida, First District.
    June 30, 1977.
    Rehearing Denied July 29, 1977.
    William M. Howell, Howell, Howell, Liles & Braddock, Jacksonville, for appellant.
    Carl D. Dawson, Dawson, Galant, Maddox, Sulik & Nichols, and George L. Hud-speth, Mahoney, Hadlow & Adams, Jacksonville, for appellees.
   RAWLS, Acting Chief Judge.

This interlocutory appeal presents the following question: Is a boxcar a vehicle as used in an exclusionary provision in an insurance policy? Finding that the use of the word “vehicle” in the exclusionary provision created an ambiguity, the trial court held that a railroad boxcar was not a vehicle. We disagree.

Continental Consolidating Corporation (Continental) loaded a cargo of furniture packed in cardboard cartons in a boxcar owned by one of the defendant railroads to be delivered to the J. C. Penney Warehouse in Jacksonville, Florida. When the door to the subject boxcar was opened in Jacksonville by plaintiff William T. Elliott (an employee of J. C. Penney), he alleged an unsecured carton of furniture fell on him. Suit was brought by Elliott, alleging negligence against Continental and joining its insurer, Central Mutual Insurance Company (Central Mutual) as a party defendant. Central Mutual denied coverage by reason of an exclusionary clause in its policy of insurance. Continental cross-claimed contending it did have coverage under the policy and that Central Mutual was obligated to defend. Continental’s motion for summary judgment on its cross-claim against Central Mutual was granted by the trial court, finding that coverage existed because the policy was ambiguous.

The facing page of the subject policy reflects under Item 3 some 24 types of coverage available. Item 3 specifically states at the outset: “The insurance afforded is only with respect to the following Coverage Part(s) indicated by specific premium charge(s).” Only a premium for “Owners’, Landlords’ and Tenants’ Liability Insurance” was charged. Of importance is the fact that no premium was charged for “Completed Operations and Products Liability Insurance”.

“Coverage” by the terms of the policy provided bodily injury liability caused by an occurrence arising out of the ownership, maintenance or use of the insured premises. Of importance is the subject exclusionary clause which specifically provides:

“This insurance does not apply: . . . (p) to bodily injury or property damage included within the completed operations hazard or the products hazard. . . . ”

The “completed operations hazard” for which a premium was not paid provided coverage in connection with transportation of property in or on a vehicle created by the loading or unloading thereof. So, if the subject boxcar is a vehicle, it clearly follows that any coverage as to the loading of same fell within the completed operations hazard which was not covered by the subject policy-

In its partial summary final judgment, the trial court, in finding an ambiguity as to the meaning of the word “vehicle”, referred to Webster’s New International Dictionary, Second Edition, page 2824, which defines “vehicle” as:

“. .1. that in or on which a person or thing is or may be carried from one place to another, especially along the ground, also through the air; any moving support or container fitted or used for the conveyance of bulky objects; a means of conveyance.”

Yet, after reciting the above definition, the trial court found that a vehicle was not here involved. As used in the instant policy, we find no ambiguity. The completed operations hazard, which was not purchased by Continental, covered its liability exposure in the loading or unloading of vehicles. Cartons of furniture do not move from North Carolina to Jacksonville, Florida, by levitation. Excursions into illusionary semantic definitions of words should not be a mission of courts to provide insurance coverage in the name of ambiguity. Viewed in the context of the terms of the subject policy, we hold that a boxcar is a vehicle. In short, no premium; no coverage.

REVERSED.

McCORD and SMITH, JJ., concur.

      . 74 C.J.S. Railroads § 1 at pp. 318, 319, states:
      “ ‘Car,’ as used in railroad terminology, is the word generally employed to designate the vehicles used on railroads. So the word has been defined or employed as meaning a vehicle running on rails ....
      “While the word ‘car’ is the general term employed for the designation of vehicles used on railroads, a qualifying term is usually added to indicate the particular use or style, such as . . . box car . . .”


author: MILLS, Judge.

text:
    The STATE of Florida upon the relation of Leroy SMITH, Petitioner, v. John A. RUDD, as Judge of the Circuit Court of the Second Judicial Circuit in and for Leon County, Florida, Respondent.
    No. FF-327
    District Court of Appeal of Florida, First District.
    June 30, 1977.

      Elise F. Judelle, Judelle & Boge, Tallahassee, for petitioner.
    Robert L. Shevin, Atty. Gen., Michael H. Davidson, Asst. Atty. Gen., for respondent.
   MILLS, Judge.

Smith filed a suggestion for writ of prohibition in which he contends that his right to speedy trial has been violated.

On 27 July 1976, Smith was arrested on charges of forging and uttering. On 22 October 1976, a 24 count information was filed charging Smith with two counts of forgery and one count of uttering. Three other co-defendants were charged in the same information. On 1 November 1976, Smith and his co-defendants appeared before the respondent for purposes of arraignment and setting a trial date. One of the co-defendants, Kirkland, stated that he had retained private counsel, but since counsel was not present, Kirkland’s arraignment was passed. Since the public defender’s office was aware of a conflict in representing co-defendants Allen and Martin, private counsel was appointed to represent Martin. The public defender’s office was appointed to represent Smith and Allen. Smith and Allen were arraigned and a trial date of 28 December 1976 was agreed upon.

On 15 November 1976, Kirkland was arraigned. Because his private counsel was again absent, the public defender’s office was appointed for the limited purpose of arraignment and setting a trial date. At that point the assistant state’s attorney erroneously informed the respondent that trial had already been set for 28 January 1977.

On 30 November 1976, the respondent permitted the public defender to withdraw as Smith’s counsel due to a conflict of interest. Private counsel was appointed to represent Smith, and was notified of a trial date of 28 January 1977.

On 25 January 1977, after the 180 day time period for speedy trial had run, Smith filed a motion for discharge pursuant to Fla.R.Crim.P. 3.191. Smith also moved for a continuance until such time as his motion for discharge could be heard, but specifically reserved his rights under the speedy trial rule up to and including 28 January 1977. On 14 February, a hearing was held on his motion to discharge. On 23 February, nunc pro tunc to 14 February, Smith’s motion for discharge was denied, and on 29 March, an amended order was filed due to factual errors in the order of 23 February. On 6 April 1977, this suggestion for writ of prohibition was filed.

Smith contends that he did not waive his right to a speedy trial and that respondent had no authority to extend the applicable time period due to exceptional circumstances after the 180 day speedy trial period had already run. We agree.

In the amended order the respondent found that the totality of the circumstances in the case constituted exceptional circumstances as set forth in Fla.R.Crim.P. 3.191(f) and denied Smith’s motion for discharge. Fla.R.Crim.P. 3.191(d)(2) states:

“The periods of time established by this Rule for trial may at any time be waived or extended by order of the court . (ii) on the court’s own motion or motion by either party in exceptional circumstances as hereinafter defined, . . . ”

Fla.R.Crim.P. 3.191(f) states:

“As permitted by this Rule, the court may order an extension of time or continuance where exceptional circumstances are shown to exist; .
“Exceptional circumstances are those which as a matter of substantial justice to the accused or the State or both require an order by the court. . . .”

However, Fla.R.Crim.P. 3.191(d)(3) makes it clear that any order extending the speedy trial period due to exceptional circumstances must be issued before the speedy trial period has run and motion for discharge filed. Rule 3.191(d)(3) states:

“If trial of the accused does not commence within the periods of time established by this rule, a pending motion for discharge shall be granted by the court unless it is shown that (i) a time extension has been ordered as provided in § (d)(2), or (ii) the failure to hold trial is due to the unexcused actions or unexcused decisions of the accused, or of a co-defendant in the same trial. If a continuance or delay is attributable to the accused and is not excused, the pending motion for discharge shall on motion by the State be voidable by the court in the interest of justice; . . . ” (underlining supplied)

When Smith filed his motion for discharge no time extension had been ordered by the respondent as provided in §(d)(2). Therefore the motion for discharge should have been granted unless the failure to hold trial was due to unexcused behavior on the part of Smith or a co-defendant. The facts in this case clearly show that the failure to hold trial within the 180 day time period was not due to the actions of Smith or of a co-defendant. Smith was not brought to trial within 180 days because the assistant state’s attorney erroneously informed the respondent at Kirkland’s arraignment that a trial date had been set for 28 January 1977 rather than the correct date of 28 December 1976. It was this action by the State which caused the delay in bringing Smith to trial.

The writ of prohibition is made absolute and the respondent is prohibited from taking further action against Smith in the above-styled cause.

RAWLS, Acting C. J., and McCORD, J., concur.


author: SCHOONOVER, JACK R., Associate Judge.

text:
    Angelo Joseph SANTACROCE, Appellant, v. Anne SANTACROCE, Appellee.
    No. 76-893.
    District Court of Appeal of Florida, Second District.
    July 6, 1977.

      Gerald R. Colen, Devito & Colen, St. Pe-tersburg, for appellant.
    John W. Hamilton, Ware, Osborne & Hamilton, St. Petersburg, for appellee.
   SCHOONOVER, JACK R., Associate Judge.

The appellant, respondent in the trial court, filed this timely appeal from that portion of a Final Judgment of Dissolution of Marriage awarding lump sum and periodic alimony as well as child support to the appellee, petitioner below.

The appellant contends that the lower court erred in awarding the appellee child support in the amount of seventy-five dollars per week and periodic alimony in the amount of ten dollars per week. We agree and reverse.

The parties were married on July 14, 1963, and lived together as husband and wife until August 27, 1975. They had one son as a result of their marriage, to wit: Anthony Gerard Santacroce, born September 3, 1966.

According to the testimony, the husband had the capacity to earn One Hundred Twenty-nine Dollars per week, and the wife needed, in addition to her earnings of Eighty Dollars per week, One Hundred Dollars per week to meet her needs.

During closing arguments, the wife’s attorney suggested the sum of Twenty-five Dollars per week for child support, and the husband’s attorney stated that he felt Twenty-five Dollars per week was not unreasonable.

At the conclusion of the trial, the Court dissolved the marriage, awarded custody of the child to the wife, appellee, and ordered the appellant to pay Seventy-five Dollars per week child support, Ten Dollars per week periodic alimony, and Four Hundred Dollars attorney fees. The residence was awarded to the wife as lump sum alimony.

If this award was allowed to stand the wife would have One Hundred Sixty-five Dollars per week available to her and her son, and the husband would have Forty-four Dollars per week available to him. The award against the husband would amount to more than Sixty-five per cent of his earning capacity and under the facts in this case would be excessive. Nevins v. Nevins, 305 So.2d 63 (Fla.3d DCA 1975), cert. denied, 327 So.2d 33 (Fla.1976).

In view of our holding herein relating to the husband’s financial inability to pay the support and alimony award, the trial court’s order of contempt for appellant’s failure to comply therewith cannot stand.

We accordingly reverse that portion of the Final Judgment pertaining to child support, and because of the peculiar facts of this case as to the need for child support, and the husband’s resources, we direct the trial court to enter a judgment awarding the wife the sum of Twenty-five Dollars per week child support. Additionally, the judgment and sentence for contempt should be, and they are hereby, reversed. The judgment in all other respects is affirmed.

McNULTY, Acting C. J., and OTT, J., concur.


text:
    Michael Renay LOOSE, Appellant, v. STATE of Florida, Appellee.
    Nos. 76-932 to 76-935.
    District Court of Appeal of Florida, Second District.
    July 6, 1977.
    Jack 0. Johnson, Public Defender, and W. C. McLain, Asst. Public Defender, Bartow, for appellant.
    Robert L. Shevin, Atty. Gen., Tallahassee, and Richard G. Pippinger, Asst. Atty. Gen., Tampa, for appellee.
   PER CURIAM.

Appellant’s first point on appeal has been considered and determined to be without merit. Accordingly, the judgments in all of these consolidated cases and the sentences in Case Nos. 76-933, 76-934, and 76-935 are affirmed.

In response to appellant’s second point, we hereby remand Case No. 76-932 (Circuit Court Case No. 75-6632) for correction of the sentence. The three-year sentence entered upon appellant’s plea of guilty to two separate crimes, i. e. attempted burglary and possession of burglary tools, must be apportioned between the charges. Darden v. State, 306 So.2d 581 (Fla. 2d DCA 1975); see also Darden v. State, 330 So.2d 750 (Fla. 2d DCA 1976). Appellant need not be present for this purpose.

McNULTY, A. C. J., and GRIMES and OTT, JJ., concur.


text:
    Thelma PAGE and Allan Page, her husband, and Allan Page, Individually, Appellants, v. The CORY CORPORATION, a Foreign Corporation, and Fireman’s Fund American Insurance Company, a Foreign Corporation, Appellees.
    No. 76-670.
    District Court of Appeal of Florida, Third District.
    July 6, 1977.
    Joe N. Unger, Miami, for appellants.
    Corlett, Merritt, Killian & Sikes, Greene & Cooper and Sharon L. Wolfe, Miami, for appellees.

      Before BARKDULL, HAVERFIELD and HUBBART, JJ.
   PER CURIAM.

Thelma and Allan Page, plaintiffs in the trial court, appeal an adverse final judgment for the defendant, The Cory Corporation, entered pursuant to a jury verdict in this action for breach of implied warranty alleging that the trial judge committed reversible error by instructing the jury on comparative negligence.

Thelma Page, a waitress, was injured when the glass portion of a coffee pot which she was using in connection with her duties came unattached from the plastic handle causing the boiling water in the pot to spill over the lower portion of her body. Thelma, joined by her husband, Allan, filed a breach of implied warranty action against The Cory Corporation, manufacturer of the coffee pot, and its liability insurer alleging that the coffee pot was defective because the handle was not properly secured. Cory answered that if there was a defect, then it was caused by misuse. After the parties had presented their respective cases to the jury, a charge conference was held at which the Pages agreed to proceed only on the breach of implied warranty theory and Cory withdrew all of its requested negligence charges. The judge instructed the jury on misuse and then read the standard jury instruction on comparative negligence. Upon concluding the instructions, the judge asked counsel for the respective parties, “Okay. Now, gentlemen, have I covered everything?” No objection was made to the instruction and the jury retired to deliberate. During the deliberation, Pages’ counsel voiced his objection to the giving of the comparative negligence charge to the jury. The jury returned a verdict in favor of Cory Corporation and judgment was entered accordingly. The Pages appeal therefrom.

Where an appellant fails to make a timely objection in the trial court, he (or she) cannot claim error on appeal. Golden v. Harrell, 147 So.2d 350, 352 (Fla.2d DCA 1962). An objection to an instruction given to the jury after the jurors have already retired to deliberate is untimely and cannot be considered on appeal. Luster v. Moore, 78 So.2d 87 (Fla.1955).

The record reflects that immediately after the instructions were given to the jurors and before they retired to deliberate, the judge gave counsel an opportunity to raise any objections to the charges. Pages’ counsel did not object at that time; but delayed until the jury was in the process of considering its verdict. Thus, the objection was untimely and cannot be considered on appeal.

Affirmed.


text:
    MOTOR NEW YORKER, INC., d/b/a Motel New Yorker, Petitioner, v. DIVISION OF HOTELS AND RESTAURANTS, Respondent.
    No. 77-1307.
    District Court of Appeal of Florida, Third District.
    July 6, 1977.
    Rehearing Denied July 27, 1977.
    L. J. Cushman, Miami, for petitioner.
    Charles T. Collett, Tallahassee, for respondent.
    Before HENDRY, C. J., and BARKDULL and HAVERFIELD, JJ.
   PER CURIAM.

This is a petition pursuant to Section 120.68(3), Florida Statutes (1975), which we are treating as a petition for certiorari in which Motor New Yorker, Inc., petitioner, seeks review of an order of the Division of Hotels and Restaurants which vacated, forfeited and estreated the supersedeas bond previously granted, pending appeal to the Board of Business Regulation. From our review of the record before us, we have concluded that the respondent failed to follow the essential requirements of law in the proceedings which resulted in the cancellation of petitioner’s supersedeas bond.

Therefore, the petition is granted and the order cancelling, forfeiting and estreating petitioner’s supersedeas bond is quashed and vacated, and the bond is reinstated.

It is so ordered.


author: HUBBART, Judge.

text:
    Jesus N. ABREAU, Appellant, v. STATE of Florida, Appellee.
    No. 76-570.
    District Court of Appeal of Florida, Third District.
    July 6, 1977.

      Kogen & Kogan and Geoffrey C. Fleck, Miami, for appellant.
    Robert L. Shevin, Atty. Gen., and Arthur Joel Berger, Asst. Atty. Gen., and Harold E. Rosenfeld, Legal Intern, for appellee.
    Before HENDRY, C. J., and PEARSON and HUBBART, JJ.
   HUBBART, Judge.

This is a criminal prosecution for the offense of assault with intent to commit first degree murder. The defendant was convicted as charged and appeals. We reverse.

The major issue presented for review is whether it is reversible error for a trial court to refuse to instruct a jury upon request by defense counsel as to the lesser offense of assault in a prosecution for assault with intent to commit murder. We hold that assault is a necessarily included offense in the main charge of assault with intent to commit murder and the refusal to give such an assault instruction upon request by defense counsel constitutes reversible error to which the harmless error doctrine is inapplicable. This result is unchanged by: (1) the trial court’s view as to the weight of the evidence on the assault charge, providing there is legally sufficient evidence to send the case to the jury on the offense of assault with intent to commit murder; or (2) the defendant’s factual theory of the case as presented to the jury absent an express waiver by the defendant of the assault instruction.

The appellant Jesus Abreau, who was the defendant below, was charged by information with the crime of assault with intent to commit first degree murder before the Circuit Court for the Eleventh Judicial Circuit of Florida. The defendant entered a plea of not guilty and was tried by a jury. At trial, the state established sufficient evidence to send the case to the jury on the main charge of assault with intent to commit first degree murder.

At the conclusion of the evidence, the defendant requested the trial court to instruct the jury on the lesser offense of assault. The trial court denied this request on the ground that the defendant had not disputed the fact that the complainant in this case was assaulted with a deadly weapon and that “at least [the evidence] arises to the dignity of an assault with a deadly weapon.” Accordingly, the trial court instructed the jury on the main charge of assault with intent to commit first degree murder and on the lesser offense of assault with a deadly weapon. The defendant was convicted as charged. He was sentenced to fifteen years in the state penitentiary and assessed a $10,000 fine. This appeal follows.

I

The state concedes that it was error for the trial court to deny the defendant’s request to instruct the jury on the lesser offense of assault since assault is a necessarily included offense in the main charge of assault with intent to commit first degree murder. State v. Terry, 336 So.2d 65 (Fla.1976). See Allison v. State, 162 So.2d 922 (Fla. 1st DCA 1964). The trial court was under a mandatory duty to so instruct the jury under Fla.R.Crim.P. 3.510 because the burden of proof on the main charge of assault with intent to commit murder cannot be discharged without proving an assault as an essential link in the chain of evidence. As such, assault is a necessarily included offense [a category 3 lesser offense] in the main charge of assault with intent to commit murder under the landmark decision of Brown v. State, 206 So.2d 377, 381-82 (Fla.1968).

The trial court refused to give the assault instruction because the defendant had not denied that the complainant herein was assaulted with a deadly weapon and the evidence arose, in the court’s view, at least to the dignity of an assault with a deadly weapon. The trial court’s view that the evidence is not rationally susceptible of a guilty verdict on a necessarily included offense does not excuse the trial court from giving such instruction so long as there is sufficient evidence to send the case to the jury on the main charge. State v. Terry, 336 So.2d 65 (Fla.1976); Brown v. State, 206 So.2d 377 (Fla.1968); Hand v. State, 199 So.2d 100 (Fla.1967). Since there was sufficient evidence herein to send the case to the jury on the main charge of assault with intent to commit murder, the court should have also instructed the jury on the lesser offense of assault.

Moreover, the fact that the defendant did not deny that the complainant was assaulted with a deadly weapon does not change this result. Absent an express waiver by the defendant on the necessarily included offense charge, the defendant’s factual theory of the case before the jury cannot excuse a trial court from instructing on necessarily included offenses. We find no such express waiver in this case.

II

The state contends that the defendant’s conviction should be affirmed because the conceded error herein is harmless relying on DeLaine v. State, 262 So.2d 655 (Fla.1972). We disagree. The Florida Supreme Court in Lomax v. State, 345 So.2d 719 (Fla.1977), receded from DeLaine and its progeny and held as follows:

“[W]e . . . hold that when failure to instruct on a lesser-included offense constitutes error, the harmless error doctrine will not be invoked. Any such failure constitutes prejudicial error and is thus per se reversible.
Any prior appellate decisions conflicting with the principle announced herein are overruled.” Id. at 721.

The state attempts to distinguish Lomax on the ground that there is still some vitality to the harmless error doctrine as applied to jury instructions on lesser included offenses where, as here, the jury convicts on the main offense and declines to convict on another lesser offense given by the trial court. We cannot agree. Lomax has tolled the death knell of the harmless error doctrine in lesser-offense jury instruction cases. The doctrine cannot be resurrected from the ashes of Lomax in any form.

In all fairness to the trial court, we must observe that the Terry and Lomax decisions were rendered subsequent to the trial in this case. Moreover, the law in this area since DeLaine has hardly been a model of clarity. See Garrison v. State, 340 So.2d 1171 (Fla. 4th DCA 1976). Lomax, however, clarifies the confusing line of cases represented by DeLaine and its progeny by overruling such decisions. A trial judge is now under a mandatory duty to instruct a jury on all lesser offenses required by Fla. R.Crim.P. 3.510, 3.490 as interpreted by Brown v. State, 206 So.2d 377 (Fla.1968), when requested by either the state or the defense. Failure to give such an instruction upon request of the defense will compel a reversal of any conviction obtained thereafter without regard to the harmless error doctrine.

In view of the result reached herein, it is unnecessary to consider the defendant’s other contentions advanced on this appeal. The conviction herein is reversed and the cause remanded for a new trial.

Reversed and remanded.

      .The defendant was also charged with conspiracy to commit first degree murder, but that charge was apparently abandoned by the state. The information charged that the assault with intent to commit murder was committed on February 10, 1975. The statutes in effect at that time which proscribed assault with intent to commit first degree murder were: § 784.06 Fla.Stat. (1973); § 782.04(l)(a), Fla.Stat. (Supp. 1974). The crime now proscribed by § 784.-021(l)(b), Fla.Stat. (1975); § 782.04(l)(a), Fla. Stat. (1975). A prior trial on this charge was held which resulted in a mistrial.

      . The assault statute in effect at the time of the alleged offense was § 784.02, Fla.Stat. (1973). Assault is now proscribed by § 784.011, Fla. Stat. (1975).

      . The aggravated assault statute in effect at the time of the alleged offense was § 784.04, Fla. Stat. (1973). Assault with a deadly weapon is now proscribed by § 784.021(l)(a), Fla.Stat. (1975).

      . “Upon an indictment or information upon which the defendant is to be tried for any offense the jurors may convict the defendant . of any offense which is necessarily included in the offense charged. The court shall charge the jury in this regard.”

      . Dobbert v. State, 328 So.2d 433 (Fla.1976); State v. Wilson, 276 So.2d 45 (Fla.1973); Dean v. State, 265 So.2d 15 (Fla.1972); State v. Diggs, 336 So.2d 446 (Fla. 4th DCA 1976); Lomax v. State, 322 So.2d 650 (Fla. 2d DCA 1975); Sherman v. State, 307 So.2d 257 (Fla. 2d DCA 1975); Spigner v. State, 304 So.2d 496 (Fla. 1st DCA 1974); Stephens v. State, 279 So.2d 331 (Fla. 2d DCA 1973); Logan v. State, 264 So.2d 461 (Fla. 4th DCA 1972).


author: HAVERFIELD, Judge.

text:
    CONTINENTAL CASUALTY COMPANY and Saul J. Morgan Enterprises, Inc., Appellants, v. ASSOCIATED PLASTICS, INC., et al., Appellees.
    Nos. 76-520, 76-566.
    District Court of Appeal of Florida, Third District.
    July 6, 1977.
    Frates, Floyd, Pearson, Stewart, Richman & Greer and Gerald F. Richman, Carey, Dwyer, Cole, Selwood & Bernard and Steven R. Berger, Miami, for appellants.
    Cohen & Angel and Stanley D. Angel, North Miami, for appellees.

      Before BARKDULL, HAVERFIELD and NATHAN, JJ.
   HAVERFIELD, Judge.

Defendant, Saul J. Morgan Enterprises, Inc., appeals an amended final judgment directing it to pay $34,021.61 plus interest, costs and attorney’s fees to the plaintiff, Associated Plastics, Inc., a paint supplier, in this action to foreclose a mechanic’s lien.

Saul J. Morgan Enterprises, Inc., the owner of certain real property, designated Morgan Properties, Inc. as the general contractor to construct a condominium project known as Century 21 — Comodore Plaza. On April 27, 1970 Morgan Properties contracted with Klein Painting Corporation to paint the structures. Between April 6,1970 and November 11,1971 Associated Plastics, Inc. furnished the paint and paint supplies used on the project to Klein Painting. On June 18,1970, shortly after Associated commenced supplying Klein, Associated filed a notice to owner (Saul J. Morgan Enterprises) pursuant to Section 713.06, Florida Statutes (1969); however, the notice contained the address and legal description of the property adjoining that of Morgan Enterprises. No paint or material was supplied by Associated with respect to this adjacent property (the Ives Tract), owned by Norman Cohen and improved with a model sales building and offices. Upon receipt of the notice to owner, the president of Morgan Enterprises had it placed in a separate Ives Tract file in accordance with the legal description contained therein.

It is undisputed that Associated had full knowledge that Klein did not have sufficient cash reserves and financial backing to carry a project of this size; but, nevertheless, agreed to extend Klein credit, and on October 5, 1970 Associated falsely executed a sworn partial waiver of lien indicating to Saul Morgan Enterprises that it had received a payment of $10,000 from Klein.

As a result of financial and other difficulties, Saul Morgan Enterprises on October 21, 1971 conveyed the subject property and project to Norman Cohen, who, upon completion of the contract, paid Klein the remaining balance due. Payments to Klein were made upon the reliance of false affidavits filed by Klein representing payment in full of all materials, labor and services. On February 3, 1972 Associated filed a claim of lien in the amount of $34,296.92 due containing the address and legal description of the Ives Tract, and on March 9 forwarded a final contractor’s affidavit. Cohen refused to pay the $34,296.92 and Associated filed the instant suit to foreclose its lien against Saul Morgan Enterprises, Norman Cohen and Klein Painting Company. Morgan Enterprises and Norman Cohen secured a $40,570.38 bond from Continental Casualty Company, as surety, and had the lien transferred to this surety bond pursuant to Section 713.24, Florida Statutes (1971). Morgan Enterprises and Cohen answered and filed a cross-claim against Klein Painting for indemnity in the event a judgment should be entered against them on the ground Klein had been paid in full for paint and supplies furnished by Associated. Cohen, pursuant to stipulation of the parties, was dismissed as a party defendant. The cause was tried non-jury and after trial, the judge entered final judgment against Saul Morgan Enterprises in favor of Associated in the total sum of $49,603.97 including principal, interest, costs and attorney’s fees. The judgment further directed that in the event Saul Morgan Enterprises failed to pay the above, Associated would recover $40,570.38 from Norman Cohen and Continental Casualty, as surety, on the bond. The judgment was based upon the following pertinent findings:

“11. The serving of the Notice to OWNER, the filing of the Claim of Lien, the notification to OWNER of the filing of the Claim of Lien and the preparation and forwarding of the Final Contractor’s Affidavit all were performed or accomplished in accordance with the procedure and within the time periods set forth in the various appropriate sections of Chapter 713 of the Florida Statutes. If there were any omissions, inaccuracies or oversights contained within or relating to the preparation or service of any of these documents, they were of such a non-material nature as not to be prejudicial to any of the Defendants in the exercise, preservation or protection of any of their .substantive rights.
* * * * * *
“B. The equities of this cause are with ASSOCIATED and ASSOCIATED has sustained its requisite burden of proof.
“C. The Defendants, OWNER and NORMAN COHEN, individually and as principals, and Continental Casualty Company, as Surety, did, after the commencement of this action, file a bond in this cause pursuant to the authority of F.S. 713.24, wherein the lien of the Mechanics’ Lien filed in this cause by ASSOCIATED was transferred to bond. NORMAN COHEN has been dismissed from this cause as a Defendant. However, this bond is a valid and subsisting bond and is in the present amount of $40,570.38.
“D. OWNER has not sustained the requisite burden of proof on any of the Affirmative Defenses raised by it against the claim of ASSOCIATED.”

Saul Morgan Enterprises, Norman Cohen and Continental Casualty Company appeal. We reverse.

Morgan Enterprises argues that the judgment was erroneously entered because, inter alia, the notice to owner and claim of lien failed to contain an accurate description of the property which adversely affected it, and further Associated is equitably estopped to enforce its lien under the unclean hands doctrine.

It is undisputed that the June 18, 1970 notice to owner and the February 3, 1972 claim of lien contained the address and legal description of the Ives Tract. As a result, the notice to owner was placed in the Ives Tract file and Norman Cohen was unaware of its existence until after Associated filed its claim of lien and the instant foreclosure action. Thus, it is apparent that Associated did not comply with the requisite requirements set down in Section 713.-06(2)(a), Florida Statutes (1969) in that it failed to give a description sufficient for identification of the subject real property in its notice to owner. The evidence further reflects that Cohen after taking control of the project was adversely affected thereby. Associated’s reliance upon Adobe Brick and Supply Co. v. Centex-Winston Corp., 270 So.2d 755 (Fla.3d DCA 1972) is misplaced because in Adobe there was only a slight mistake in the street address, otherwise the description was sufficient for the identification of the property. In contrast, both the address and legal description in the notice and claim of lien in the instant case described a completely different parcel of property. Associated having failed to properly put the owners (Morgan Enterprises and Cohen) on notice in accordance with the above statute and the owners having paid Klein Painting all funds due under the subcontract, they should not be required to pay twice for the paint supplied thereunder. Cf. Gay Mechanical Contractors, Inc. v. Case, 275 So.2d 570 (Fla. 1st DCA 1973).

We also find that Associated is equitably estopped to foreclose its lien. The record demonstrates that although Associated knew of Klein’s financial difficulties, it not only extended Klein credit, it filed a false partial release indicating it had received a $10,000 payment from Klein leading the owners to believe Klein was paying Associated for paint and supplies when, in fact, Associated had not been paid. Therefore, Associated should bear its own loss as the court stated in Bryan v. Owsley Lumber Company, 201 So.2d 246, 249 (Fla. 1st DCA 1967):

“ . . . persons furnishing labor and material to a contractor are in a favorable position to determine the extent to which credit shall be extended before requiring payment for the amounts to become due for the services to be performed and materials to be furnished, and that if because of misplaced confidence or misjudgment on their part the contractor becomes either unwilling or unable to pay them the amount owed, they are relegated for the payment of their claims to such balance of the contract price as may remain due the contractor by the owner. Such a concept is premised upon the equitable maxim that where one of two innocent persons must suffer as a result of the default of another, the loss shall fall on him whose act made the loss possible.”

For the reasons stated, the judgment rendered against Saul Morgan Enterprises is reversed.

Norman Cohen contends it was error to enter judgment against him because he was dismissed as a party to this action. We agree and reverse the judgment as to him and Continental Casualty, as surety. In view of this holding, the argument raised by Continental need not be considered.

We further note that judgment was entered for Morgan Enterprises on its cross-claim for indemnity against Klein and in light of our above disposition, find this cross-claim to be moot.

Judgment reversed.

      . Also named as a party defendant to this action.

      . Prior to that time, upon taking control of the project, Cohen examined the Morgan Enterprises’ file containing all notices to owner relating to the subject property and it did not contain the notice from Associated as the notice had been put in the Ives Tract file.

      . 250 N.E. 174 Street, Miami Beach, instead of 250 of 174 Street, Miami Beach.


text:
    CARNIVAL CRUISE LINES, INC., Appellant, v. FINANCIAL INDEMNITY COMPANY, Appellee.
    No. 76-1267.
    District Court of Appeal of Florida, Third District.
    July 6, 1977.
    Weithorn & Mazloff and Howard W. Mazloff, Coral Gables, for appellant.
    Leland E. Stansell, Jr., and Robert A. Glassman, Miami, for appellee.
    Before BARKDULL, HAVERFIELD and NATHAN, JJ.
   PER CURIAM.

Appellant, Carnival Cruise Lines, Inc., plaintiff in the trial court, seeks reversal of a final judgment for the defendant, Financial Indemnity Company, entered pursuant to Financial’s motion for directed verdict at the close of Carnival’s case in an action to recover on a surety bond.

The issue presented for our determination is whether the obligee has the burden to show lack of prejudice to the surety or whether the duty devolves upon a compensated surety to plead and prove prejudice as a result of the failure of the obligee to give timely notice to the surety of the principal’s default as required under the terms of the bond in question.

Carnival Cruise Lines in 1974 entered into an agreement with Caribbean Travel Center, Inc., whereby Carnival appointed Caribbean as an agency for the sale of an allotted number of passenger spaces on the luxury cruise ship T.S.S. Mardi Gras. Caribbean was a wholesaler which sold air/sea and land travel packages to other travel agents or individuals and paid Carnival for the cruise portion of the package. Carnival required Caribbean to provide a bond to secure any monies due and Caribbean executed a $25,000 surety bond with the defendant-appellee, Financial Indemnity Company. The bond required Carnival to furnish notice to Financial within 10 days “after any condition comes to the attention of the obligee that would cause a claim under the terms of the bond.”

In December 1974 Caribbean had failed to remit over $25,000 due Carnival; but the parties worked out an arrangement whereby Caribbean agreed to a delayed payment schedule of $2,000 per week. Carnival did not notify Financial of Caribbean’s default in payments and continued to do business with Caribbean on a current basis while Caribbean was making the delayed payments which reduced the outstanding balance to approximately $3,000. In April 1975 Caribbean again failed to remit monies to Carnival and another delay in payment was agreed to. Upon learning that Caribbean was contemplating bankruptcy. Carnival on the following day, June 19,1975, sent a telegram to Financial demanding that Financial pay it $25,000 pursuant to the bond. Financial answered that Carnival had failed to give it timely notice and, therefore, was not obligated under the bond. The cause proceeded to a jury trial and at the close of Carnival’s case, Financial moved for a directed verdict on the ground that Carnival did not give timely notice and failed in its burden to demonstrate that Financial was not prejudiced thereby. The court granted the motion and entered final judgment for Financial. We reverse.

There is no question that Financial is a compensated surety in the business of writing bonds for profit. The established law with respect thereto is that actual damage resulting from failure to give notice must be pled and proved as a defense, and that failure to give a compensated surety notice of a principal’s default as required in the bond does not relieve the surety where the failure results in no loss to it. See Maule Industries, Inc. v. Gaines Const. Co., 157 So.2d 835 (Fla. 2d DCA 1963); Plowden & Roberts, Inc. v. Conway, 192 So.2d 528 (Fla. 4th DCA 1966) and 30 Fla.Jur. Suretyship and Guaranty §§ 21, 22 (1974).

Having raised the defense of untimely notice in its answer, Financial had the burden of proving prejudice as a result thereof.

Accordingly, the final judgment entered pursuant to the directed verdict for Financial is reversed and the cause is remanded for a new trial.

Reversed and remanded.

      . Carnival


text:
    Birdie DORSETT, Appellant, v. Lawrence Roger DION, Sr., and Lawrence Roger Dion, Jr., Appellees.
    No. 76-1028.
    District Court of Appeal of Florida, Third District.
    July 6, 1977.

      Bradford, Williams, McKay, Kimbrell, Hamann & Jennings and W. Sam Holland, Miami, for appellant.
    Edward B. Johnson, Jr., Key West, for appellees.
    Before HENDRY, C. J., and PEARSON and HAVERFIELD, JJ.
   PER CURIAM.

The plaintiff appeals a final judgment upon a jury verdict and assigns as error the denial of her motion for a new trial which was predicated upon an alleged inadequate verdict. The cause was an automobile negligence action tried under the theory of comparative negligence. We affirm.

The only point requiring discussion here is appellant’s contention that the trial court erred in allowing evidence that the plaintiff was illegally driving with a learner’s permit at the time of the accident. She relies upon the holding of this court in Goldner v. Len-tin, 96 So.2d 553 (Fla. 3d DCA 1957), for reversible error. In that case, the court held that the refusal of a trial court to admit into evidence that the driver of a motor scooter was operating the scooter under a restricted driver’s license was not error where there was no causal connection between the collision and the fact that the operator of the scooter was operating the scooter under a restricted driver’s license. In the present case, the trial court admitted the evidence upon his determination that it was relevant and that it could be found to have causal connection. We think that the trial judge was right in each instance. In this case, it is clear that there was no contact between plaintiff’s automobile and defendant’s automobile and that the plaintiff’s injury may well have resulted from her own inexperience and her inability to handle her own car.

Affirmed.


text:
    Sadie CARLIN and Louis Carlin, her husband, Appellants, v. GOLDMAN INDUSTRIES, INC., a Florida Corporation, Skylake Garden Recreation, Inc., a Florida Corporation, Jerome Weinstein, and Allstate Insurance Company, Appellees.
    No. 76-1100.
    District Court of Appeal of Florida, Third District.
    July 6, 1977.

      Schwartz, Klein & Steinhardt and Norman S. Klein, North Miami Beach, for appellants.
    Weinstein & Bavly and Arthur J. Mor-burger, Miami, Jones & Morcroft and Richard S. Zaifert, Fort Lauderdale, for appel-lees.
    Before BARKDULL, HAVERFIELD and NATHAN, JJ.
   PER CURIAM.

Sadie Carlin and Louis Carlin (her husband), plaintiffs in the trial court, appeal from an adverse summary final judgment in a negligence action.

Sadie Carlin slipped and fell while dancing at the social hall of the Sky Lake Condominium. Thereafter, Sadie and her husband filed suit, seeking damages for injury to Sadie’s hip. Named as defendants were Jerome Weinstein [who allegedly negligently and carelessly applied wax to the dance floor] and his insurer, Allstate Insurance Company; also the building’s management, Goldman Industries, Inc., and Skylake Garden Recreation, Inc., and its insurer, Allstate Insurance Company. The trial court granted the defendants’ motions for summary judgment, apparently because of admissions in plaintiff-Sadie Carlin’s deposition disclosing assumption of the risk. This appeal ensued. We reverse.

In this State, an injured party may have a cause of action for a fall on a dance floor. Durden v. Dranetz, 99 So.2d 716 (Fla. 3rd D.C.A. 1958). The Supreme Court of Florida has now determined that assumption of the risk is no longer available as a complete defense. See: Blackburn v. Dorta, 348 So.2d 287 (Fla. 3rd D.C.A. 1977), opinion filed May 5, 1977.

Therefore, the summary final judgment be and the same is hereby reversed, and the cause is returned to the trial court for further proceedings.

Reversed and remanded, with directions.

      . It is noted that this cited opinion was not available to the trial judge at the time he rendered the summary final judgment in this action.


text:
    STATE of Florida, Appellant, v. Sandy ACURSE, Appellee.
    No. 76-516.
    District Court of Appeal of Florida, Third District.
    July 6, 1977.

      Richard E. Gerstein, State Atty., for appellant.
    Alan E. Weinstein, Miami Beach, for ap-pellee.
    Before HENDRY, C. J., and PEARSON and HUBBART, JJ.
   HUBBART, Judge.

This is a criminal prosecution in which the defendant was discharged from the cause on the ground that he was denied his right to speedy trial. The state appeals.

The question presented for review is whether a criminal defendant has been denied his right to a speedy trial under Fla.R. Crim.P. 3.191(a)(2) when: (1) he expressly waives his speedy trial rights in writing and continues his case, (2) he later revokes such waiver and files an otherwise valid and bona fide demand for a speedy trial serving a copy of same on the state, (3) he is not brought to trial within sixty days after the filing of such speedy trial demand, (4) he is continuously available for trial during the above sixty day period, and (5) the state does not obtain a court order extending the sixty day speedy trial limit on a showing of exceptional circumstances. We hold that under these circumstances the defendant has been denied his right to a speedy trial and should be discharged from the cause under Fla.R.Crim.P. 3.191(a)(2). We, accordingly, affirm.

On June 28, 1974, the appellee Sandy Acurse was arrested and charged with certain criminal offenses which subsequently led to the filing of an information charging him and several co-defendants with possession of a controlled substance, sale or delivery of a controlled substance, conspiracy to commit a felony, and assault with intent to commit murder, before the Circuit Court of the Eleventh Judicial Circuit of Florida. There followed a period of delay which is unexplained in the record filed in this court by the state. On May 19, 1975, the defendant filed a written waiver of his speedy trial rights. Subsequent thereto, he moved for a continuance which was granted by the court.

On November 10, 1975, the case was called for trial. The defense announced ready for trial, but the state was not ready and the case was continued at the request of the state. At that time, the defendant objected to the continuance and advised both the court and counsel for the state that he intended to file a demand for speedy trial.

On November 14, 1975, the defendant filed with the court a demand for speedy trial and served a copy thereof upon the state under Fla.R.Crim.P. 3.191(a)(2) in which he revoked all prior waivers of speedy trial. The state at no time objected to the filing of this demand, or moved to strike such demand, or requested an extension of the sixty day speedy trial period triggered by the demand upon a showing of exceptional circumstances. The case, instead, lay dormant for over sixty days during which time the defendant was not brought to trial although he was continuously available during that time for such purpose.

On January 19, 1976, the defendant filed a motion for discharge for failure to accord him a speedy trial under Fla.R.Crim.P. 3.191(a)(2) which the trial court granted. This appeal by the state follows.

The law is well-settled that a defendant may properly file a demand for speedy trial under Fla.R.Crim.P. 3.191(a)(2) subsequent to the filing of an indictment or information so long as he has a bona fide desire to go to trial, has diligently investigated his case and is prepared for trial. State ex rel. Hanks v. Goodman, 253 So.2d 129 (Fla.1971). If the defendant is not brought to trial within sixty days thereafter and is continuously available for trial during that time, he must be finally discharged from the cause, unless the state has sought and obtained a court order extending the sixty day speedy trial limit upon a showing of exceptional circumstances. State ex rel. Fouraker v. McCauley, 258 So.2d 453 (Fla. 1st DCA 1972); Fla.R. Crim.P. 3.191(a)(2), (f); 9 Fla.Jur. “Criminal Law” § 381 (1972). A demand for speedy trial revokes any prior express or implied waivers of speedy trial. State ex rel. Butler v. Cullen, 253 So.2d 861 (Fla.1971). See also Rubiera v. Dade County ex rel. Benitez, 305 So.2d 161 (Fla.1974).

In the instant case, the defendant filed a demand for speedy trial and served a copy thereof on the state. The state made no effort to object to or strike the demand as not being valid or bona fide nor did it move the court for an extension of the sixty day speedy trial limit upon a showing of exceptional circumstances. Instead the state let the case remain dormant for sixty days during which time the defendant was continuously available for trial. Upon the state’s failure to bring the defendant to trial within sixty days subsequent to the filing of the speedy trial demand, the trial court had no alternative under the law but to discharge the defendant.

Affirmed.

      . “Speedy Trial Upon Demand. Except as otherwise provided, and subject to the limitations imposed under section (c) hereof, every person charged with a crime by indictment or information shall upon demand filed with the court having jurisdiction and upon service of a copy of such demand upon the prosecuting attorney be brought to trial within 60 days, unless the State is granted a continuance because of exceptional circumstances as defined in this Rule, and if not brought to trial within such period of time following such demand shall upon motion timely filed with the court and served on the prosecuting attorney be forever discharged from the crime; provided, the court before granting such motion shall ascertain that such person has been continuously available for trial during said period of time. The time period established by this section shall commence when such demand has been properly filed and served.”


author: HENDRY, Chief Judge.

text:
    Julio VIYELLA, Sylvia Viyella, his wife, and Julio A. Viyella, Inc., Appellants, v. Willie JACKSON d/b/a Jackson Terrazzo, Appellee.
    No. 77-384.
    District Court of Appeal of Florida, Third District.
    July 6, 1977.

      Melvin D. Bratton, Coral Gables, for appellants.
    Chopin & Chopin, Miami, for appellee.
    Before HENDRY, C. J., and PEARSON and BARKDULL, JJ.
   HENDRY, Chief Judge.

Appellants, defendants below, bring this interlocutory appeal from an order denying their motion to dismiss the complaint of appellee, plaintiff below.

Appellee, a laborer who installs terrazzo floors, filed a three count complaint against appellants. Count I of the complaint sought foreclosure of a mechanic’s lien; count II sought damages for work done and materials furnished; and count III sought damages based upon the dishonoring of two checks payable to appellee from appellant, Julio A. Viyella, Inc.

Appellants moved to dismiss the complaint alleging, as to count I, a failure to comply with Chapter 713 (Part I, Mechanics’ Lien Law), Florida Statutes (1975); and as to counts II and III, inter alia, a failure to state a cause of action. By order, the motion to dismiss was denied and appellants brought this interlocutory appeal. By order of this court, we granted appellee’s motion to dismiss the appeal as it pertains to counts II and III as not being the proper subject for interlocutory appeals pursuant to Fla.App. Rule 4.2(a). As applies to count I, foreclosure of a mechanic’s lien, this appeal follows.

Appellants’ basic contentions are twofold. First, appellants contend that the trial judge erred in refusing to dismiss count I of appellee’s complaint in that appellee violated the forty-five day period of serving a “notice to the owner” pursuant to Section 713.06(2)(a), Florida Statutes (1975). In addition, appellants contend that appellee failed to serve an affidavit on the owners, pursuant to Section 713.06(3)(d)(l), Florida Statutes (1975).

Appellants’ first contention is quickly disposed of in that the failure to serve the notice of intention to claim a lien within forty-five days of a lienor’s commencing to furnish his services or materials is not an absolute bar to a claim of lien. Torres v. MacIntyre, 334 So.2d 59 (Fla.3d DCA 1976). Rather, the forty-five day rule was intended to establish a priority category for lien-ors who give notice to the owner within said period. Crane Co. v. Fine, 221 So.2d 145 (Fla.1969).

As for appellants’ second contention, concerning the filing of an affidavit five days before instituting suit to enforce a lien, we note that said requirement applies only to contractors, and not sub-contractors. Art Berman Concrete, Inc. v. Sey Construction Corp., 247 So.2d 791 (Fla.3d DCA 1971). Reading paragraphs three and four of ap-pellee’s complaint, it would appear that there were sufficient allegations contained therein to reasonably conclude that appellee was a sub-contractor. Paragraph three of count I alleged that appellants, Julio and Sylvia Viyella entered into a construction contract with Julio A. Viyella, Inc. Paragraph four alleged that Julio A. Viyella, Inc., then contracted with appellee to install terrazzo floors on the property to be constructed by Viyella, Inc., and owned by appellants, Julio and Sylvia Viyella.

Therefore, taking the well pled allegations as true, we hold that appellee’s complaint stated a valid claim for relief and affirm the order of the trial court denying appellants’ motion to dismiss the complaint. Green v. Florida East Coast Railway Company, 141 So.2d 326 (Fla.1st DCA 1962).

Any other points raised by appellants are without merit.

Affirmed.