author: BOARDMAN, Chief Judge.

text:
    LEISURE GROUP, INC., an Ohio Corporation, and Hartford Insurance Company, Inc., a Connecticut Corporation, Appellants, v. Mary K. WILLIAMS, Individually and as next friend and natural guardian of the minor, Todd Williams, Appellee.
    No. 77-913.
    District Court of Appeal of Florida, Second District.
    Oct. 26, 1977.
    Ronald L. Napier of Pomeroy, Betts & Napier, and Charles R. Holley, Naples, for appellants.
    Daniel R. Monaco and William D. Keith of Monaco & Cardillo, Naples, for appellee.
   BOARDMAN, Chief Judge.

Appellee/plaintiff, Mary K. Williams, filed a complaint against Leisure Group, Inc., its insurer, Hartford Insurance Company; W. T. Grant, Inc., its insurer, Liberty Mutual Insurance; Funtime Nursery, Inc., and its insurer, Travelers Indemnity Corp. alleging negligence and breach of warranty. The complaint alleged that appellee’s minor child, Todd Williams, was injured while he was playing at Funtime Nursery on a swing set sold by W. T. Grant and manufactured by Leisure Group. Prior to trial, settlements were negotiated between appellee and W. T. Grant and Liberty Insurance in the amount of $1,500 and between appellee and Funtime Nursery and Travelers in the amount of $3,000. The case proceeded to trial as to the liability of appellants/def end-ants, Leisure Group and Hartford Insurance. Final judgment was entered against them for $10,000. Appellants contend that the trial court erred in denying their motion for a setoff against the judgment.

We hold that appellants were entitled to have the total amount of the settlements deducted from the damages awarded by the jury to appellee. If a defendant demonstrates to the court that the plaintiff has released a codefendant in consideration of partial satisfaction of the damages sought the amount stipulated by the release is to be set off from the amount of a judgment returned in favor of the plaintiff. Section 768.041(2), Florida Statutes (1975).

It is not necessary, however, in this case to deduct the full $4,500 from the judgment. During trial appellants’ counsel asked appellee if she had filed a suit against Funtime Nursery alleging negligent supervision of her son which she subsequently settled. Appellee responded over her attorney’s objection that she had. Appellee’s counsel on later examination asked her how much she had received from the settlement:

Q How much — let’s hear it, Mary, how much did you collect from this nursery school?
A What did I get out of it?
Q Yeah.
A A thousand—
Q A thousand dollars?
A —thirty-five dollars.
Q Okay. You got a thousand dollars, is that right?
A A thousand and thirty-five, I believe it was.

In closing arguments appellee’s counsel suggested to the members of the jury that they deduct that amount to reach an award of damages. Absent a showing on appeal by appellants to the contrary we assume that the jury did so. Nonetheless, since the jury knew nothing of the settlement with W. T. Grant nor the full amount of the settlement with Funtime Nursery a partial setoff is warranted.

Accordingly, we modify the $10,000 judgment by reducing it to $6,535, which is $10,000 less the difference between $4,500 and $1,035. The judgment as modified is

AFFIRMED.

GRIMES and SCHEB, JJ., concur.

      . Although it is error to introduce evidence before a jury of a release of one of several tortfeasors, prejudice has not been shown to result, and it is harmless. Furthermore, both parties could be said to have invited error since appellant initially brought the subject to the jury’s attention, and appellee reminded the jury of the settlement in closing arguments.


source: Caselaw Access Project

author: SMITH, Judge.

license: Public Domain

text:
    Charles CASTOR, Appellant, v. STATE of Florida, Appellee.
    No. EE-91.
    District Court of Appeal of Florida, First District.
    Oct. 28, 1977.

      Michael J. Minerva, Public Defender, Tallahassee, for appellant.
    Robert L. Shevin, Atty. Gen., and Wallace E. Allbritton, Asst. Atty. Gen., Tallahassee, for appellee.
   SMITH, Judge.

A conviction for murder in the-third degree. Defense counsel did not clearly request that the jury be recharged on excusable and justifiable homicide when the court recharged the jury on the degrees of murder and manslaughter. Hedges v. State, 172 So.2d 824 (Fla.1965) is therefore inapplicable. The sentencing judge, who was not the trial judge, acted within his authority under Fla.R.Crim.P. 3.700(c) by taking into consideration the jury’s verdict of guilt, the presentence investigation report and the prosecutor’s supplementary description of the offense. Appellant’s explanation at the sentencing, which amounted to a plea of self-defense, had been rejected by the jury. Accordingly, the sentencing judge was not required to delve further into the record to familiarize himself with the case. McCoy v. State, 344 So.2d 250 (Fla.1st DCA 1977). Contrast Caplinger v. State, 271 So.2d 780 (Fla.3d DCA 1973). No other error appears.

AFFIRMED.

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


author: MELVIN, Judge.

text:
    Clifton Kelly MASSEY, Petitioner, v. STATE of Florida, Respondent.
    No. HH-242.
    District Court of Appeal of Florida, First District.
    Oct. 28, 1977.
    Clifton Kelly Massey, in pro per.
    Robert L. Shevin, Atty. Gen., and George R. Georgieff, Asst. Atty. Gen., for respondent.
   MELVIN, Judge.

By Petition for Writ of Habeas Corpus, petitioner-defendant challenges the validity of a ten-year sentence “at hard labor” imposed upon him August 13, 1970, in the Circuit Court of Bradford County, Florida, for the offense of forgery and uttering a forgery (Case No. 2270). He urges that the offense is a third degree felony and that the maximum penalty is five years. Likewise, on August 13,1970, in the same court, in Case Numbers 2271 and 2272, he received concurrent five-year sentences for the offenses of forgery and uttering a forgery, each to be served “at hard labor”. We treat the petition as one to amend said sentences.

' When the petitioner was before the court for judgment and sentence, Section 831.01, Florida Statutes (1969) was applicable and provided a maximum sentence of ten years for such offense.

The provision “at hard labor”, appearing in said sentences, is merely surplusage and the same is hereby stricken as such. McDonald v. State, 321 So.2d 453 (Fla. 4th DCA 1975), and Ussery v. State, 350 So.2d 839 (Fla. 1st DCA 1977). As amended, the sentences referred to are

AFFIRMED.

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


author: DAUKSCH, Judge.

text:
    Harry FLYNN, Appellant, v. STATE of Florida, Appellee. Frank STORY, Appellant, v. STATE of Florida, Appellee.
    Nos. 76-421, 76-482.
    District Court of Appeal of Florida, Fourth District.
    Nov. 1, 1977.

      Stuart R. Mishkin, Miami, for appellants.
    Robert L. Shevin, Atty. Gen., Tallahassee, and Richard P. Zaretsky, Asst. Atty. Gen., West Palm Beach, for appellee.
   DAUKSCH, Judge.

Appellants appeal their conviction and sentence for delivery of cannabis. Their trial was joint and their appeals have been consolidated. In their briefs they have raised eight matters for our consideration. We shall speak to each.

The first point involves the trial court’s refusal to allow a defendant’s testimony as to a discussion had between him and the police informant involved in the setting up of the delivery. Apparently the informant’s father is a house painter and a reserve policeman. The painter and his son came to the Defendant’s residence to discuss the drug transaction. At trial the Defendants asserted the entrapment defense alleging they did what they did only to help out a troubled friend — the informant. To disallow the Defendants to testify about the conversations, as they recalled them, was to remove the heart of their defense. It matters not that the identity of the “confidential” informant was made known to the Defendants prior to trial because the error was not in disallowing the informant’s testimony but in not permitting the Defendants to explain their motives and states of mind at the time of the alleged inducement. The testimony offered was not offered to prove the truth of the informant’s statements but to attempt to show the state of the Defendants’ minds. Brown v. State, 299 So.2d 37 (Fla. 4th DCA 1974). We reverse and remand for a new trial because of this error.

In rebuttal the State called a co-defendant who had previously pleaded guilty. His name was not furnished to the Defendants on discovery although rebuttal witnesses are not excluded from the requirements of Fla.R.Crim.P. 3.220. They must be included if they are among those “persons known to the prosecutor to have information which may be relevant to the offense charged, and to any defense with respect thereto.” Fla.R.Crim.P. 3.220(a)(1) (i). There are various sanctions provided under Fla.R.Crim.P. 3.220(j) which the court has the discretion to impose. Or the court may impose no sanctions if it finds no prejudice to the defendant on account of the non-disclosure. Richardson v. State, 246 So.2d 771 (Fla.1971). But the court must make adequate inquiry into the circumstances surrounding the non-compliance to determine the lack of prejudice. Here the court failed to make inquiry. We reverse on that point as well and remand for retrial. See also Hardison v. State, 341 So.2d 270 (Fla. 2d DCA 1977) and Frazier v. State, 336 So.2d 435 (Fla. 1st DCA 1976). Ramirez v. State, 241 So.2d 744 (Fla. 4th DCA 1970). Lavigne v. State, 349 So.2d 178 (Fla. 1st DCA 1977).

The Appellants next complain of the court’s refusal to direct a judgment of acquittal alleging the State failed to overcome the defense of entrapment. Richert v. State, 338 So.2d 40 (Fla. 4th DCA 1976), holds “. . . when the undisputed testimony of a defendant is the sole basis for an entrapment defense, entrapment is not established as a matter of law but rather is an issue for the jury to decide.” The facts in Richert, supra, are stronger for the defense. We reject Appellants’ contention on this point based on the evidence in this record.

The next point concerns the prosecutor’s questions and comments about a defendant’s not having told “officially” (other than his lawyer) of his entrapment. A possible oblique reference to a prior invocation of the privilege to refuse to vocally incriminate oneself. Royal v. State, 347 So.2d 742 (Fla. 4th DCA 1977). Prosecutors cannot do this and courts cannot allow it to be done.

The next point involves various alleged improper conduct by the prosecutor including laughing and alleged improper remarks. No trial is sterile and no lawyer can be expected to be a model, stone-faced throughout. Suffice it to say we, like the prosecutor, might have chuckled ourselves when defense counsel, after objection, changed his leading question to a doubly leading question. The remarks were not improper. Objections to them were sustained. No curative instructions were requested.

Next, the court said on voir dire of the jurors: “Guilty or not guilty, that’s the question you answer.” These remarks do not fall to the depths of error found in Kozakoff v. State, 323 So.2d 28 (Fla. 4th DCA 1975), so we decline the invitation to reverse on this point but note them as such to be avoided. An “Allen Charge” or any approach to it can only be made in limited circumstances. Allen v. United States, 164 U.S. 492, 17 S.Ct. 154, 41 L.Ed. 528 (1896). Certainly not on voir dire. As this trial judge was urged in Kozakoff, supra, to consider the possibility of misstatement resulting from informal instructions to the jury we must again implore a strict adherence to the requisite formality.

The next point involves remarks of the trial judge. First, during voir dire the defense attorney asked a question which the juror did not understand. While reasking the question the court interrupted and said,

“You know something. This jury is going — I’m going to submit one issue to them, a simple issue. Ladies and Gentlemen, it’s whether or not the state has proven these two men or one of them or either of them did what they are charged with. Real simple. Ain’t no hypothetical or no question about that. That’s the issue submitted.
“That’s the issue of this case that’s going to be submitted. That’s the whole story. That’s all I’m going to try. I ain’t going to try no hypothetical case on cloud nine.”

The issues to be submitted to a jury are rarely that simple, especially to the jury. Even rarer are the issues capable of being discerned before the trial is completed. This comment of the judge came after defense counsel was attempting to explain an affirmative defense to the juror on voir dire and might very well indicate the issue is not so simple. Because we have already reversed and remanded we need not go any further into the remaining comments of the judge during trial about which the Appellants complain. But it is noted Appellants did not object to the comments at trial and we do not find them to be fundamental error requiring reversal. White v. State, 348 So.2d 368 (Fla. 3d DCA 1977)

Last, Appellants say their sentence was too severe especially since the co-defendant’s was for a lesser term. They cite a death case, Slater v. State, 316 So.2d 539 (Fla.1975), which is hardly relevant here. As Justice England mentioned in McArthur v. State, 351 So.2d 972 (Fla.1977), opinion filed September 30, 1977, by quoting Woodson v. North Carolina, 428 U.S. 280, 305, 96 S.Ct. 2978, 2991-92, 49 L.Ed. 944, 961 (1976), “. . . the penalty of death is qualitatively different from a sentence of imprisonment, however long.” Also, we don’t review lawful sentences.

REVERSED and REMANDED.

ANSTEAD and LETTS, JJ., concur.


author: FRANK N. KANEY, Associate Judge.

text:
    Beatrice G. BROWNING, as the City Clerk of the City of Plantation, Appellant, v. Dennis J. WALTON, Appellee.
    No. 76-1241.
    District Court of Appeal of Florida, Fourth District.
    Nov. 1, 1977.
    Donald J. Lunny, Fort Lauderdale, for appellant.
    Frank E. Hamilton, III of Hamilton, Douglas & Bennett, P. A., Fort Lauderdale, for appellee.
   FRANK N. KANEY, Associate Judge.

This case is factually similar to the Second District Court of Appeal’s case of Warden v. Bennett, 340 So.2d 977 (Fla. 2d DCA 1976), and our own case of Clark v. Walton, 351 So.2d 353 (Fla. 4th DCA 1977).

Appellant is the Clerk of the City of Plantation who has control of the city’s personnel files. Appellee is a union organizer who wants the names and home addresses of the city’s employees. He obtained a Writ of Mandamus when Appellant refused to provide him with them even though he had offered to pay any costs incurred.

The city had distributed to its employees a form requesting the city to maintain the confidentiality of all material in their personnel files. The addresses of all those who signed the form were not provided to Ap-pellee.

Appellant cited Wisher v. News-Press Publishing Co., 310 So.2d 345 (Fla. 2d DCA 1975), in which the Second District Court of Appeal said personnel records were confidential. That decision was reversed by our Supreme Court at 345 So.2d 646. While not allowing the news media in that case an unrestricted fishing expedition into all the county personnel files, the Supreme Court did direct the county administrator to provide the information sought from the files.

The Appellant seeks to have this court judicially engraft the “self-imposed” exemption to the Public Records Act, Section 119.07(2), Florida Statutes (1975).

This we cannot do. The purpose of this Statute was to open the records so the citizens could discover what their government was doing. If we were to allow such exemption before long the imposition of that exemption might well become a condition of employment. This would plainly thwart the purpose of the Statute. A trash collector with knowledge of wrongdoing in the Trash Department is more likely to reveal what he knows to an investigator in the privacy of his own Florida room than he is under the watchful eye of his foreman at the Trash Department offices.

We have considered the other contentions of the Appellant and find them to be unpersuasive.

The Final Judgment is AFFIRMED.

DOWNEY and DAUKSCH, JJ., concur.


author: PER CURIAM.

text:
    Charles McCASKILL, Appellant, v. STATE of Florida, Appellee.
    No. 76-1516.
    District Court of Appeal of Florida, Fourth District.
    Nov. 1, 1977.
    Richard L. Jorandby, Public Defender, Stuart A. Young, Asst. Public Defender, Frank B. Kessler, Chief, Asst. Public Defender, Appellate Division, Randall Decker, Legal Intern, West Palm Beach, for appellant.
    Robert L. Shevin, Atty. Gen., Tallahassee, and Robert L. Bogen, Asst. Atty. Gen., West Palm Beach, for appellee.
   PER CURIAM.

The sentence imposed by the trial court is hereby modified and reduced to a total of five years, two years in prison followed by three years of probation. The terms of probation are affirmed. See Pace v. State, 350 So.2d 1075, Fla. 4th DCA No. 76-2010, opinion filed October 11, 1977.

Affirmed as modified.

ANSTEAD and DOWNEY, JJ., and SCHWARTZ, ALAN R., Associate Judge, concur.


author: PER CURIAM. DAUKSCH, Judge,

text:
    Patrick KELLER, Appellant, v. STATE of Florida, Appellee.
    No. 76-1663.
    District Court of Appeal of Florida, Fourth District.
    Nov. 1, 1977.
    Richard L. Jorandby, Public Defender, Craig S. Barnard, James K. Green and Frank B. Kessler, Asst. Public Defenders, West Palm Beach, for appellant.
    Robert L. Shevin, Atty. Gen., Tallahassee, and Robert L. Bogen, Asst. Atty. Gen., West Palm Beach, for appellee.
   PER CURIAM.

Appellant was convicted of a third degree felony and sentenced to 2V2 years in prison and 4V2 years on probation thereafter. The maximum period to which he could be sentenced is 5 years therefore the probation portion of his sentence is reduced from 41/2 years to 2V2 years. Moore v. State, 324 So.2d 690 (Fla. 1st DCA 1976); Watts v. State, 328 So.2d 223 (Fla. 2d DCA 1976); Magnin v. State, 334 So.2d 638 (Fla. 2d DCA 1976); Holmes v. State, 343 So.2d 632 (Fla. 4th DCA 1977); Heatherly v. State, 343 So.2d 54 (Fla. 4th DCA 1977).

AFFIRMED AS MODIFIED.

DOWNEY, J., and BURNSTEIN, MIETTE K., Associate Judge, concur.

DAUKSCH, J., concurs specially, with opinion.

DAUKSCH, Judge,

concurring specially:

I concur in the result but note this case has the same probation requirement I deplored in Pace v. State, (Fla. 4th DCA, Case No. 76-2210, Opinion filed June 24, 1977). See also dissent upon denial of rehearing, Opinion filed October 11, 1977.


text:
    Issac Melvin WALKER, Appellant, v. STATE of Florida, Appellee.
    No. 76-1715.
    District Court of Appeal of Florida, Fourth District.
    Nov. 1, 1977.
    Richard L. Jorandby, Public Defender, Joseph R. Atterbury, Legal Intern, and James L. Eisenberg, Asst. Public Defender, West Palm Beach, for appellant.
    Robert L. Shevin, Atty. Gen., Tallahassee, and Marsha G. Madorsky, Asst. Atty. Gen., West Palm Beach, for appellee.
   DAUKSCH, Judge.

Appellant, over eighteen years of age, was charged with the crime of attempted sexual battery upon a person eleven years of age or younger. Section 777.04(1) and Section 794.011(2), Florida Statutes (1975). At trial the State proved the person was older than eleven years and that she acted in a voluntary manner while the Defendant attempted a sexual act. In fact, she charged money for her participation. The trial court granted a Judgment of acquittal as to the crime charged but permitted, over objection, the trial to continue for the jury to determine whether the Defendant committed an attempted lewd assault as proscribed in Section 800.04, Florida Statutes (1975). The jury was unable to reach a verdict so a mistrial was declared. The Defendant was again brought to trial on the same indictment, attempted sexual battery upon a person under eleven, and the jury was given the case as a case of lewd assault. The Defendant was convicted of “handling & fondling a child under the age of 14 years in a lewd, lascivious or indecent manner.” This is essentially the wording of Section 800.04, Florida Statutes (1975). It is commonly called lewd assault. According to DeLaine v. State, 262 So.2d 655 (Fla. 1972), lewd assault is not a necessarily lesser included offense.

Because lewd assault is not a necessarily lesser included offense then the court cannot charge the jury in regard to that crime unless the facts support such a charge and the accusatory pleading alleges all the elements of the lesser included offense. Brown v. State, 206 So.2d 377 (Fla.1968). The accusatory pleading in the case at bar charges the Appellant “. did attempt to commit a Sexual Battery upon a person eleven (11) years of age or younger, . . .” The requisite allegations under the Lewd Assault Statute, Section 800.04, Florida Statutes (1975), are not there. That the State chose to go with those allegations even after the mistrial and the evident lack of proof is a curious circumstance, indeed. The Judgment and Sentence are REVERSED.

ANSTEAD and MOORE, JJ., concur.


text:
    Herman MURPHY, Appellant, v. Elaine MURPHY, Appellee.
    No. 77-942.
    District Court of Appeal of Florida, Fourth District.
    Nov. 1, 1977.
    Arthur M. Wolff of Wolff & Gora, Fort Lauderdale, for appellant.
    No appearance for appellee.
   DAUKSCH, Judge.

After the father was awarded custody of his son in a dissolution judgment the mother complained she was unable to visit with her son since the father moved from Bro-ward County to Port Walton Beach, Florida. She petitioned the court “. . . for an order modifying and extending the visitation rights . . . ” The father did not appear at the hearing on the mother’s petition and the court entered an Order changing the custody from the father to the mother.

The trial court has no authority to change the custody, absent an emergency for the welfare of a child in imminent need, unless a properly pleaded petition for change of custody is filed and the respondent given an opportunity to respond to the request for change of custody and a hearing had. if called for, with the necessary proof adduced. DeWalt v. DeWalt, 305 So.2d 792 (Fla. 4th DCA 1975).

The Order changing custody is REVERSED.

ALDERMAN, C. J., and MOORE, J., concur.


text:
    Gilberto S. PEREZ, Appellant, v. The STATE of Florida, Appellee.
    No. 75-1889.
    District Court of Appeal of Florida, Third District.
    Nov. 1, 1977.
    Bennett H. Brummer, Public Defender and Kurt L. Marmar, Asst. Public Defender, for appellant.
    Robert L. Shevin, Atty. Gen., and Ira N. Loewy, Asst. Atty. Gen., for appellee.
    Before PEARSON, HAVERFIELD and NATHAN, JJ.
   PER CURIAM.

Defendant, Gilberto Perez, takes this belated appeal to review his conviction for rape based upon his guilty plea. The salient facts are as follows:

Defendant was indicted for rape and initially pled not guilty. Subsequently, through court appointed defense counsel, he announced he was withdrawing his previous plea and tendered a plea of guilty. He was questioned extensively by defense counsel, the prosecutor and the trial judge as to the voluntariness of his guilty plea. Defendant, who at the time was 19 and had completed two years of high school, responded that he was pleading guilty because he was guilty; he understood his rights and the nature of the charges against him; was advised as to his defenses; was neither threatened nor promised anything to change his plea and was satisfied with his attorney. Thereupon, the judge determined that the guilty plea was knowingly and voluntarily entered and accepted it. The prosecutor with the express consent of defense counsel then filed transcripts of the preliminary hearing to further establish a factual basis for defendant’s plea and a presentence investigation was ordered. When the defendant appeared in court with his counsel for sentencing, the following colloquy occurred:

* * * * * *
“Call the defendant Gilberto Sierra Perez first.
“Is his counsel here?
“MR. GARBER: Yes, sir.
“THE COURT: You, Gilberto Sierra Perez, have entered a plea of guilty to the crime of rape.
“The Court does now adjudge that you, Gilberto Sierra Perez are and stand guilty of the crime of rape.
“Having you anything to say why sentence should not be pronounced against you?
“DEFENDANT PEREZ: She was not raped by me at any time.
“THE COURT: Do you have anything else you wish to say?
“MR. GARBER: Will the Court accept a statement from counsel on behalf of the defendant?
“THE COURT: Yes, sir.
“MR. GARBER: The record should reflect that the rights of this defendant were explained by the Court and the State and myself in the presence of the interpreter who simultaneously interpreted the statements of the Court and defense.
“The defendant did freely and voluntarily enter his plea to the charge set forth in the indictment.
“By way of mitigation, I would like to briefly comment and relate to the Court some facts which I think should be of interest to the Court, prior to the imposition of sentence in this cause.”
******

After listening to mitigating arguments, the judge imposed a 20 year sentence.

In this belated appeal defendant urges as reversible error the failure of the trial judge to make inquiry into defendant’s assertion made subsequent to his guilty plea but prior to imposition of his sentence that he was not guilty thereby depriving him of due process of law. We cannot agree.

The trial judge made the requisite inquiry into the voluntariness of and understanding by the defendant of the significance of his guilty plea, and the transcripts of the preliminary hearing provided a factual basis for the plea. Thus, the judge properly accepted the guilty plea. See Fla.R.Crim.P. 3.170(j) and Williams v. State, 316 So.2d 267 (Fla.1975); Mower v. State, 308 So.2d 586 (Fla. 1st DCA 1975); Moore v. State, 308 So.2d 590 (Fla. 1st DCA 1975). Defendant now argues that the judge should have made a second inquiry when he stated during the sentencing hearing that he did not rape the girl. A factual basis for the guilty plea was determined by the judge at the time of the entry of the guilty plea and we find the subsequent denial of the commission of the offense insufficient under the circumstances to negate this prior determination. Cf. Hall v. State, 309 So.2d 226, 228 (Fla. 2d DCA 1975). We further note that no motion to withdraw the guilty plea was made by the defense.

Affirmed.


text:
    Charles ADAMS, Appellant, v. STATE of Florida, Appellee.
    No. 77-621.
    District Court of Appeal of Florida, Second District.
    Nov. 2, 1977.
    Jack 0. Johnson, Public Defender, and A. J. Melkus, Special Asst. Public Defender, Bartow, for appellant.
    Robert L. Shevin, Atty. Gen., Tallahassee, and Charles Corees, Jr., Asst. Atty. Gen., Tampa, for appellee.
   PER CURIAM.

Charles Adams appeals the revocation of his probation. He was charged with five separate violations of the conditions of his probation, but the trial court in the order of revocation found only a violation of condition (4), which required appellant to “live and remain at liberty without violating any law.” Virtually no evidence of appellant’s violation of this condition was adduced at the probation revocation hearing, the sole evidence being the allegation that appellant was arrested on a charge of petit larceny. This is clearly insufficient. Crum v. State, 286 So.2d 268 (Fla. 4th DCA 1973). The order revoking appellant’s probation must be and is

REVERSED.

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


author: SMITH, Acting Chief Judge.

text:
    Floyd M. TAYLOR, Appellant, v. Jane TAYLOR, Appellee.
    No. EE-89.
    District Court of Appeal of Florida, First District.
    Nov. 4, 1977.
    Charles A. Sorenson, of Forbes & Meide Law Offices, Jacksonville, for appellant.
    Clarence M. Wood, of Wood, Donaldson & Godfrey, Jacksonville, for appellee.
   SMITH, Acting Chief Judge.

The substantial fee money award by the trial court is not impeached by the record brought to us and is attributable to substantial services necessarily rendered in overcoming appellant’s apparent duplicity. Chaachou v. Chaachou, 135 So.2d 206 (Fla.1961).

AFFIRMED. Appellee’s motion for an allowance of fee money for the services of her attorney on appeal is PROVISIONALLY GRANTED. Dresser v. Dresser, 350 So.2d 1152 (Fla. 1st DCA 1977).

ERVIN and MELVIN, JJ., concur.


text:
    Victor R. KNOBLOCK, Appellant, v. Paree W. KNOBLOCK, Appellee.
    No. FF-7.
    District Court of Appeal of Florida, First District.
    Nov. 4, 1977.
    Harvey R. Klein and H. Randolph Klein, Ocala, for appellant.
    Mary B. Steddom of O’Neill & Steddom, Ocala, for appellee.
   SMITH, Acting Chief Judge.

Substantial competent evidence supports the trial court’s award to appellee wife of special equities in certain property held in the husband’s name alone, those properties having been acquired with funds withdrawn from a joint bank account to which both husband and wife substantially contributed. See Razzano v. Razzano, 307 So.2d 894 (Fla. 1st DCA 1975).

AFFIRMED.

ERVIN and MELVIN, JJ„ concur.


text:
    Vernon FLOWERS, Appellant, v. STATE of Florida, Appellee.
    No. FF-357.
    District Court of Appeal of Florida, First District.
    Nov. 4, 1977.

      Michael J. Minerva, Public Defender, and Louis G. Carres, Asst. Public Defender, Tallahassee, for appellant.
    Robert L. Shevin, Atty. Gen., and Richard W. Prospect, Asst. Atty. Gen., Tallahassee, for appellee,
   SMITH, Judge.

Flowers appeals from the trial court’s order denying his Rule 3.850 motion to set aside an illegal sentence. The issue is whether, as Flowers contends, he was sentenced on February 18, 1976, following the jury verdict, and so could not be sentenced to a greater term two days later.

On February 18,1976 a jury found Flowers guilty of sending a written threat to kill or injure another — both a circuit judge and a social worker — in violation of Section 836.10, Florida Statutes (1975). The offense was unquestionably grave, but the trial judge noted Flowers’ history of mental disorder and was deeply and properly concerned to fashion, if possible, a sentence other than simple punitive incarceration. The court stated:

Now, Mr. Flowers, you may very well need continued help for your memory loss and these other things you know you’ve got and I’m going to see if I can help you do it this way.
Saying nothing sufficient, it is the judgment and sentence of this Court that you, Vernon Flowers, be delivered to the proper official of the Division of Offender Rehabilitation, there to serve the full term and period of five years, provided that upon service of 250 days you shall be released and placed under the supervision of the Florida Probation and Parole Commission for a term and period of ten years. You shall receive credit for the two hundred and fifty days in jail awaiting trial. It will be a special condition of your release that you voluntarily accept such out-patient treatment for mental or physical problems as is directed for you by your probation supervisor.
Do you understand what I am saying?
DEFENDANT: Yes, sir, but I don’t understand, now, the first part. I’m a little hard — you know. Now, five years and what?
THE COURT: It’s my intention that you serve five years in the penitentiary if you mess up on your probation.
DEFENDANT: Well, you are going to put me on probation and if I mess up I’ll get five years in prison? I understand.
THE COURT: That’s what I’m doing. That’s what those words come down to. There is a special condition, Mr. Flowers, on this, that you take and accept such medical treatment as your probation and parole officer tells you. Do you understand that?
DEFENDANT: Yes, sir.
THE COURT: Now, Mr. Flowers, I’m going to direct the Sheriff to keep you in custody until tomorrow, so that I can discuss it in some detail with the Florida Probation and Parole Commission prior to releasing you. Tomorrow, if all goes well, you will be released.
(Thereupon, the Defendant was fingerprinted in open court and a written adjudication of guilt signed by the Court.)

The “written adjudication of guilt” does not appear of record on February 18.

By the next day, February 19, Flowers had announced

. that he did not wish to be put under any probationary activity. He didn’t want the state to be his father.

On February 20, with Flowers physically restrained on the courtroom floor by four deputy sheriffs, the court announced

The Defendant offering no cause, the court . . . being of the opinion that there is no cause shown not to proceed, I, having adjudged Vernon Flowers guilty of the offense, commit you, Vernon Flowers, to the full term and period of fifteen years to the Department of Offender Rehabilitation of the State of Florida. I request and .direct the proper officials of the Department of Health and Rehabilitative Services to take note of this case and of the need of this Defendant and to administer such treatment as is needed to him .

Thereupon, the form of judgment and sentence authorized by Rule 3.986 was filed for record by the clerk. It made no reference to the proceedings of February 18 and it unequivocally imposed a straight fifteen year sentence. The document bore Flowers’ fingerprints placed there February 18 and concluded:

DONE AND ORDERED in Open Court at Starke, Bradford County, Florida, this 48 day of Feb.. A.D. 1976. 20th

I HEREBY CERTIFY that the above and foregoing fingerprints on this Judgment and Sentence are the fingerprints of the defendant, Vernon H. Flowers and that they were placed thereon by said defendant in my presence in Open Court this date.

(signed) R. A. Green. Jr. CIRCUIT JUDGE

We find that the proceedings in open court on February 18 constituted a sentence, not a conditional proposal to sentence, and consequently that the February 20 proceedings must be considered a resen-tence for a longer term. Criminal Rule 3.700 provides in part:

(a) The term sentence means the pronouncement by the Court of the penalty imposed upon a defendant for the offense of which he has been adjudged guilty.
(b) Every sentence or other final disposition of the case shall be pronounced in open court. The final disposition of every case shall be entered in the minutes in courts in which minutes are kept, and shall be docketed in courts which do not maintain minutes.

Rule 3.721 provides:

The sentencing court shall ensure that a record of the entire sentencing proceeding is made and preserved in such a manner that it can be transcribed as needed.

It appears that every element of a “sentence” was supplied by the proceeding on February 18, as evidenced by the transcript. Sentence was pronounced on the defendant in open court. A record of the proceeding was made and preserved for transcription. The form of judgment and sentence authorized by Rule 3.986 was partially completed but was not filed. It evidently was retained by the sentencing judge for filing after Flowers’ conversation with the probation officer concerning treatment which was the special condition of probation. Neither Rule 3.986 nor any other rule makes the completion and filing of the authorized form of judgment and sentence a condition to a valid sentence. The judgment of guilt must of course “be rendered in open Court and in writing, signed by the judge, filed, and recorded.” Fla.R.Crim.P. 3.670. That requirement should not be read as suspending the effect of the sentence pronounced in open court until the paper is filed, or as authorizing the imposition of a greater sentence at any time before the paper is filed. Rule 3.986, which alone prescribes a written sentence, simply provides:

The following uniform Judgment and Sentence form is sufficient. Variation from this form does not void the judgment, sentence, and fingerprints that are otherwise sufficient.

The attempted resentencing of Flowers to imprisonment for fifteen years, following his rejection or violation of the special term of probationary release from the five year sentence pronounced February 18, placed Flowers twice in jeopardy and was illegal. Troupe v. Rowe, 283 So.2d 857 (Fla.1973); Ex parte Lange, 85 U.S. (18 Wall.) 163, 21 L.Ed. 872 (1874); United States v. Benz, 282 U.S. 304, 51 S.Ct. 113, 75 L.Ed. 364 (1931).

On February 20, after previously sentencing Flowers to confinement for five years and placing him immediately on probation, subject to a special condition, the sentencing judge was without power to do more than revoke Flowers' probation for his violation of the stated condition.

We are keenly aware that by this decision we belatedly have found merit in Flowers’ argument which was presented, considered and rejected by us on his direct appeal. On October 11,1976, we affirmed the judgment and the February 20, 1976 sentence without opinion. Flowers v. State, 338 So.2d 844 (Fla. 1st DCA 1976). Considerations of res judicata would ordinarily require us as well as the trial court to adhere to our decision. We consider that we are at liberty to revisit the critical issue, and to decide it differently, because of two unique circumstances in this case:

First, the trial court’s resentencing error and our own were fundamental errors which deprived Flowers of a constitutional right not to be placed twice in jeopardy for the same offense. See O’Neal v. State, 308 So.2d 569 (Fla.2d DCA 1975). We decline to watch helplessly in the hope that our decision here may create decisional conflict that would authorize the Supreme Court to correct our former error, or in the hope that a federal court will do so.

And second, two months after our affirmance but apparently without knowledge of it, the sentencing judge entered an order granting Flowers’ Rule 3.850 motion to vacate the February 20, 1976 sentence, and ordered:

. . Counsel for Defendant and the State of Florida are directed to compose a certified question, the contents of which are suitable to the Defendant, State of Florida and this Court on the question of whether the Court may exceed five years in resentencing the Defendant in this cause. This matter should be expedited in the interest of justice.

The trial court was entirely correct in later concluding that his action was foreclosed by our affirmance and principles of res judica-ta. The record before us does not clearly indicate when and how, but the trial judge set aside his order vacating the February 20, 1976 sentence, thus reinstating the fifteen year sentence. We cannot overlook the significance of the sentencing judge’s wish to reconsider the matter.

Because of these considerations, so unusual as not to usher in a crushing torrent of second appeals of cases already decided by this court, we are persuaded that we are at liberty to act.

The judgment is undisturbed. The sentence of February 20, 1976 is VACATED and the case is REMANDED to the trial court for consideration of revoking the probation ordered by the trial court on February 18, 1976, and imposing confinement for up to five years with credit for time served, or for such other proceedings as may be appropriate.

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


author: GRIMES, Acting Chief Judge.

text:
    Frances L. LINDQUIST, Appellant, v. Elmer W. LINDQUIST, Appellee.
    No. 76-1194.
    District Court of Appeal of Florida, Second District.
    Nov. 4, 1977.
    Gerald C. Surfus, of Stinnett, Surfus & Martin, P.A., Sarasota, for appellant.
    Gregory S. Hartman, of Swisher & Voigt, P.A., Sarasota, for appellee.
   GRIMES, Acting Chief Judge.

This is an appeal from a judgment of dissolution. The only point which merits discussion concerns the disposition of a mobile home.

The parties were married on January 11, 1975. Shortly thereafter, the husband used $6,000 of his own funds to purchase a mobile home and caused it to be titled in the names of himself and his wife. The parties separated several months later, and a suit for dissolution was filed on September 8, 1975. In the final judgment the court awarded the mobile home to the husband.

This court recently held that where a wife’s separate funds were used to purchase property held as tenants by the entirety subsequent to the adoption of Florida’s 1968 Constitution but before the Supreme Court’s opinion in Ball v. Ball, 385 So.2d 5 (Fla.1976), there existed a presumption that a gift had been made. While there has been a split of authority in the case of a wife’s separate funds, until the Supreme Court rendered its Ball opinion the use of a husband’s separate funds to acquire property held as tenants by the entirety has always resulted in the presumption of a gift.

This suit was filed prior to the date of the Ball opinion. Therefore, since the record is totally devoid of any evidence to rebut the presumption of a gift, the judgment must be reversed insofar as it deprives the wife of her one-half interest in the mobile home. See Section 689.15, Florida Statutes (1975). Otherwise, the judgment is affirmed.

RYDER, J., and McNULTY, JOSEPH P. (Ret.), Associate Judge, concur.

      . Powell v. Powell, 349 So.2d 841 (Fla.2d DCA 1977).

      . Compare Davis v. Davis, 282 So.2d 655 (Fla.4th DCA 1973), with Hegel v. Hegel, 248 So.2d 212 (Fla.3d DCA 1971).

      . Powell v. Metz, 55 So.2d 915 (Fla.1952); Strauss v. Strauss, 148 Fla. 23, 3 So.2d 727 (1941); Anderson v. Anderson, 153 So.2d 24 (Fla.3d DCA 1963).


text:
    Tommy H. SCOTT, Appellant, v. STATE of Florida, Appellee.
    No. 76-1688.
    District Court of Appeal of Florida, Second District.
    Nov. 4, 1977.
    Jack 0. Johnson, Public Defender, Bar-tow, and Douglas A. Wallace, Asst. Public Defender, Bradenton, for appellant.
    Robert L. Shevin, Atty. Gen., Tallahassee, and Robert J. Landry, Asst. Atty. Gen., Tampa, for appellee.
   PER CURIAM.

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

The judgment and sentence of the court, while indicating the appellant was to receive credit for all time served in jail, does not specifically set forth the period of credit time to be allowed, as required by Section 921.161(1), Florida Statutes (1975). Smith v. State, 310 So.2d 770 (Fla. 2d DCA 1975). In addition, appellant was sentenced to confinement “at hard labor.” To be imprisoned “at hard labor” is improper because no existing state statute provides for its imposition as a sentence for any offense. McDonald v. State, 321 So.2d 453 (Fla. 4th DCA 1975).

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

GRIMES, Acting C. J., SCHEB, J., and McNULTY, JOSEPH P. (Ret.), Associate Judge, concur.


text:
    Johnny Ben KING, Appellant, v. STATE of Florida, Appellee.
    No. 76-1853.
    District Court of Appeal of Florida, Second District.
    Nov. 4, 1977.
    Jack 0. Johnson, Public Defender, Bar-tow, Stephen 0. Rushing, Asst. Public Defender, and Richard D. Muga, Legal Intern, Tampa, for appellant.
    Robert L. Shevin, Atty. Gen., Tallahassee, and Robert J. Landry, Asst. Atty. Gen., Tampa, for appellee.
   PER CURIAM.

The judgment appealed from is affirmed, but this case is remanded for resentencing of appellant. The sentence does not specifically set forth the period of credit time to be allowed as required by Section 921.-161(1), Florida Statutes (1975). Brooks v. State, 349 So.2d 794 (Fla. 2d DCA 1977). Moreover, the phrase “at hard labor” in the sentence is improper. Brooks v. State, supra. The appellant does not have to be present at resentencing.

GRIMES, Acting C. J., SCHEB, J., and McNULTY, JOSEPH P. (Ret.), Associate Judge, concur.


text:
    Hugh Oliver HUNTER, Jr., Appellant, v. STATE of Florida, Appellee.
    No. 76-1889.
    District Court of Appeal of Florida, Second District.
    Nov. 4, 1977.
    Jack 0. Johnson, Public Defender, Bar-tow, and Douglas A. Wallace, Asst. Public Defender, Bradenton, for appellant.
    Robert L. Shevin, Atty. Gen., Tallahassee, and William I. Munsey, Jr., Asst. Atty. Gen., Tampa, for appellee.
   PER CURIAM.

We affirm the order revoking appellant’s probation. However we remand this case for resentencing of appellant. The present sentence does not specify the amount of credit for time served appellant is to receive as Section 921.161(1), Florida Statutes (1975), requires. Brooks v. State, 349 So.2d 794 (Fla. 2d DCA 1977). Moreover, the phrase “at hard labor” in the sentence is improper. Brooks v. State, supra. Appellant need not be present at resentencing.

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


text:
    Jimmie Carl CARTER, Appellant, v. STATE of Florida, Appellee.
    No. 76-1949.
    District Court of Appeal of Florida, Second District.
    Nov. 4, 1977.
    Jack 0. Johnson, Public Defender, Bar-tow, and Wayne Chalu, Asst. Public Defender, Tampa, for appellant.
    Robert L. Shevin, Atty. Gen., Tallahassee, and William I. Munsey, Jr., Asst. Atty. Gen., Tampa, for appellee.
   PER CURIAM.

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

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

GRIMES, Acting C. J., and SCHEB, J., and McNULTY, JOSEPH P. (Ret.), Associate Judge, concur.


author: RYDER, Judge.

text:
    PEACOCK CONSTRUCTION COMPANY, a Florida Corporation, Appellant, v. Henri P. GOULD and Sarah Gould, husband and wife, Appellees.
    No. 77-85.
    District Court of Appeal of Florida, Second District.
    Nov. 4, 1977.
    Gerald W. Pierce of Henderson, Franklin, Starnes & Holt, Fort Myers, for appellant.
    Harry A. Blair, P.A., Fort Myers, for appellees.
   RYDER, Judge.

In this appeal appellant/plaintiff Peacock Construction Company attacks various particulars of a final judgment which foreclosed appellant's mechanics' lien on certain real property owned by appellees/defend-ants, but denied attorney’s fees to appellant and denied appellant’s breach of contract claim for damages (lost prospective profits). The only point requiring discussion is the final judgment’s denial of any attorney’s fees to appellant which we reverse and remand. In all other respects, the final judgment is affirmed.

Count I of appellant’s complaint sought to foreclose its mechanics’ lien on appellees’ real property in the amount of $6,395.81. Appellees answered and raised as an affirmative defense that the lien sought to be foreclosed by appellant was fraudulent, as defined in Section 713.31(2), Florida Statutes (1975). Appellees also filed a counterclaim against appellant for cancellation of the allegedly fraudulent lien.

Following trial by the court, final judgment was entered in favor of appellant/plaintiff, awarding recovery of the full amount sought by appellant on its lien, together with interest and costs, but awarding no attorney’s fees. Appellant contends that the trial court erred in denying attorney’s fges to it, since it was clearly the “prevailing party” within the meaning of Section 713.29, Florida Statutes (1975), which provides:

“In any action brought to enforce a lien under part I of this chapter, the prevailing party shall be entitled to recover a reasonable fee for the services of his attorney, to be determined by the court, which shall be taxed as part of his costs.”

Appellees make a two-fold counterattack. First, no court reporter was present at the hearing on attorney’s fees, and consequently there is no transcript of what transpired. Appellees contend that, absent a record of the hearing, this court has no choice but to affirm the denial of any attorney’s fees.

Appellant responds to this preliminary issue by saying the fact that the fee hearing was not reported does not preclude appellate review in the instant case because the error is apparent on the face of the present record. We agree with appellant. The question presented is purely a legal one (the merits of which will be discussed momentarily), not a factual question requiring a review of conflicting evidence. Our examination of the record available to us reveals several items which bear on the propriety, or lack thereof, of the trial court’s denial of attorney’s fees to appellant. These items include the pleadings, the final judgment itself, a memorandum of law filed by counsel for appellees after the fee hearing at the request of the trial court, and the transcript of the hearing on appellant’s motion for rehearing.

In this regard the First District Court of Appeal stated in Turnipseed v. Turnipseed, 158 So.2d 808 (Fla.1st DCA 1963):

“The failure of counsel for appellant to preserve a record of that part of the proceedings pertaining to his claim for attorney’s fees does not preclude him from demonstrating error, if any, apparent on the face of the available record, including the recitations of fact contained in the orders and decrees forming a part of that record.” 158 So.2d at 812.

We now reach the merits of the trial court’s denial of attorney’s fees to appellant. The record discloses that appellant presented expert testimony at the hearing on attorney’s fees that a reasonable fee was $2,500.00. The expert witness, attorney William Keyes, testified that the figure of $2,500.00 included services rendered by appellant’s attorney both in the foreclosure of appellant’s claim of lien and also in defense of appellees’ counterclaim for cancellation of said lien. Attorney Keyes further testified that he could not break down the attorney’s fees between the work done on the counterclaim and the lien foreclosure.

We thus confront the second prong of appellees’ argument in support of the denial of any attorney’s fees to appellant. Appel-lees assert that the terms of Section 713.29, Florida Statutes (1975), quoted above, provide for recovery of a reasonable attorney’s fee only “(i)n any action brought to enforce a lien under part I of this chapter . . .” Since appellant’s witness testified that he could not break down his estimate of fees between the enforcement of appellant’s lien and the defense of appellees’ counterclaim, then that testimony is fatally defective and appellant can recover no attorney’s fees whatsoever. With this conclusion, we cannot agree.

Appellant clearly was the “prevailing party” within the meaning of the aforesaid statute in recovering the full amount of its lien. Furthermore, appellant prevailed as to the counterclaim brought by appellees to cancel the very lien which appellant sought to enforce. This counterclaim was brought on the ground that said lien was fraudulent, and appellees asserted that same ground as an affirmative defense to appellant’s complaint for foreclosure of said lien. Therefore, it is our view that the legal services rendered by appellant’s attorney in the successful defense of appellees’ counterclaim were necessary to and, indeed, part and parcel of appellant’s prevailing on its action for enforcement of its mechanics’ lien. Thus, the facts, of the instant case differ in this vital respect from certain cases cited by appellees, including this court’s decision in Jackson v. Hatch, 288 So.2d 564 (Fla.2d DCA 1974), holding that the prevailing party (in that case the defendant) could recover attorney’s fees only with respect to the lien foreclosure aspect of the case and not for the separate claims surrounding in contract or quantum meruit.

Therefore, we believe that the trial court was presented with competent, substantial evidence relating to reasonable attorney’s fees for services rendered by appellant’s attorney in the mechanics’ lien aspect of this case, and we hold that it was reversible error for the trial court to deny them to appellant as the prevailing party. In this respect we reverse and remand for further proceedings not inconsistent herewith. In all other respects the judgment appealed from is affirmed.

Affirmed in part; reversed in part; and remanded.

BOARDMAN, C. J., and SCHEB, J., concur.

      . Appellees’ memorandum of law contains a synopsis of what transpired at the fee hearing. We note that appellees do not now attempt to deny the accuracy of their factual synopsis.

      . The expert witness also testified that his estimate of attorney’s fees did not include the prosecution of the breach of contract count of the complaint, which the trial court determined adversely to appellant and which we affirm herein.


text:
    WILLIAM H. GULSBY, INC., Appellant, v. MILLER CONSTRUCTION COMPANY, INC., OF LEESBURG, et al., Appellees.
    No. 77-177.
    District Court of Appeal of Florida, Second District.
    Nov. 4, 1977.
    Christy F. Harris, Lakeland, for appellant.
    George H. Russ of Rantson E. Davis, P.A., Leesburg, for appellees.
   RYDER, Judge.

Appellant, William H. Gulsby, seeks a money judgment of $10,317.14 against ap-pellees/defendants Miller Construction Company, Inc., of Leesburg and the American Insurance Company pursuant to bond provisions in Section 255.05, Florida Statutes (1975). Appellant alleged that appel-lee Miller was the general contractor for the construction of the Southwest Florida Water Management District headquarters at Brooksville and that appellee American Insurance Company was the surety for the construction of said project. Appellant further alleged that it had supplied labor and materials to several of appellee Miller’s subcontractors and that Miller failed to disburse contract funds properly to its subcontractors or failed to insure proper disbursement to appellant Gulsby by its subcontractors.

Appellees filed a motion to dismiss, raising the issue of appellant’s remoteness as a sub-sub-sub-subcontractor in connection with the construction project and asserting that the Florida courts have construed Section 255.05 to provide protection only to claimants furnishing materials or labor to the contractor or his subcontractor and have refused to extend the protection to others more remote.

After the hearing, the trial court entered an order finding appellant a sub-sub-sub-subcontractor, that appellant was too remote and ordered the appellant’s complaint dismissed with prejudice citing our decisions in City of Fort Lauderdale v. Hardrives Company, 167 So.2d 339 (Fla.2d DCA 1964) and North Broward Hospital District v. Crosewell, 188 So.2d 54 (Fla.2d DCA 1966). This appeal follows from the entry of said order.

We agree and affirm.

It is apparent from the attachments to the complaint, that appellant Gulsby is, in fact, a sub-sub-sub-subcontractor. We are not unmindful of our own decision in Hey Kiley Man, Inc. v. Azalea Gardens Apartments, 333 So.2d 48 (Fla.2d DCA 1976), but distinguish that case in this proceeding. Hey Kiley Man, Inc. was an action to foreclose a mechanics’ lien filed pursuant to the mechanics’ lien statute, Section 713.01-.36, Florida Statutes, 1975. In that case, this court discussed, at length, the various amendments made by the Florida state legislature in the mechanics’ lien law and concluded that certain changes within the mechanics’ lien law included anyone not in privity with the owner performing a portion of a contract to enhance realty and extended coverage to sub-sub-sub-subcontractors.

The Florida Supreme Court wrote in Fulghum v. State, 92 Fla. 622, 109 So. 644 (1926) that the passage of Section 255.05 by the Florida legislature was for the broad general purpose of affording to those supplying labor and materials on public works projects a means of protection in lieu of the lien afforded to them on private work as provided by the statutes. Thus, there may very well now exist a lack of parity in coverage and protection in the law between the mechanics’ lien law encompassed in Chapter 713, relating to private work projects, and Section 255.05, Florida Statutes, relating to the bonds of contractors constructing public buildings. This might become a concern of future legislation but the same legislature which amended Chapter 713 has not amended Section 255.05. Thus we reaffirm our decisions in City of Fort Lauderdale, supra, and North Broward Hospital District, supra, and say it is for the legislature rather than the courts to extend the bond coverage required beyond the limits stated in Section 255.05, Florida Statutes.

Affirmed.

GRIMES, Acting C. J., and McNULTY, JOSEPH P. (Ret.), Associate Judge, concur.


text:
    Bobby Harris RUSSELL, Appellant, v. STATE of Florida, Appellee.
    No. 77-420.
    District Court of Appeal of Florida, Second District.
    Nov. 4, 1977.
    Jack 0. Johnson, Public Defender, and A. J. Melkus, Special Asst. Public Defender, Bartow, for appellant.
    Robert L. Shevin, Atty. Gen., Tallahassee, and Richard G. Pippinger, Asst. Atty. Gen., Tampa, for appellee.
   PER CURIAM.

We affirm the order of the trial court revoking appellant’s probation, but we remand this case for resentencing of appellant. The present sentence does not specifically set forth the period of credit time appellant is to receive as Section 921.161(1), Florida Statutes (1975) requires. Smith v. State, 310 So.2d 770 (Fla.2d DCA 1975). Appellant need not be present at resentencing.

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


text:
    Curtis WELBORN, Appellant, v. STATE of Florida, Appellee.
    No. 77-635.
    District Court of Appeal of Florida, Second District.
    Nov. 4, 1977.
    Jack 0. Johnson, Public Defender, Bar-tow, and Douglas A. Wallace, Asst. Public Defender, Bradenton, for appellant.
    Robert L. Shevin, Atty. Gen., Tallahassee, and Davis G. Anderson, Jr., Asst. Atty. Gen., Tampa, for appellee.
   PER CURIAM.

We affirm the judgment of the trial court. However we agree with appellant that it was improper for the trial court to imprison him at hard labor. Brooks v. State, 349 So.2d 794 (Fla.2d DCA 1977). The case is remanded in order to correct the sentence, and the appellant need not be present at that time.

GRIMES, Acting C. J., SCHEB, J., and McNULTY, JOSEPH P. (Ret.), Associate Judge, concur.


text:
    James Walter DAVIS, Appellant, v. STATE of Florida, Appellee.
    No. 77-988.
    District Court of Appeal of Florida, Second District.
    Nov. 4, 1977.

      Jack 0. Johnson, Public Defender, Bar-tow, and Douglas A. Wallace, Asst. Public Defender, Bradenton, for appellant.
    Robert L. Shevin, Atty. Gen., Tallahassee, and C. Marie King, Asst. Atty. Gen., Tampa, for appellee.
   PER CURIAM.

We affirm the order of the trial court revoking appellant’s probation. However, we find it necessary to remand this case to correct an imperfection in the order revoking probation and the term of the sentence.

The record reflects that the charge that appellant violated condition (4) of his probation was dismissed by the trial judge. However, the order revoking appellant’s probation includes a violation of condition (4) as well as numerous other conditions. On remand, violation of condition (4) should be stricken. Warren v. State, 333 So.2d 516 (Fla.2d DCA 1976).

Moreover, the sentence recites appellant is to be given credit for time served in jail but does not specify the amount of that credit as required by Section 921.161(1), Florida Statutes (1975). Brooks v. State, 349 So.2d 794 (Fla.2d DCA 1977). Additionally, it was improper to sentence appellant to serve time “at hard labor.” Brooks v. State, supra.

Remanded for the purpose of correcting the order revoking appellant’s probation and his sentence consistent with this opinion; otherwise affirmed. Appellant need not be present for the purpose of these corrections.

GRIMES, Acting C. J., SGHEB, J., and McNULTY, JOSEPH P. (Ret.), Associate Judge, concur.


author: SCHEB, Judge.

text:
    McCLAIN CONSTRUCTION CORPORATION, a Florida Corporation, Appellant, v. C. S. ROBERTS, Individually, C. S. Roberts Corporation, a Georgia Corporation, and Roberts Equity Investors, Inc., a Georgia Corporation, Appellees.
    No. 77-1033.
    District Court of Appeal of Florida, Second District.
    Nov. 4, 1977.

      John F. Turbiville, Tampa, for appellant. Robert V. Williams, of Gibbons, Tucker, McEwen, Smith, Cofer & Taub, Tampa, for appellees.
   SCHEB, Judge.

Appellant/plaintiff takes this interlocutory appeal from the trial court’s order reducing a surety bond posted by appellees/de-fendants as security for claims of a mechanic’s lien that plaintiff sought to foreclose in Count I of its four-count complaint. The trial court reduced the bond, concluding that its prior partial summary judgment dismissing one of the mechanic’s lien claims was a final, appealable judgment. Since no appeal had been taken, the court reasoned, there was no longer any need for security on the dismissed claim. We disagree and hold that the partial summary judgment on the mechanic’s lien issue was not a final, appealable judgment. We reverse.

Plaintiff’s complaint alleged that in July 1973 it entered into an oral contract with defendants to render services incident to the construction of an office building in Tampa. Plaintiff was to receive $35,000 for these services. In Count I of the complaint plaintiff sought to foreclose its mechanic’s lien against the office-building property which it had filed on the basis of claims of $35,000 for contract services and $1,070.17 for labor, material, and services furnished as part of the initial improvement of the property. In Count II plaintiff sought an equitable lien against the property should its mechanic’s lien claims be denied. Count III asked for damages for breach of the oral contract, while Count IV sought the value of plaintiff’s services on a quantum meruit basis should no breach of contract be found. Defendant counterclaimed and sought damages at law, alleging the plaintiff had filed a false lien, and failed to perform certain obligations.

During the course of the litigation, Count II was dismissed. Shortly thereafter the trial court granted the partial summary judgment against plaintiff on its $35,000 mechanic’s lien claim under Count I, holding the services allegedly performed by plaintiff furnished no basis for a mechanic’s lien. However, the trial court refused to grant summary judgment on the plaintiff’s claim for $1,070.17.

Defendants subsequently moved for an order partially releasing or reducing the amount of the surety bond which had been substituted as security in lieu of their real property. The trial court held the mechanic’s lien claims of Count I were based upon a separate statutory remedy and were thereby distinct from the other counts. The partial summary judgment dismissing the $35,000 claim, the court determined, was therefore a final judgment. Since no appeal had been taken by plaintiff, the court concluded that security for the $35,-000 claim was no longer necessary and reduced the bond to an amount sufficient to cover only the $1,070.17 claim.

The trial court relied mainly on Mendez v. West Flagler Family Assoc., Inc., 303 So.2d 1 (Fla.1974). In Mendez the plaintiff brought suit against a hospital association and its insurer for breach of a hospital insurance contract. The plaintiff also charged the hospital association and its insurer with fraud and illegality with respect to issuance of the insurance policy. For this tort-fraud the plaintiff sought punitive damages. After the trial court entered a summary final judgment against the plaintiff on the fraud count, the plaintiff appealed to the Third District Court of Appeal. The defendants moved to dismiss the appeal, asserting that the summary final judgment could not be appealed prior to final judgment. The Third District agreed and dismissed the appeal. On certiorari, the supreme court reinstated the appeal, reasoning that the count alleging fraud was separate and distinct from the breach of contract counts and, therefore, the summary judgment dismissing it was immediately appealable.

We find the instant case distinguishable from Mendez. Though only Count I involved the mechanic’s lien law, plaintiff sought the same thing, i. e., compensation for the work allegedly performed incident to defendants’ office building, in each of the counts. The same facts are pertinent to each count, as plaintiff implicitly recognized in its complaint by incorporating the same basic facts into every count.

In Mendez Justice Ervin, speaking for the court, said:

It is our view the third count sets up a distinct and separate cause of action. It was based entirely on tort-fraud and illegality. It stood apart from the other two counts based on breaches of contract, respectively of the hospital association and the insurer. It arose from the alleged fraudulent issuance of the insurance policy originally and had naught to do with breaches of the policy after it was issued. 303 So.2d at 4.

Mendez quite clearly involved separable fact situations. The first fact situation dealt with circumstances of the alleged breach after the contract had been entered into, whereas the second involved a question of fraud in the very issuance of the contract. This is not at all the situation in the case before us. Here the same facts are involved in each count of plaintiff’s complaint.

In Venezia A., Inc. v. Askew, 314 So.2d 254 (Fla. 1st DCA 1975), the court was faced with an issue analogous to the one here presented. Petitioners/plaintiffs’ complaint contained two counts: Count I asked for a mandatory injunction and compensation for inverse condemnation; Count II sought damages for breach of contract. The trial court dismissed Count II, and petitioners filed both a petition for certiorari and an appeal. The First District refused to grant certiorari, and also held that the dismissal of Count II was not a final, ap-pealable order. In discussing this latter issue the court said:

Although Counts I and II of petitioners’ complaint herein involved different questions of law, they are concerned with the same set of facts. Specifically, both counts of the complaint revolve around the allegation that the respondents harmed the petitioners by denying petitioners’ application for a permit to fill land owned by them. Count I asserts that the denial of the application “has completely and totally destroyed and deprived the plaintiffs of any and all rights of utilization and exercise of its aforesaid interest and rights in and to the subject lands” while Count II asserts that the denial of the application amounts to a breach of contract. Because both counts involve the same factual circumstances, review by direct appeal is also improper under the rationale of the Mendez case. 314 So.2d 256-57 (emphasis added).

See also S.L.T. Warehouse v. Webb, 304 So.2d 97 (Fla.1974).

Here we find that all of the counts of plaintiff’s complaint involve the same factual situation and are clearly interrelated. This being so, the trial court’s summary judgment was not a final, appealable order. Therefore, the trial court erred in reducing the surety bond.

Accordingly, the trial court’s order granting reduction of the surety bond is reversed and the cause is remanded for further proceedings consistent with this opinion.

HOBSON, A. C. J., and RYDER, J., concur.

      . We are not here concerned with whether the partial summary judgment was appealable under Fla.App. Rule 4.2(a) as an interlocutory order in a matter formerly cognizable in equity.

      . Although the trial court dismissed Count II on January 15, 1976, in its order granting a reduction of security on May 18, 1977, it treated Count II as if it remained as a count of the complaint. The record reveals no reinstatement of Count II, nor did counsel explain this disparity in their briefs; however, at oral argument counsel recognized that Count II was no longer a viable count of the complaint.


text:
    PLANNING AND ZONING BOARD OF the TOWN OF ORANGE PARK, etc., Appellant, v. John EAGER and Melissa Eager, Appellees.
    No. DD-477.
    District Court of Appeal of Florida, First District.
    Nov. 7, 1977.
    Claude L. Mullís, Jacksonville, for appellant.
    Steven R. Heller, Jacksonville, for appel-lees.
   SMITH, Acting Chief Judge.

The planning and zoning board of the Town of Orange Park appeals from a circuit court judgment granting appellees’ petition for writ of certiorari and ordering the Town to grant a zoning exception in a residential area to permit use of a seven and a half acre tract for a school. The board denied the exception on several stated grounds, among them that the property is too small for a school and that noise, traffic and other characteristics of a school would be inharmonious in the neighborhood. Appellees did not appeal to the Orange Park town council, as was their right under the ordinance code.

There was no showing in the circuit court that an appeal to the town council would have been futile. The council heard a prior appeal with evident consideration and concern. Resort to the circuit court was premature and certiorari should have been denied. See Odham v. Foremost Dairies, Inc., 128 So.2d 586 (Fla.1961); DeCarlo v. Town of West Miami, 49 So.2d 596 (Fla.1950). Nor did the record before the circuit court demonstrate that the board acted arbitrarily. The assigned reasons for denying the exception had a basis in the informal record and were fairly debatable. Rinker Materials Corp. v. Citizens and Property Owners, etc., 313 So.2d 80 (Fla. 4th DCA 1975).

REVERSED.

ERVIN and MELVIN, JJ., concur.


text:
    STONEWALL INS. CO., Appellant, v. W. W. GAY MECHANICAL CONTRACTOR, INC., Appellee.
    No. EE-296.
    District Court of Appeal of Florida, First District.
    Nov. 8, 1977.
    E. Robert Williams of Boyd, Jenerette, Leemis & Staas, P. A., Jacksonville, for appellant.
    S. Gordon Blalock of Blalock, Holbrook & Akel, P. A., Jacksonville, for appellee.
   SMITH, Acting Chief Judge.

An appeal from a circuit court judgment declaring the parties’ rights concerning liability coverage under Stonewall’s insurance policy. As against StonewalPs contention that suit under Chapter 86, Florida Statutes (1975) was premature because the insured’s liability to the claimant is not yet established, the circuit court properly held that Stonewall’s letters to the insured, unequivocally disclaiming coverage of certain of the claims, entitled appellee to a declaratory judgment. To the extent claimant’s complaint was sufficiently specific to induce Stonewall to take a firm position that coverage was not afforded, thereby producing a real and present dispute between insurer and insured, the court was justified in finding “a bona fide, actual, present and practical need for a declaration.” Okaloosa Island Leaseholders Ass’n, Inc. v. Okaloosa Island Auth., 308 So.2d 120 (Fla.1st DCA 1975). If Stonewall’s “reservation of rights” letters had stopped short of disclaiming liability and had sought only to preserve Stonewall’s right to contest coverage upon maturation of claimant’s action, the case would be different.

Because appellee’s action to establish its rights under the policy was justified, resulting in “rendition of a judgment or decree . . . against an insurer and in favor of an insured . . . under a policy or contract executed by the insurer,” the trial court’s award of attorney’s fees to the insured was likewise proper. Section 627.-428(1), Florida Statutes (1975). We have considered such decisions as Manufacturers Life Ins. Co. v. Cave, 295 So.2d 103 (Fla.1974) and Equitable Life Assur. Soc., etc. v. Nichols, 84 So.2d 500 (Fla.1956), which hold that the insurer is not liable for fees when there has been no wrongful refusal to pay. Those decisions were concerned with an insurer’s neutral position in the face of conflicting claims by beneficiaries and are not authority for denying a fee award to an insured whose coverage is wrongfully repudiated by the insurer before determination of the insured’s liability to the claimant. Appellee’s motion for an allowance of fee money for the services of its counsel on appeal is also GRANTED, and the case is remanded for determination of the amount.

AFFIRMED.

ERVIN and MELVIN, JJ., concur.


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    FIRST MIAMI DEVELOPMENT CORPORATION, Cary B. Cook, Carol A. Cook, Joseph G. Reiff and Frances Reiff, Appellants, v. Margaret SCHREIBER, Appellee.
    No. 77-352.
    District Court of Appeal of Florida, Third District.
    Nov. 15, 1977.
    Edmonson S. Couric, Jr., Coral Gables, for appellants.
    Horton, Perse & Ginsberg, Weinsoff & Weinsoff, Miami, for appellee.
    Before PEARSON, HUBBART and KE-HOE, JJ.
   PER CURIAM.

Reversed and remanded for further proceedings based on the appellee’s confession of error filed before this court.