author: KEHOE, Judge.

text:
    Wolfie COHEN, Appellant, v. AMERICAN HOME ASSURANCE CO., and Travelers Insurance Company, Appellees.
    Nos. 78-97, 79-92.
    District Court of Appeal of Florida, Third District.
    Feb. 6, 1979.
    Rehearing Denied March 9, 1979.

      Horton, Perse & Ginsberg and Edward A. Perse, Samuel M. Spatzer, Miami, for appellant.
    Wicker, Smith, Blomqvist, Davant, McMath, Tutan & O’Hara and Richard A. Sherman, Miami, for appellees.
    Before PEARSON, KEHOE and SCHWARTZ, JJ.
   KEHOE, Judge.

Appellant, plaintiff below, seeks review of an adverse final order dismissing his complaint for declaratory judgment against his appellee insurer, one of several defendants below. We reverse.

Appellant’s complaint for declaratory judgment contained the following pertinent allegations:

“Comes now the plaintiff, WOLFIE COHEN (‘COHEN’ hereafter), by and through his undersigned counsel, acting under the aegis of the Florida declaratory judgment act, Chapter 86, Florida Statutes, and files this his complaint for declaratory judgment against defendants, TRAVELERS INSURANCE COMPANY (‘TRAVELERS’ hereafter), RESERVE INSURANCE COMPANY (‘RESERVE’ hereafter), and AMERICAN HOME ASSURANCE COMPANY (‘AMERICAN HOME’ hereafter), and as grounds therefor would allege — all allegations of fact being pertinent at all times hereto— that:
“1. Plaintiff/COHEN is sui juris and a citizen and resident of Dade County, Florida.
“2. Defendants, TRAVELERS, RESERVE and AMERICAN HOME are foreign corporations writing automobile liability insurance and other forms of insurance coverage in Florida, and licensed to and doing business in the State of Florida.
“3. Defendants, TRAVELERS, RESERVE and AMERICAN HOME, all deliver or issue for delivery in the State of Florida policies of automobile liability insurance covering liability arising out of ownership, maintenance or use of motor vehicles registered and/or principally garaged in the State of Florida.
“4. On information and belief, some time in late 1975, defendant/TRAVELERS issued for delivery and delivered to plaintiff/COHEN, as named insured, a policy of automobile liability insurance covering liability arising out of the ownership, maintenance or use of motor vehicles. The policy number of the TRAVELERS policy and the exact policy period are unknown to plaintiff/COHEN since he does not possess a copy of the face sheet/schedule page of the policy. However, said policy was in full force and effect at all times pertinent hereto. As discovery proceeds in this matter, plaintiff/COHEN will obtain the necessary information from the defendant/TRAVELERS to support the foregoing allegations and will amend his complaint accordingly.
“5. The defendant/TRAVELERS policy affords automobile liability and uninsured/underinsured motorist coverage to plaintiff/COHEN with policy limits applicable to each coverage of $15,000/30,000 per person/per occurrence. A copy of the policy itself is attached hereto as Exhibit A.
“6. In February 1976, defendant/RESERVE issued for delivery and/or delivered to plaintiff/COHEN, as named insured, its ‘automobile liability excess indemnity policy’ No. 707 15 19 73. The policy period of said policy was March 1, 1976 to March 1, 1977. Such policy provided insurance coverage for excess automobile liability insurance — over and above the underlying limits provided for by the policy issued by defendant/TRAVELERS — to plaintiff/COHEN. In law and in fact the defendant/RESERVE’S policy covers ‘liability arises out of the ownership, maintenance or use of motor vehicles registered and/or principally garaged in the State of Florida.’ The automobile liability excess insurance policy issued by RESERVE has liability limits of $85,000/270,000 per person/per occurence. Said policy does not on its face afford any uninsured/underinsured motorist coverage to plaintiff/COHEN. A copy of the RESERVE policy is attached hereto as Exhibit B.
“7. In October 1974, defendant/AMERICAN HOME issued for delivery and/or delivered to plaintiff/COHEN, as named insured, its ‘personal catastrophe excess third party liability policy’ No. 258 53 85. The policy period of said policy was October 25, 1974, to October 24, 1977. Such policy provided-coverage for excess general liability, including liability arising out of the owner- • ship, maintenance or use of motor vehicles, incurred by the named insured, plaintiff/COHEN. The liability limits of said policy were $2,000,000 ‘single limit any one occurrence combined personal injury and/or property damage liability in excess of’ the amount of underlying insurance available under the terms of the policies issued by TRAVELERS and RESERVE, to wit: a total of $100,000/300,000 per person/per oc-. currence. The AMERICAN HOME policy thus covered liability arising out of the ownership, maintenance or use of motor' vehicles registered and/or principally garaged in the State of Florida. Said policy, does not on its face afford uninsured/unde-rinsured motorist coverage to plaintiff/COHEN. A copy of the AMERICAN HOME policy is attached hereto as Exhibit C.
“8. The Florida Uninsured Motorist Statute, Section 627.727, Florida Statutes, in pertinent part, provides:
* * * * * *
‘“(l)No automobile liability insurance covering liability arising out of the ownership, maintenance, or use of any motor vehicle shall be delivered or issued for delivery in this State with respect to any motor vehicle registered or principally garaged in this State unless coverage is provided therein or supplemental thereto in not less than the limits of liability insurance purchased by the named insured for bodily injury, [or such lower limits complying with the company’s rating plan as may be selected by the named insured] under provisions filed with and approved by the Department for the protection of persons insured thereunder. who are legally entitled to recover damages from owners or operators of uninsured motor vehicles because of bodily injury, sickness or disease, including death resulting therefrom; provided, however, that the coverage required under this section shall not be applicable when, or to the extent that, any insured named in the policy shall reject the coverage . . . The coverage provided under this section shall be excess over but shall not duplicate the benefits available to an insured . . . under any automobile liability . . . coverages; .
******
“ ‘(2) For the purpose of this coverage, the term ‘uninsured motor vehicle’ shall, subject to the terms and conditions of such coverage, be deemed to include an insured motor vehicle when the liability insurer thereof:
******
“ ‘(b) has provided limits of bodily injury liability for its insured which are less than the limits applicable to the injured person provided under his uninsured motorist coverage.’
“9. It is apparent that under the law of the State of Florida, and specifically the provisions of Section 627.727, supra, that defendant/RESERVE and defendant/AMERICAN HOME, as issuers of policies of insurance covering liability arising out of the ownership, maintenance, or use of motor vehicles, were obligated to either provide uninsured motorist coverage to the persons covered by their policies, including plaintiff/COHEN, with limits up to and including the liability limits, $85,000/270,-000 and $2,000,000 respectively, or to obtain rejection of such coverage from their named insured, plaintiff/COHEN. Neither defendant/RESERVE nor defendant/AMERICAN HOME ever offered to or provided such coverage to plaintiff/COHEN, and neither of these defendants ever obtained a rejection of such coverage or a selection of lower uninsured/underinsured motorist limits from plaintiff/COHEN. If such coverage had been offered, plaintiff/COHEN would have purchased such insurance up to and including the highest available limit.
“10. Plaintiff/COHEN has complied with all of the terms and conditions set forth in the subject policies of insurance which would constitute preconditions to his entitlement to uninsured/underinsured motorist coverage and to arbitrate questions properly submissible to arbitration pursuant to the provisions of the subject contracts of insurance, to the extent such contracts would be held to contain such provisions.
“11. On March 3,1976, while operating a motor vehicle owned by him and insured under the terms of all of the subject policies of insurance, plaintiff/COHEN was involved in a motor vehicle accident with a vehicle owned and operated by third party tortfeasor, Sergio Dorta. As a result of such accident, plaintiff/COHEN sustained serious personal injuries. It is alleged that the negligence of third party tortfeasor, Sergio Dorta, was the sole, or at the very least, substantial legal cause of the subject accident.
“12. At the time of the subject accident, the third party tortfeasor, Sergio Dorta, was insured against liability under the terms and conditions of a policy of insurance issued to him, as named insured, by the Continental Casualty Insurance Company. Said insurance company has tendered its liability policy limits to plaintiff/COHEN as an offer of settlement of all claims against the third party tortfeasor/Sergio Dorta. The defendants herein have refused to give plaintiff/COHEN permission to accept that offer of settlement and execute the necessary releases.
“13. In due course, plaintiff/COHEN made claim for uninsured/underinsured motorist benefits against defendants, TRAVELERS, RESERVE and AMERICAN HOME, all in accordance with the terms and provisions of the subject policies of insurance, and request arbitration.
“14. Defendant/TRAVELERS has denied coverage to plaintiff/COHEN on grounds that no uninsured/underinsured motorist coverage is available here. A copy of TRAVELERS’ denial is attached hereto as Exhibit D. TRAVELERS contends that it does not owe coverage to the third party tortfeasor who is thus not an ‘underinsured’ motorist; or, in the alternative, if AMERICAN HOME and RESERVE do owe coverage, such coverage may not be ‘stacked’ to make uninsured/underinsured motorist benefits available from all defendants. Plaintiff/COHEN contends, for the reasons which appear below, that RESERVE and AMERICAN HOME do owe uninsured/underinsured motorist coverage to him, and that the coverage available from all defendants may be ‘stacked’ in this situation.
“15. Defendant/RESERVE denied coverage on grounds that the policy issued by it provides no uninsured/underinsured motorist coverage at all. A copy of RESERVE’S denial is attached hereto as Exhibit E. Plaintiff/COHEN contends that as a matter of law, on the facts as detailed above, RESERVE does owe coverage since it has issued an automobile liability policy and never obtained a rejection of such coverage or selection of lower limits.
“16. Defendant/AMERICAN HOME has denied coverage on grounds similar to those advanced by RESERVE. A copy of AMERICAN HOME’S denial is attached hereto as Exhibit F. Plaintiff/COHEN contends' that AMERICAN HOME does owe coverage on these facts and under the law of the State of Florida since it too has issued a policy of automobile liability insurance without obtaining from its insured a rejection of uninsured/underinsured motorist coverage or a selection of lower limits.
“17. As a result of the denial of coverage by all three defendants, plaintiff/COHEN has retained the undersigned counsel to represent him in connection with this matter and has become obligated to said counsel for the payment of reasonable attorneys’ fees for the prosecution of this action.
“WHEREFORE, Plaintiff/COHEN seeks this Court to enter a declaratory judgment decreeing the following:
“1. That the subject TRAVELERS insurance policy under the circumstances involved in this case and the law of the State of Florida affords plaintiff/COHEN unin-, sured/underinsured motorist coverage with limits of $15,000/30,000 per person/per occurrence, which coverage is applicable to. the incident sued upon;
“2. That the subject RESERVE policy of insurance under the circumstances involved in this case and the law of the State of Florida affords plaintiff/COHEN uninsured/underinsured motorist coverage with limits of $85,000/270,000 per person/per occurrence, which coverage is applicable to the incident sued upon;
“3. That the subject AMERICAN’ HOME policy of insurance under the circumstances involved in this case and the law of the State of Florida affords plaintiff/COHEN uninsured/underinsured motorist coverage with limits of $2,000,000 which coverage is applicable to the incident sued upon; . .
******

For the purposes of this appeal, all of the allegations within the complaint must be taken as true. See, e. g., Hammonds v. Buckeye Cellulose Corp., 285 So.2d 7 (Fla.1973).

Rule 1.110, Florida Rules of Civil Procedure, pertains to the sufficiency of com-, plaints generally. To comport generally with the requirements of this Rule, a complaint needs only to state facts sufficient to. indicate that a cause of action exists and does not need to anticipate affirmative defenses. See, e. g., Pizzi v. Central Bank & Trust Co., 250 So.2d 895 (Fla.1971); and Baxter v. Royal Indemnity Co., 285 So.2d 652 (Fla. 1st DCA 1973).

The purpose of a motion to dismiss is to determine whether a plaintiff has alleged a good cause of action and, for the purpose of-passing on such a motion, the trial court must assume that all of the facts alleged in the complaint are true; also, the allegations-contained therein must be construed in the light most favorable to a plaintiff. See, e. g., Odham v. Foremost Dairies, 128 So.2d 586 (Fla.1961); and Simon v. Tampa Electric Co., 202 So.2d 209 (Fla. 2d DCA 1967). On appeal from an order dismissing a complaint for failure to state a cause of action or to allege facts entitling a plaintiff to relief, the burden of an appellate court is to determine whether the complaint alleges sufficient ultimate facts, which under any theory of law, would entitle a plaintiff to the relief sought. See, e. g., Baxter v. Royal Indemnity Co., 285 So.2d 652 (Fla. 1st DCA 1973).

With these general principles in mind, appellant contends that, in the instant case, the trial court erred in dismissing his complaint for a declaratory judgment against appellee American Home Assurance Co. on the grounds of no coverage.

Section 627.727, Florida Statutes (1977), the pertinent parts of which have been set forth above in the subject complaint, requires that any insurer issuing a policy of insurance affording automobile liability insurance to a Florida insured must provide uninsured-underinsured motorist coverage with limits equal to the liability limits purchased by the insured, unless the insurer obtains a rejection from the insured of such coverage or the selection of such coverage with lower limits. It is now established in Florida that the rejection of uninsured motorist coverage in the selection of lower limits must, because of statutory mandate and the public policy of Florida, be in-formedly and knowingly made. See, e. g., United Fidelity & Guaranty Co. v. Darden, 338 So.2d 37 (Fla. 3d DCA 1976); Protective National Insurance Company of Omaha v. McCall, 310 So.2d 324 (Fla. 3d DCA 1975). It is also established by the Florida Department of Insurance regulations that such a rejection or selection must be in writing.

In Aetna Casualty & Surety Co. v. Green, 327 So.2d 65 (Fla. 1st DCA 1976), the court held that an “excess indemnity policy” was one of “automobile liability insurance” within the terms and provisions of Section 627.727, Florida Statutes (1977), and that an “excess umbrella” insurer had to afford uninsured motorist coverage to its insured to the full extent of the policy limits. In its opinion, the court stressed the importance of the general plan for insurance, which was known to all involved parties, provided for the insured.

In our opinion, application of the above delineated principles of law to the allegations in the subject complaint requires reversal of the order appealed. Appellant’s complaint clearly discloses that he was sold a general insurance program containing basic automobile liability coverage on a primary basis with Travelers Insurance Co. with policy limits of $15,000, excess automobile liability insurance with Reserve Insurance Co. with policy limits of $85,000, and excess umbrella coverage affording, among other things, automobile liability insurance with policy limits of $2,000,000 by appellee American Home Assurance Co. Also, the American Home policy in this case, as did the policy in Green, clearly provided liability insurance on an “excess umbrella” basis to appellant. The policy is endorsed with a schedule of underlying insurance, including automobile liability insurance. Also, the applications for insurance filled out by appellant, copies of which are attached to the subject complaint, show that the parties intentions were that the American Home policy would provide automobile liability insurance on an “excess umbrella” basis. Thus, under the facts alleged in the subject complaint, because appellee American Home insured appellant for automobile liability coverage, pursuant to Section 627.727, it must also provide appellant with uninsured-underinsured motorist coverage, unless such coverage was rejected by him. The complaint alleges that such coverage was not rejected by appellant.

Accordingly, for the reasons set forth above, the final order of the trial court dismissing appellant’s complaint is reversed and the cause is remanded for further proceedings not inconsistent with this opinion.

Reversed and remanded.


source: Caselaw Access Project

author: SCHWARTZ, Judge.

license: Public Domain

text:
    Alvin E. TOBIN, M. A., P. A., etc., et al., Appellants, v. Lawrence LEFKOWITZ, M. D., Appellee.
    Nos. 78-353, 78-354.
    District Court of Appeal of Florida, Third District.
    Feb. 6, 1979.
    Rehearing Denied March 9, 1979.
    Horton, Perse & Ginsberg and Edward A. Perse, Brumer, Moss, Cohen & Rodgers, Miami, for appellants.
    Schwartz, Klein & Steinhardt and Norman S. Klein, North Miami Beach, for ap-pellee.
    Before PEARSON, KEHOE and SCHWARTZ, JJ.
   SCHWARTZ, Judge.

No abuse of discretion has been demonstrated in the trial court’s determination of the amount of expert witness fees for the plaintiff’s accountants who testified at the trial. Keith Investments, Inc. v. James, 220 So.2d 695 (Fla.4th DCA 1969); State Road Department v. Outlaw, 148 So.2d 741 (Fla.1st DCA 1963). That portion' of the cost judgment appealed from is therefore affirmed.

The trial court erred, however, in taxing a sum for the plaintiff’s attorney’s fee as costs against the appellants-defend-' ants, since there is no statutory or contractual basis for such an award. E. g., Adler, v. Adler, 365 So.2d 411 (Fla.3d DCA, 1978). An exception to the rule which ordinarily precludes the recovery of attorney’s fees exists when as in Cooper v. Fulton, 158 So.2d 759 (Fla.3d DCA 1963) cert. disch. 165 So.2d 161 (Fla.1964), one partner secures an accounting from another. However, that exception does not apply in this case be-, cause, while one count of the complaint sought a formal accounting, that count was in effect abandoned, and the case was tried' to a jury as an ordinary damage suit. See Tucker v. Ayres, 336 So.2d 1224 (Fla.lst DCA 1976); Coffman v. Jordan, 305 So.2d 227 (Fla.4th DCA 1974).

The $5,000.00 award of attorney’s fees is therefore stricken from the judgment under review which is otherwise affirmed.

Affirmed as modified.


text:
    The BANK OF MIAMI, Appellant, v. FLORIDA CITY EXPRESS, INC., Appellee.
    No. 78-586.
    District Court of Appeal of Florida, Third District.
    Feb. 6, 1979.
    Rehearing Denied March 5, 1979.
    Layne & Brill and Mark A. Dienstag, Miami, for appellant.
    Sylvestor P. Adair, Homestead, for appel-lee.
    Before KEHOE and SCHWARTZ, JJ., and CHARLES CARROLL (Ret.), Associate Judge.
   SCHWARTZ, Judge.

Florida City Express, Inc., the maker of negotiable promissory notes, must pay twice because the Bank of Miami, a holder in due course, was not paid once. That is the impact of the law of negotiable instruments, as now embodied in the Uniform Commercial Code, upon the undisputed facts of this case.

On November 1, 1974, Florida City Express, Inc., in return for merchandise, executed an ordinary “short form” promissory note for $3,292.12 payable to Latin American Tire Co.; the maturity date was February 3, 1975. On January 17, 1975, it gave Latin American a similar note for $3,500.00 due on March 3, 1975. On November 18, 1974 and January 30, 1975, respectively, Latin American endorsed and discounted the notes with the Bank of Miami. The bank took the notes before maturity for value, and without notice of the existence of any defenses to them; hence, it was indisputably a holder in due course of both instruments. At each maturity date, the bank, after making unsuccessful demands on Latin American, called upon Florida City Express, as the maker of the notes, to pay them. Therein lies the unhappy tale told by this case.

For Florida City had already paid all the amounts due to Latin American by virtue of payments made by several checks given both before and after the negotiation of the notes by Latin American to the bank. However, the maker had not required, as to the payments made before the transfer, that any notation of those payments be made on the notes themselves. Furthermore, it had not demanded that they be displayed or surrendered by Latin American when payments were made after the payee had negotiated them and when they were therefore no longer in Latin American’s possession. When, however, the bank sued Florida City on the notes in this action, it raised the defense of payment. After a non-jury trial, the court below upheld that defense and entered judgment for the defendant. We disagree and reverse.

Our holding is based on the long familiar, universal rule, as now expressed in § 673.3-305, Florida Statutes (1977), that a holder in due course takes and holds a negotiable instrument free of all defenses of which he is not on notice. And it is very clear that this rule includes the defense of discharge or payment. Our supreme court long ago so held in Trustees of Internal Imp. Fund v. Lewis, 34 Fla. 424, 16 So. 325, 327 (1894), where it was held:

“ . . . if payment is made to the original payee, and the note is not surrendered, but has been already or should be afterwards transferred, before maturity, to a bona fide holder, without notice, such holder can recover thereon against the maker, notwithstanding such payment to the original payee. 3 Rand. Com. Paper, § 1418, and citations; Tied. Com. Paper, §§ 373, 374, and citations; 2 Daniel, Neg. Inst. §§ 1230-1233, and citations; 18 Am. & Eng. Ene. Law, p. 190, and citations.”

The Lewis case expresses the rule that, as stated in 11 Am.Jur.2d, Bills and Notes, § 667, p. 734:

“When an instrument is paid in whole or in part before maturity, it is the duty of the party making payment to have the payment indorsed [sic] or to require surrender of the instrument, and if he omits these precautions and the instrument is transferred before maturity to a holder in due course without notice of the payments, he may not avail himself of the defense of prior payment against such a holder . . . ”

Since the maker neither required an endorsement of its payments on the notes, nor demanded their surrender, it must therefore take the unpleasant consequences of that failure by making a second payment to the present holder.

Florida City argues that the bank should have given it notice of its acquisition of the notes. No authority is cited, because ’ none exists, to support this proposition. The maker’s claim that a double payment of. over $6,000.00 could have been avoided had the bank used a 15-cent stamp has- some obvious surface attraction. But we agree with the appellant that the imposition of a notice requirement would be contrary not. only to every decided case on the subject but also to the important policy that negotiable instruments must flow freely and without such impediments in the stream of commerce.

The judgment below is therefore reversed and the cause remanded with directions to enter judgment for the plaintiff-bank for the full amounts of the notes and lawful interest.

Reversed and remanded.

      . § 673.3-302, Fla.Stat. (1977).

      . Latin American’s principal, who was the thief whose actions ultimately were responsible for the controversy between two relative innocents, was by the time of trial, nowhere to be found.

      . A small amount was “satisfied” by an adjustment as to the merchandise sold by Latin American to Florida City.

      . It plainly had the right to do so under § 673.3-505(l)(d), Fla.Stat. (1977).

      . The only legal reference in the appellees’ brief is to § 679.9-318, Fla.Stat. (1977), which deals with the assignment of a secured obligation and thus has nothing to do with the negotiable instrument problem presented by this case.


text:
    SANTOS WRESTLING ENTERPRISES, INC., etc., et al., Appellants, v. Juana PEREZ and Gustavo Perez, her husband, Appellees.
    No. 78-607.
    District Court of Appeal of Florida, Third District.
    Feb. 6, 1979.
    Rehearing Denied March 9, 1979.
    Bradford, Williams, McKay, Kimbrell, Hamann & Jennings and Thomas E. Scott, Miami, for appellants.
    Horton, Perse & Ginsberg and Edward A. Perse, Ratiner & Glinn, Miami, for appel-lees.
    Before KEHOE and SCHWARTZ, JJ., and CHARLES CARROLL (Ret.), Associate Judge.
   KEHOE, Judge.

Appellants, defendants below, bring this appeal from an adverse final judgment in a personal injury action. We reverse.

Appellants in their first point on appeal contend that the trial court erred in excluding the opinion testimony of their expert concerning the etiology of appellee Juana Perez’s medical condition offered by hypothetical questions and by an independent review of her medical records, including depositions of the treating physicians.

The basis of the trial court’s exclusion of appellants’ expert witness’s testimony, a medical doctor, was that he had not treated appellee Juana Perez, and hence there was no proper predicate. This presents the question of whether an expert may render an opinion on medical causation by way of hypothetical question or independent review of the evidence without treating the patient. In our opinion, an expert may appropriately render such an opinion. Brevard County v. Apel, 246 So.2d 134 (Fla. 4th DCA 1971); and Great American Ins. Co. v. Cornwell, 191 So.2d 435 (Fla. 1st DCA 1966).

In this case, the record shows that the hypothetical question which would have formed the basis of appellants’ expert witness’s opinion comported with the evidence and tracked the criteria for the basis of such an opinion. See, e. g., Christiansen v. State, 280 So.2d 41 (Fla. 3d DCA 1973); and Steiger v. Massachusetts Casualty Insurance Co., 273 So.2d 4 (Fla. 3d DCA 1973). Alternatively, appellants offered their expert witness’s opinion based upon his independent review of the evidence. The record also shows that the medical records, reviewed by appellants’ expert, comported substantially with the evidence adduced at trial. Johnson v. State, 314 So.2d 248 (Fla. 1st DCA 1978). Accordingly, based upon the record herein, in our opinion the hypothetical question and the medical records formed an adequate predicate for appellants’ expert witness to render an opinion, without having been a treating physician. Therefore, because his opinion was crucial to appellants’ case, the trial court erred in excluding his opinion.

Reversed and remanded for further proceedings consistent with this opinion.


text:
    Lynn Michael CAMBEST, Appellant, v. Lynn Thomson Nageley CAMBEST, Appellee.
    Nos. 78-658, 78-934.
    District Court of Appeal of Florida, Third District.
    Feb. 6, 1979.
    Rehearing Denied March 9, 1979.
    Bryson & Berman and Mark S. Berman, Miami, for appellant.

      Joseph P. Averill, Miami, for appellee.'
    Before KEHOE and SCHWARTZ, JJ., and CHARLES CARROLL (Ret.), Associate Judge.
   KEHOE, Judge.

Appellant brings these consolidated appeals from the trial court’s orders denying his petition for modification of alimony and awarding appellee attorney’s fees and costs incurred as a result of the petition. We affirm in part and reverse in part.

Among his points on appeal, appellant contends that he properly sought modification of the alimony provision contained in a settlement agreement between the parties and that, in denying his petition for modification of alimony, the trial court relied upon an erroneous impression of the applicable law.

Based upon our review of the record in this cause, we are in agreement with the contentions of appellant set forth above. The settlement agreement, in regard to its provisions for alimony was properly subject to modification. Further, it was unnecessary as a condition for such modification that appellant show any hardship. Other factors may be present in a situation which permit the modification without such a showing. See, e. g., Friedman v. Friedman, 366 So.2d 820 (Fla. 3d DCA 1979); Anderson v. Anderson, 333 So.2d 484 (Fla. 3d DCA 1976); and Craig v. Craig, 298 So.2d 189 (Fla. 1st DCA 1974). Accordingly, because the trial court in the exercise of its discretion denied appellant’s petition based upon an erroneous impression of the applicable law, we must reverse the order denying the petition and remand the cause for further consideration in the light of this opinion.

We find no error in the trial court’s award of attorney’s fees and costs to appel-lee; therefore, the order awarding such sums is affirmed. See, e. g., Herzog v. Herzog, 346 So.2d 56 (Fla.1977).

Affirmed in part, reversed in part, and remanded.


text:
    Luisa RODRIGUEZ, Appellant, v. TRAVELERS INSURANCE COMPANY, Appellee.
    No. 78-688.
    District Court of Appeal of Florida, Third District.
    Feb. 6, 1979.
    Rehearing Denied March 9, 1979.

      Stabinski, Funt, Levine & Vega, Miami, for appellant.
    Adams & Ward and Amy Shield Levine, Miami, for appellee.
    Before KEHOE and SCHWARTZ, JJ., and CHARLES CARROLL (Ret.), Associate Judge.
   SCHWARTZ, Judge.

The plaintiff-appellant, Luisa Rodriguez, was severely injured in an automobile accident caused by the negligence of a man named Gomez who had $15,000.00 in liability insurance coverage with the South Carolina Insurance Company. Mrs. Rodriguez was herself insured under a Travelers Insurance Company policy which provided her with $5,000.00 in personal injury protection and $1,000.00 in medical payments benefits. After Travelers paid her the entire amount of each coverage, the plaintiff reached a settlement agreement with the third-party tortfeasor’s insurer, South Carolina, for the full $15,000.00 limits of its policy.

Mrs. Rodriguez then filed — in an action pending only against Gomez and South Carolina — a “motion for equitable distribution,” directed against Travelers, in which she contended that the “value” of the case was far more than $15,000.00, and sought an order determining the dollar amount of reimbursement to which her carrier was equitably entitled for the benefits it had paid under both the p. i. p. and medical payments provisions. After a hearing at which Travelers appeared and in which it was revealed that it had demanded $1,000.00 or 20% of the amount paid on its p. i. p. claim, the trial judge awarded $150.00, or 3% of that amount in equitable distribution. Neither party seeks review of that determination. However, the court denied outright the request for equitable distribution of the medical payments benefits, and also, apparently based upon its finding that Travelers had not negotiated the p. i. p. equitable distribution controversy in “bad faith,” denied the plaintiff’s application for attorney’s fees for the services involved in that proceeding. Mrs. Rodriguez challenges both of these rulings on this appeal. We affirm the former, and reverse the latter.

The trial court was correct in rejecting the plaintiff’s attempt to equitably distribute the amounts paid under the medical payments coverage. According to the terms of the Travelers policy, which was in evidence below, the insurance company, upon payment of these benefits, became subrogated to Mrs. Rodriguez’s rights to recover those amounts against the third-party tort-feasor. Since this provision is valid and enforceable, DeCespedes v. Prudence Mutual Casualty Co. of Chicago, III, 202 So.2d 561 (Fla.1967), aff’g., 193 So.2d 224 (Fla. 3d DCA 1966), and there is no statutory provision to the contrary, we hold that its existence precludes the plaintiff’s attempt, in effect, to reduce the amount paid based upon “equitable principles.”

We think this result is required by our decision in Eckert v. Government Employees Ins. Co., 334 So.2d 119 (Fla. 3d DCA 1976). The court there cited the DeCes-pedes case, supra, which involved medical pay coverage, in support of the conclusion that equitable distribution was not applicable, in the absence of statute, to payments made by an uninsured motorist carrier. At 334 So.2d 122, the court held:

“We note that the First District Court of Appeal has held that in such a case where the recovery is more than sufficient to reimburse the insurer-subrogee for the amount paid by it under the uninsured motorists coverage, the subrogee is not entitled to full reimbursement (less expenses of recovery) but is restricted to recovery of a portion thereof to be determined upon the basis of equitable distribution. We are shown no statutory provision limiting recovery by the subrogee to a portion of its outlay on the basis of equitable distribution in such circumstance. We recognize that a statute which had provided for full recovery by the insurer in such an instance (§ 627.-0851(4) Fla.Stat., F.S.A.) is no longer in effect and was not applicable in this case. However, it would appear that the insurer may so recover under the common law doctrine of subrogation and we so hold ”

See also International Sales-Rentals Leasing Co. v. Nearhoof, 263 So.2d 569, 571 (Fla.1972); Public Health Trust of Dade County v. O'Neal, 348 So.2d 377 (Fla. 3d DCA 1977); Dade County v. Perez, 237 So.2d 781 (Fla. 3d DCA 1970); Dade County v. Bodie, 237 So.2d 553 (Fla. 3d DCA 1970).

As to the appellant’s second point, we conclude that when, as here, the trial judge awards the p. i. p. carrier less than what it has demanded in equitable distribution, the insured is entitled to an attorney’s fee under § 627.428(1), Fla.Stat. (1975). Accordingly we reverse that portion of the final order below which denied the plaintiff such an award. Essentially, we agree with the holding in Reliance Ins. Co. v. Kilby, 336 So.2d 629 (Fla. 4th DCA 1976) that fees should be awarded when the insured is successful in a judicial battle with his own p. i. p. carrier over the amount of equitable distribution to which the company is entitled under § 627.736(8), Fla.Stat. (1975). See also Catches v. Government Employees Ins. Co., 318 So.2d 552 (Fla. 1st DCA 1974), cert. denied, 333 So.2d 41 (1976); White v. Reserve Ins. Co., 299 So.2d 661 (Fla. 1st DCA 1974), cert. denied, 308 So.2d 113 (1975). The terms of the insurance attorney’s fee statute, § 627.428(1), Fla.Stat. (1975), which requires only a “judgment [the final order entered below] . . . against an insurer and in favor of an insured under a policy . . . executed by the insurer . . ” seem to us, as they did to the Fourth District in Kilby, clearly to apply to this situation.

We disagree, however, with the statements in both the Kilby and Catches cases, supra, that fees may be awarded under the statute only “when the insurer refuses or fails to negotiate in good faith.” Reliance Ins. Co. v. Kilby, supra, at 336 So.2d 631; Catches v. Government Employees Ins. Co., supra, at 318 So.2d 553. In our view, these statements are completely contrary to an unbroken line of Florida cases which hold that fees must be awarded when the statutory prerequisites are met, regardless of whether the insurance company has acted in bad faith or not. For example, in one of the earliest cases interpreting the present statute’s original predecessor, New York Life Ins. Co. v. Lecks, 122 Fla. 127, 165 So. 50, 55 (1936), our supreme court held:

“A reasonable attorney fee to be adjudged in this case is indicated in the original opinion herein. Its recovery is a statutory right of the beneficiary, and the principles relating to the recovery of unjust penalties announced in Atlantic Coast Line R. Co. v. Wilson & Toomer Fertilizer Co., 89 Fla. 224, 104 So. 593, and Atlantic Coast Line R. Co. v. Connell & Schultz, 111 Fla. 572, 149 So. 596, 151 So. 381, do not supersede the affirmative statutory right of the beneficiary to recover reasonable attorney fees, even though payment under the policy was contested in good faith and upon reasonable grounds.”

Accord, e. g., Pacific Mutual Life Ins. Co. of California v. McCaskill, 126 Fla. 82, 170 So. 579 (1936); Cincinnati Ins. Co. v. Palmer, 297 So.2d 96 (Fla. 4th DCA 1974); Salter v. National Indemnity Co., 160 So.2d 147 (Fla. 1st DCA 1964).

Indeed the Kilby case itself ably summarizes the practical reasons for the statutory provision for attorney’s fees as they apply to this very situation:

“. . .as illustrated by the facts in the instant case, the amount of PIP benefits is often relatively small. With PIP benefits of $778.86 to be apportioned, it would make no economic sense for the , insured to seek judicial apportionment if the insured must pay his own attorney fee. The fees could very well equal or surpass the award of benefits. After all, the legal work of demonstrating the value of the claim falls on the insured. So, if an insured is not to receive an award of attorney fees, he or she is left to the mercy and dictates of the insurer in the amounts of apportionment.” 336 So.2d at 631.

It should make no difference, however, in applying this policy, whether the carrier has made its demand in good or in bad faith or whether the insured wins a little or a lot as a result of his action. Whenever an insured wins by judicial action, any amount in equitable distribution which his p. i. p. carrier was unwilling voluntarily to give him, he has secured a judgment in his favor to that extent and is therefore entitled to an attorney’s fee under the statute. The order denying fees is therefore reversed and the cause remanded with directions to thé trial court to fix such a fee in accordance with the applicable criteria.

Affirmed in part, reversed in part and remanded.

      . The proceeding against Gomez and South Carolina (who settled the case without and before any litigation was commenced against them) consisted only of an unserved complaint filed a few days before in the Circuit Court, the only purpose of which was obviously to serve as a procedural means to secure jurisdiction for the determination of the amount of equitable distribution to which Travelers was entitled. This appears to be a common method of resolving such disputed issues between a plaintiff and his insurer or workmen’s compensation carrier. If, as occurred in this case, the real adversary receives adequate notice of the application and a reasonable opportunity to be heard, we see no reason to disapprove of this relatively efficacious method of determining these issues, which are often the only ones which stand in the way of final settlements of tort claims.

      . This fact decisively distinguishes this case from State Farm Mutual Automobile Ins. Co. v. Gordon, 319 So.2d 36, 40 (Fla. 1st DCA 1975), upon which the appellant relies.

      . Compare White v. Reserve Ins. Co., 299 So.2d 661 (Fla. 1st DCA 1974), cert. denied, 308 So.2d 113 (Fla.1975).

      . The Eckert case was certified to the Supreme Court, but a petition for certiorari was not filed. The decision therefore remains authoritative on the issue in this district.

      . Travelers thus may pursue Gomez and South Carolina to recover its subrogated $1,000.00 in medical payments. See Government Employees Ins. Co. v. Wheelus, 270 So.2d 409 (Fla. 4th DCA 1972). We are told that this sum is being withheld from the proposed settlement to Mrs. Rodriguez in order to satisfy this claim, but we of course express no view as to the outcome or effect of any such litigation. See Forsyth v. Southern Bell Telephone & Telegraph Co., 162 So.2d 916 (Fla. 1st DCA 1964).

      "1 Central National Insurance Group v. Hotte, Fla.App.1975, 312 So.2d 235; State Farm Mutual Ins. Co. v. Gordon, Fla.App. 1975, 319 So.2d 36.

      "2 International Sales-Rentals Leasing Co. v. Nearhoof, Fla. 1972, 263 So.2d 569; DeCespedes v. Prudence Mutual Casualty Co. of Chicago, Ill., Fla.App.1967, 193 So.2d 224 (aff'd on cert., Fla., 202 So.2d 561).
      The absence of a separate statute for such recovery by an insurer will not operate to deny to it the right to sue and recover under the common law doctrine of subrogation.”

      .The dictum in Blue Cross of Florida, Inc. v. O’Donnell, 230 So.2d 706, 709 (Fla. 3d DCA 1970) which states that the amount recoverable by a subrogated hospitalization insurer is to be “based upon equitable considerations” is no longer controlling in the light of our later direct holdings to the contrary in the Eckert case and in this one.

      . In view of the fact that the trial judge specifically found that Travelers was not guilty of “bad faith,” it is obvious that this statement was the basis of the denial of fees below. It should be pointed out, however, that the Kilby case stated also, at 336 So.2d 631
      “. . . that the trier of the fact can gauge that good faith or lack thereof by the percentage imbalance between that amount demanded and that judicially awarded to the insurer. Where, as here, the difference is gross, it is our judgment that the trial court was correct in finding a dispute and awarding fees.”
      In the Kilby case the “percentage imbalance” was that between 80% demanded and 18% awarded, which is less “gross” than the 20%-3% difference involved in this case. Thus, we would have to reverse the order below on the ground that the carrier was guilty of bad faith as a matter of law, even if we were to follow Kilby as to this aspect of the case. We might add to the reasons why we choose not to do so, as stated in the body of the opinion, the rather obvious practical impossibility of determining when a “percentage imbalance” is or is not so gross as to require a finding of bad faith, as well as the total lack of any theoretical or conceptual basis for making the result turn on any such determination.

      . See n.7, supra.

      . 18A Fla.Jur., Insurance, § 932 (1971).


author: MELVIN, Judge.

text:
    Robert TROUP, Appellant, v. Jerry HEACOCK, d/b/a J. M. Heacock Insurance, Inc., Appellee.
    No. JJ-428.
    District Court of Appeal of Florida, First District.
    Feb. 7, 1979.
    Jason G. Reynolds, Daytona Beach, for appellant.
    Larry Mark Polsky, Daytona Beach, for appellee.
   MELVIN, Judge.

Robert Troup appeals from a final judgment entered against him and in favor of Jerry Heacock, d/b/a J. M. Heacock Insurance, Inc., and also from a final judgment that enjoined Troup from competing in the sale of life or health insurance policies in the Volusia County area, excluding New Smyrna Beach and cities west of Daytona Beach and their service areas, for a period beginning April 25, 1978, and ending April 24, 1980.

Heacock and Troup entered into an employment contract whereby Troup was to sell insurance for Heacock. This contract was subject to termination at the will of Heacock, contained no provision for training for Troup, and no requirement with reference to the amount or quota of insurance to be sold. Under the contract, Troup was to receive $125 weekly as a draw. The contract did not provide that the weekly draw could be reduced. The contract also provided:

“(e) That, should MR. ROBERT TROUP either quit or be fired from his job with JERRY HEACOCK, d/b/a J. M. HEAC-OCK INSURANCE, INC., during, this indefinite period of between January 2, 1977 and whenever, that ROBERT TROUP hereby agrees not to compete in the sale of any of the aforedescribed types of insurance in the Volusia-Flagler County area for a period of three (3) years without prior written consent of JERRY HEACOCK, d/b/a J. M. HEA-COCK INSURANCE, INC.”

The contract was drawn by J. M. Heacock and, therefore, the ambiguities contained therein are to be construed against him and in favor of Robert Troup. This contract is not enforceable against Robert Troup. We find that Jerry Heacock breached the same by reducing the $125 weekly draw provided for in the agreement to the sum of $100 per week, and then later to $50 per week, all without the consent of Robert Troup. Thereafter, for whatever reason that was pleasing to Jerry Heacock, he fired Robert Troup. Having unilaterally reduced the amount stipulated for Troup’s weekly draw, such action had the legal effect of releasing Troup from any obligation to Heacock. 7 Fla.Jur. “Contracts”, Sections 164, 175.

The contract having been materially altered and breached by Jerry Heacock, it follows that the judgment herein appealed from, which represented Heacock’s claim for reimbursement for sums paid Troup while in the employ of Heacock is reversed.

The injunction order referred to is contrary to equity and, if allowed to stand, would result in inverse peonage. Therefore, the same is also reversed with directions that as to each asserted claim by Heacock, judgment be entered in favor of Troup.

McCORD, C. J., and BOOTH, J., concur.


author: ERVIN, Judge. MILLS, Acting Chief Judge,

text:
    Sam Lee DORSEY, Appellant, v. State of FLORIDA, Appellee.
    No. KK-240.
    District Court of Appeal of Florida, First District.
    Feb. 9, 1979.

      Michael J. Minerva, Public Defender, and Louis G. Carres, Asst. Public Defender, for appellant.
    Robert L. Shevin, Atty. Gen., and Carolyn Snurkowski, Asst. Atty. Gen., for appellee.
   ERVIN, Judge.

Dorsey’s appeal from his conviction for unlawful possession of more than five grams of cannabis urges that the lower court erred in failing to grant his motion for judgment of acquittal since the state failed to prove the cannabis, after excluding non-prohibited stems and stalks, was in excess of five grams. He relies upon Purifoy v. State, supra note 1, which held that the state has the burden of proving that the quantity found in a defendant’s possession must exceed five grams after stems and stalks have been removed. We conclude the state met its burden and that the facts in Purifoy are easily distinguished from those here. In Purifoy, the aggregation of both prohibited cannabis and non-prohibited stalks and stems weighed only 7.05 grams. Here the total amount was 24.2 grams. In Purifoy there was no expert testimony, as here, that the controlled substance contained in cannabis, tetrahydroeannabinols, when ground into small refined parts, contaminated the non-prohibited matter. Finally, the chemist’s opinion testimony was uncontradicted that the half gram which he tested was representative of the remaining untested 23.7 grams. See Ansley v. State, 302 So.2d 797 (Fla. 1st DCA 1974) and Wright v. State, 351 So.2d 1127 (Fla. 1st DCA 1977), affirming convictions upon similar testimony.

AFFIRMED.

SMITH, J., concurs.

MILLS, Acting C. J., dissenting.

MILLS, Acting Chief Judge,

dissenting:

I dissent. I would reverse on authority of Purifoy v. State, 359 So.2d 446 (Fla.1978).

      . Section 893.02(2), Fla.Stat. (1977), excludes from its definition of cannabis mature stalks. Purifoy v. State, 359 So.2d 446 (Fla.1978), held that the stems of the plant are stalks within the purview of the statute.

      . This is a Schedule I controlled substance under § 893.03(1 )(c) 17.


author: PER CURIAM.

text:
    Bobby F. ROBERTS, Appellant, v. STATE of Florida, Appellee.
    No. 77-1558.
    District Court of Appeal of Florida, Second District.
    Feb. 9, 1979.
    Jack 0. Johnson, Public Defender, Bar-tow, and Wayne Chalu, Asst. Public Defender, Tampa, 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 reversible error; therefore, the judgment appealed is affirmed on authority of Clark v. State, 363 So.2d 331 (Fla.1978).

The only point which merits discussion is the propriety of appellant’s sentence 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. Speller v. State, 305 So.2d 231 (Fla. 2d DCA 1974).

Remanded for the purpose of striking the language “at hard labor” from the sentencing order; otherwise affirmed. Appellant need not be present for this purpose.

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


text:
    FOXCROFT BUILDING CORP., INC., a Florida Corporation, Foxcroft Ltd., a Florida Limited Partnership, Fairway Club, Ltd., a Limited Florida Partnership, Foxcroft Club, Inc., a Florida Corporation, Edward Feinstein and Mortimer Feldman, Appellants, v. ALLIED PLASTERING CO., INC., a Florida Corporation, Appellee.
    No. 78-483.
    District Court of Appeal of Florida, Fourth District.
    Feb. 14, 1979.
    John M. Greenfield, of the Law Offices of Leo Greenfield, P. A.,' North Miami, for appellants.
    Terrence S. Schwartz, of Cohen, Angel & Rogovin, North Miami, for appellees.
   PER CURIAM.

Appellant has filed an interlocutory appeal from an order in a case formerly cognizable in equity. The order appealed denies objections to requests for production of certain documents. Because this appeal was filed after March 1, 1978 the Florida Rules of Appellate Procedure which became effective on that date are applicable. Florida Rule of Appellate Procedure 9.130 does not permit an appeal of this nature. We decline to treat the matter as a petition for writ of certiorari. Professional Medical Specialties, Inc. v. Renfroe, 362 So.2d 397 (Fla. 4th DCA 1978).

APPEAL DISMISSED.

ANSTEAD, DAUKSCH and BERANEK, JJ., concur.


text:
    Hikim SHABAZZ, a/k/a Owen X. Denson, Jr., Appellant, v. STATE of Florida, Appellee.
    Nos. 77-693, 77-811 to 77-828.
    District Court of Appeal of Florida, Second District.
    Feb. 14, 1979.

      Jack 0. Johnson, Public Defender, Paul C. Helm, and David S. Bergdoll, Asst. Public Defenders, Bartow, for appellant.
    Hikim Shabazz, pro se.
    Robert L. Shevin, Atty. Gen., Tallahassee, and William I. Munsey, Jr., Asst. Atty. Gen., Tampa, for appellee.
   PER CURIAM.

The judgments appealed are affirmed, but case nos. 77-693 (cir.ct.no. 77-120) and 77-815 (cir.ct.no. 77-805) are remanded for resentencing.

In case no. 77-693 the trial court imposed only a single sentence on two separate counts of carrying a concealed firearm. This is a general sentence, which is no longer proper and may not be imposed by a trial court. Dorfman v. State, 351 So.2d 954 (Fla.1977); Darden v. State, 306 So.2d 581 (Fla.2d DCA 1975); Darden v. State, 330 So.2d 750 (Fla.2d DCA 1976). That sentence is therefore vacated and that case remanded for entry of a separate sentence on each count.

In case no. 77-815 appellant was sentenced to 15 years for uttering a forged instrument. That offense is a third degree felony, § 831.02, Fla.Stat. (1975), punishable by a maximum prison sentence of five years, § 775.082(3)(d), Fla.Stat. (1975). This sentence is therefore vacated and that case remanded for imposition of a sentence within the legal maximum. Appellant is entitled to be present at resentencing.

Remanded for resentencing in two of the cases; otherwise affirmed.

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


author: SCHEB, Judge.

text:
    Mary R. JOHNSON, Appellant, v. Robert L. JOHNSON, Appellee.
    No. 78-300.
    District Court of Appeal of Florida, Second District.
    Feb. 14, 1979.

      Claude H. Tison, Jr. of Macfarlane, Ferguson, Allison & Kelly, Tampa, for appellant.
    Lee S. Damsker of Gordon & Maney, Tampa, for appellee.
   SCHEB, Judge.

Appellant wife challenges several provisions of the final judgment of dissolution. Specifically, she contends that the trial court erred in failing to award her permanent alimony, in refusing her request for a special equity in two parcels of land, in not awarding adequate child support, and in failing to require the husband to maintain the marital residence. We agree that the court erred in failing to grant her a special equity in one parcel of land, and that it should have awarded additional child support. On these two points we reverse; otherwise, we affirm.

The parties were married in 1966, a second venture for both. They have twin nine-year-old daughters. Neither party entered the marriage with any substantial assets.

At the beginning of the marriage the husband made $8,000 to $9,000 per year as a salaried employee. However, in October 1971 he and two associates began operating a sod business. Thereafter his earnings increased considerably, and approached $45,-000 during the banner year of 1974. His income declined to $22,300 in 1975, and to $15,600 in 1976. In addition to his salary, husband received some fringe benefits from the company. He valued his one-third interest in the sod business at $40,000.

Previous to the marriage the wife worked as a garment inspector and sales clerk for a short time. During the marriage the wife was primarily a housewife, though she produced some income through the sale of berries and Christmas trees.

The parties jointly owned their marital home, a remodeled three-bedroom house on a 6.8-acre tract of rural land near Valrico. The husband valued the home and the immediate surrounding acre of land at between $35,000 and $45,000. He estimated the value of the remaining 5.8 acres at approximately $6,000 per acre. A $17,500 mortgage encumbered the entire property. Additional assets owned by the parties included household furnishings, an automobile, and two mobile homes.

The husband and his brother were equal record title holders of a 10-acre parcel of land known as the “Miley tract.” The husband and one of his business partners also owned a 2.4-acre tract of land near Lithia. The husband valued his interest in the Mi-ley tract, acquired in 1973, at $17,500, and his interest in the smaller tract, acquired in 1974, at between $4,000 and $5,000.

In the final judgment of dissolution the trial court awarded the wife rehabilitative alimony of $150 per month for four months, custody of the two children, exclusive possession of the marital home and the surrounding acre of land until the children attain their majority or the wife remarries, and the 1974 automobile and one of the mobile homes as lump-sum alimony. In addition, the husband was required to maintain his health insurance for the benefit of the children; to pay the wife $50 per week child support; and, to pay all mortgage payments, taxes, and insurance on the home place, with one-half of these payments to augment his equity in the property and the remaining one-half to be considered as additional rehabilitative alimony.

The 10-aere Miley tract was acquired in 1973 for approximately $22,000. Title was vested equally in the husband and his brother. However, in response to interrogatories the husband acknowledged that he considered himself and his wife to be joint owners of a one-half interest in this parcel. He reaffirmed this in his testimony at a pretrial deposition. The evidence at trial showed that the payments for the one-half interest in this tract came from an account containing joint funds which included the wife’s earnings from the sale of berries and Christmas trees. Finally, the evidence also revealed that the wife had signed the purchase money mortgage and that she assumed that she was a joint owner of the property. She made at least one payment on the mortgage from her own account after the parties separated. We think this evidence was sufficient to establish a special equity in favor of the wife in the Miley tract. Long v. Long, 304 So.2d 483 (Fla. 1st DCA 1974); Wollman v. Wollman, 235 So.2d 315 (Fla.3d DCA 1970).

As to the smaller tract of land the husband owned with his business associate, the evidence showed that the payments were made largely from the husband’s business account. The trial court did not err in refusing to find a special equity in favor of the wife in this parcel.

The wife’s age, limited education, work history, and need to be with her preteen daughters all combine to forebode rather dim employment prospects for her. She will have a car to drive and a place to live and raise her family, but her financial resources will be limited to the $120 per month she receives from the rental of the mobile home awarded her. Had any of us been the trial judge we might well have awarded her rehabilitative alimony for a longer period of time, or even permanent alimony. Likewise, we may have been inclined to require the husband to maintain the home place which the wife said was in need of repair. There was, however, conflicting evidence on this latter point. Be this as it may, we cannot say that the trial court erred in finding as it did in these respects as there was competent, substantial evidence to support its findings. In such instances it is our duty to affirm the trial court. Shaw v. Shaw, 334 So.2d 13 (Fla.1976).

We find it impossible, however, to sustain the trial court’s child support award of only $25 per week per child. In light of today’s cost of living and the needs the wife will have to meet, this figure is totally unrealistic. The law gives the trial judge broad discretion in determining the amount of child support. Kahn v. Kahn, 78 So.2d 367 (Fla.1955). Nevertheless, an appellate court is justified in ordering an increase in support where, as here, it finds a clear abuse of discretion. McArthur v. McArthur, 95 So.2d 521 (Fla.1957); Schultz v. Schultz, 290 So.2d 146 (Fla.2d DCA 1974). We think that $50 per week per child is the minimum realistic amount the trial court should have awarded as child support.

Accordingly, the trial court is directed to amend its final judgment to award the wife a special equity of one-half of the husband’s interest in the Miley tract, and to require the husband to make child support payments of not less than $50 per week per child. In all other respects the judgment is affirmed.

Affirmed in part, reversed in part, and remanded for further proceedings.

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

      . The husband was ordered to discharge a lien against the automobile and the wife was required to assume the $95 monthly payment on the mobile home.

      . We do note, however, that the mobile home is now rented to the wife’s son by a former marriage, and that the husband testified the present rental return may be somewhat below market.


author: RYDER, Judge.

text:
    PICO DEVELOPMENT CORPORATION, Appellant, v. Arthur D. EDWARDS and Charlotte Edwards, his wife, Appellees.
    No. 78-1102.
    District Court of Appeal of Florida, Second District.
    Feb. 14, 1979.
    Stephen 0. Cole of McMullen, Everett, Logan, Marquardt & Cline, P. A., Clear-water, for appellant.
    Larry G. Rightmyer, St. Petersburg, for appellees.
   RYDER, Judge.

Pico Development Corporation, defendant/counterclaimant, appeals a final judgment in an action for breach of a condominium sales contract.

By contract executed March 18, 1973, ap-pellees agreed to purchase a condominium unit on Clearwater Beach from appellant. The contract contained a liquidated damages clause. At the time of execution of this contract, construction of the condominium project had not yet begun. Thereafter, the unit which appellees agreed to purchase was constructed and was tendered to appel-lees by appellant for closing in the latter part of 1975. The trial court found that appellant gave appellees an extension on the closing date to April 15,1976, but appel-lees never closed. Indeed, the trial court found as fact that appellees at all times were seeking to sell their interest in the contract to a third party for profit and never displayed any specific willingness or ability to proceed to closing. Subsequently, after the commencement of this action, appellant sold the unit at issue to a third party.

The instant case was filed on May 3,1977 when appellees sued for specific performance of the contract for purchase of the condominium unit or, alternatively, for the return of a $5,850.00 down payment paid by them to appellant. Appellant answered by denying liability and raising certain affirmative defenses. Appellant also filed a counterclaim for damages against appellees, alleging that it did construct the unit, but appellees failed to close, to the damage of appellant. Appellant sought to retain the deposit money paid by appellees as liquidated damages under the contract.

A nonjury trial was held. The court found the facts as stated above and, further, that appellees’ failure and/or refusal to close was without legal justification and appellant suffered damages as a result thereof. The trial court then endeavored to compute the actual damages (interest, taxes, etc.) sustained by appellant and arrived at the figure of $14,147.00, from which the court subtracted the figure of $11,387.00, representing the net profit realized by appellant be selling the condominium unit to the third party instead of to appellees, arriving at a net loss to appellant of $2,759.70.

Thereupon, final judgment was entered on March 21, 1978. First, judgment was entered in favor of appellant/defendant as to appellees’ complaint. Secondly, it was adjudged that appellant should recover on its counterclaim the sum of $2,759.70 from appellees; but, since appellant had in its possession the appellees’ deposit of $5,850.00, the court directed appellant to deduct from said deposit the judgment herein awarded and refund to appellees the balance of their deposit, to wit, $3,090.30. Appellant timely appealed.

Appellant contends that the trial court erred in computing the actual damages suffered by appellant, as aforesaid, and in deducting that sum from the deposit paid by appellees to appellant. Appellant asserts that it is entitled to retain the monies, in their entirety, paid to it by appellees as deposits. We concur.

The instant case is markedly similar factually to Bruce Builders, Inc. v. Goodwin, 317 So.2d 868 (Fla. 4th DCA 1975), and we find that case controlling. The Fourth District Court of Appeal succinctly summarized the law applicable herein when it stated in Bruce Builders, Inc., supra, 317 So.2d at 869:

“It is apparent from the final judgment. that the court found the appellees had breached the contract. Appellees’ breach of their agreement rendered them pur-, chasers in default. As a general rule a purchaser in default (absent exceptions which are not present in this case) cannot, recover from the seller money paid in part performance of an executory contract. Beatty v. Flannery, Fla.1950, 49 So.2d 81; Ruckelshaus v. Broward County School Board, 494 F.2d 1164 (5th Cir.1974). See also O'Neill v. Broadview, Inc., Fla.App.1959, 112 So.2d 280. Therefore, the award of the deposit to appel-lees was error even had the contract not provided for its retention by appellant as liquidated damages. Beatty v. Flannery, supra.

Accordingly, the judgment is affirmed in part and reversed in part. While we affirm that aspect of the final judgment in favor' of appellant on appellees’ complaint, we reverse the judgment as to appellant’s counterclaim insofar as it purports to compute appellant’s actual net damages, deducts same from the appellees’ deposit held by appellant, and orders appellant to refund appellees the balance of said deposit. The trial court is directed to enter judgment in favor of appellant on its counterclaim, entitling appellant to retain the full amount of the $5,850.00 deposit paid to it by appellees.

AFFIRMED in part; REVERSED in part and REMANDED with directions.

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


author: GRIMES, Chief Judge.

text:
    J. L. J., a child, Appellant, v. STATE of Florida, Appellee.
    No. 78-1260.
    District Court of Appeal of Florida, Second District.
    Feb. 14, 1979.

      Jack 0. Johnson, Public Defender, Bar-tow, and Karal B. Rushing, Asst. Public Defender, Tampa, for appellant.
    Robert L. Shevin, Atty. Gen., Tallahassee, and C. Marie King, Asst. Atty. Gen., Tampa, for appellee.
   GRIMES, Chief Judge.

J. L. J. appeals an order of the juvenile court adjudicating him delinquent based upon the offense of petit theft. He contends that the evidence introduced against him was insufficient to support a finding that he was guilty of the offense. We agree and reverse.

Appellant is a junior high student in Hillsborough County. On the day the theft occurred, his first period teacher asked him and two other students to help replace some window blinds. As the old blinds were taken down they were stored on shelves behind the teacher’s desk. The class members were always boisterous and hard to control, and on that day there was even more movement in the classroom than usual because a movie was to be shown after the new blinds were installed. During the movie, which was shown in a darkened room, the students were allowed to sit wherever they wished. A few minutes after the end of the period the teacher discovered that her wallet was missing from her purse which had been hanging on the chair behind her desk.

The teacher reported the theft immediately. The wallet was later found in the boys’ restroom. Six one dollar bills were missing from the wallet. That afternoon appellant approached a classmate friend and asked him to hold six one dollar bills which he had “found in a P.E. locker.” Another student saw the friend with the money and reported this fact to the school security officer. The officer questioned appellant’s friend about the source of the money, and then questioned appellant separately. Appellant denied knowing anything about the teacher’s money. When he was confronted with the six dollars he had given his friend, appellant stated that he had found it in a physical education locker. Although the money was returned to the teacher, she was not able to definitely identify the six dollars as the money taken from her wallet. On this evidence, the court found that appellant had taken the wallet and adjudicated him delinquent.

The standard of proof required to adjudge a minor delinquent is the same as that required to convict an adult. D.M.M. v. State, 275 So.2d 308 (Fla. 2d DCA 1973). Where the state relies entirely on circumstantial evidence, the circumstances must not only be consistent with guilt but must also be inconsistent with innocence. The evidence introduced below did not meet that requirement. Although appellant was in a good position to have taken the wallet and his possession of an amount of money equal to that taken is suspicious, there was no evidence which contradicted his claim that he found the money. Circumstances alone which leave nothing more than suspicion that the accused committed a crime are not sufficient to convict. Hall v. State, 303 So.2d 428 (Fla. 2d DCA 1974).

REVERSED.

SCHEB and OTT, JJ., concur.


author: BOARDMAN, Judge.

text:
    STATE of Florida, Appellant, v. William AKERS, Appellee.
    No. 78-1486.
    District Court of Appeal of Florida, Second District.
    Feb. 14, 1979.

      Jim Smith, Atty. Gen., Tallahassee, and Robert J. Landry, Asst. Atty. Gen., Tampa,, for appellant.
    Jack 0. Johnson, Public Defender, and P., Douglas Brinkmeyer, Asst. Public Defender, Bartow, for appellee.
   BOARDMAN, Judge.

The state appeals an order dismissing the escape count of an information filed against-appellee William Akers for failure to allege facts sufficient to establish a prima facie case.

Appellee was charged in Count I of a three-count information with escape in violation of Section 944.40, Florida Statutes (1977). Appellee filed an amended motion to dismiss the count against him pursuant to Florida Rules of Criminal Procedure, Rule 3.190(c)(4), alleging:

1. That on the 14th day of June, 1978, at approximately 11:00 o’clock P.M., the Defendant was on Pier 60, Clearwater Beach, Florida, at which time he was arrested by Officer J. Gravely of the Clearwater Police Department for Disorderly Intoxication and was handcuffed.
2. That one John Hinkel then interfered with Defendant’s arrest, this occurring while the Defendant was still standing on or near Pier 60.
3. That while Officer Gravely turned away from the Defendant and was attending to Mr. Hinkle, the Defendant ran away and was apprehended in less than twenty minutes only two blocks away.
4. That at no time was the Defendant placed in the patrol cruiser.
5. That as a result of the above incident, the Defendant was charged with the offenses of Resisting Arrest Without Violence, Escape and Disorderly Intoxication.
6. That there are no material disputed facts and the undisputed facts do not establish a prima facie case of guilt against the Defendant.

The state responded that the facts and other matters alleged by appellee were not sufficient to constitute lawful grounds for dismissal.

Section 944.40, Florida Statutes (1977), provides that:

Any prisoner confined in any prison, jail, road camp, or other penal institution, state, county, or municipal, working upon the public roads, or being transported to or from a place of confinement who escapes or attempts to escape from such confinement shall be guilty of a felony of the second degree .

Section 944.02(5), Florida Statutes (1977), states that ‘[p]risoner’ means any person who is under arrest and in the lawful custody of any law enforcement official . . .” Construing the statutes in pari materia, we conclude that the legislature intended that any person under arrest and in the lawful custody of a law enforcement official who escapes while being transported to or from a place of confinement shall be guilty of a felony.

We acknowledge that prior to the amendment of these statutory provisions in 1971, only persons who were convicted and sentenced could violate the provisions of Section 944.40, Florida Statutes (1969). Brochu v. State, 258 So.2d 286 (Fla. 1st DCA 1972). Florida courts have interpreted the present escape statute to include confinement after arrest but prior to conviction and sentencing. Estep v. State, 318 So.2d 520 (Fla. 1st DCA 1975). Such confinement is not limited to confinement in jail. Johnson v. State, 357 So.2d 203 (Fla. 1st DCA 1978). For conviction under the escape statute, the state need show only (1) the right to legal custody and (2) a conscious and intentional act of the defendant in leaving the established area of such custody. Watford v. State, 353 So.2d 1263 (Fla. 1st DCA 1978).

Appellant admits that he was in lawful custody and that he fled from the scene without permission of the arresting officer. We do not believe that the legislature perceived that the phrase found in Section 944.40 “being transported to or from a place of confinement . . .” should be interpreted as meaning that a defendant must be in a penal institution at the time of escape. To do so might result in allowing a “prisoner” to simply walk away after he was lawfully arrested and in lawful custody without penalty. Such a strained result, to say the very least, is contrary to both the intent and the meaning of this statutory proscription.

Lastly, the distraction caused by the interference of the third person who prevented the arresting officer from immediately taking appellant to jail does not alter our decision.

The order of the trial court dismissing Count I of the information is reversed and that count is reinstated.

REVERSED and REMANDED for proceedings consistent with this opinion.

GRIMES, C. J., and DANAHY, J., concur.


text:
    STATE of Florida, Appellant, v. In the Interest of J. A., JR., and in the interest of A. M. F., Appellees.
    Nos. 78-1574 and 78-1653.
    District Court of Appeal of Florida, Second District.
    Feb. 14, 1979.

      Robert L. Shevin, Atty., Gen., Tallahassee, and Michael A. Palecki and C. Marie King, Asst. Attys. Gen., Tampa, for appellant.
    Jack O. Johnson, Public Defender, Bar-tow, Karal B. Rushing, Asst. Public Defender, Tampa, for appellee J. A., Jr.
    William Murphy, Asst. Public Defender, Tampa, for appellee A. M. F.
   GRIMES, Chief Judge.

Is a delinquency petition timely when filed on a Monday which is the thirty-first day after the complaint has been referred^ to the intake officer?

In each of these cases, the thirtieth day following the date of referral was a Sunday. The petitions were filed the following Monday. Both petitions were dismissed as untimely filed.

Section 39.05(7), Florida Statutes (1977), states that “a petition alleging delinquency-shall be dismissed with prejudice if it was' not filed within thirty days from the date the complaint was referred to the intake office.” However, Fla.R.Juv.P. 8.330(a)' provides that, when computing any period of time prescribed by statute when the last day falls on a Saturday, Sunday, or legal’ holiday, the period shall be extended until the end of the next day which is neither a Saturday, Sunday nor legal holiday. We must, therefore, decide whether the method of computing the thirty-day period is a matter of procedure subject to the constitutional rule-making authority of the supreme court.

Substantive law prescribes duties and rights under our system of government, and the legislature is responsible for enacting such law. Procedural law concerns the means and methods to apply and enforce those duties and rights, and the supreme court determines procedural law through the promulgation of rules. Benyard v. Wainwright, 322 So.2d 473 (Fla.1975). Substantive law creates, defines and regulates rights, while procedural law is the legal machinery by which substantive law is made effective. State v. Garcia, 229 So.2d 236 (Fla.1969).

In Finley v. State, 168 So.2d 201 (Fla. 2d DCA 1964), the state moved to dismiss on the ground that the defendant’s notice of appeal was not timely filed. A statute in force at that time required appeals to be filed within ninety days from the date of the judgment or sentence. The ninetieth day fell on a Sunday and the notice of appeal was filed on the following Monday. Rule 3.18 of the Florida Appellate Rules provided that if an act was required to be performed on a day certain and such day fell on a Saturday, Sunday or legal holiday, the act should be performed on the next day which is neither a Saturday, Sunday or legal holiday. Our court rejected the state’s contention that the appeal time ended on Sunday. In holding that the rule controlled, we said that it “does not extend the time set by the legislature — it merely defines the manner in which the statutory time is to be computed.” Accord, Carlile v. Spofford, 65 So.2d 545 (Fla.1953); Mick v. Florida State Bd. of Dentistry, 338 So.2d 1297 (Fla. 1st DCA 1976); cf. Zeller v. Industrial Research, Inc., 77 So.2d 616 (Fla.1955). If a rule pertaining to the computation of time can be declared procedural so as to permit appellate jurisdiction to be invoked by the filing of an appeal beyond the number of days specified by statute, then it is logical to assume that another statutory time period may be similarly extended when no question of jurisdiction is involved.

The juveniles rely on S. R. v. State, 346 So.2d 1018 (Fla.1977), in which our supreme court held that the mandatory dismissal required under the statute superseded the permissive dismissal authorized under the predecessor to Fla.R.Juv.P. 8.110(e). But this ease did no more than to establish that when a petition for delinquency is not timely filed, the juvenile has a substantive right to have the petition dismissed with prejudice. The case did not deal with how the time should be computed because the petition was admittedly filed out of time.

We interpret the method of time computation contained in Fla.R.Juv.P. 8.330(a) to be a rule of procedure to be used in implementing the substantive right-granted by Section 39.05(7), Florida Statutes (1977). Therefore, pursuant to Fla.R. Juv.P. 8.330(a), when the last day of the thirty-day period prescribed by Section 39.-05(7) falls on a Sunday, the period ends on the next day which is not a Saturday, Sunday or legal holiday.

Since the petitions for delinquency under consideration were filed within the statutory thirty-day period, the court erred in dismissing them as untimely filed.

REVERSED.

BOARDMAN and DANAHY, JJ., concur.


text:
    Konrad WALTHER, Appellant, v. Sal MIRABELLA and Pamalina Mirabella, Appellees.
    No. 78-1336.
    District Court of Appeal of Florida, Second District.
    Feb. 16, 1979.
    Rehearing Denied Feb. 16, 1979.
    Jeffrey Pattinson, Crystal River, for appellant.
    Clark A. Stillwell of Tucker, Hicks, Blanchard, Brannen & Stillwell, Inverness, for appellees.
   PER CURIAM.

Appellant/plaintiff Konrad Walther appeals the final summary judgment entered in favor of appellees/defendants Sal and Pamalina Mirabella in an action for specific performance of a written contract for the sale of real property. We reverse.

It is well settled, and it is not necessary to cite cases in support thereof, that summary judgment should not be granted if there is a genuine issue as to any material fact. In such instance summary judgment disposition is precluded as a matter of law. Fla.R.Civ.P. 1.510(c).

Without reciting the factual situation involved in this case, it is evident to us that it does not lend itself to summary judgment procedure. We are aware that it does appear from the face of the contract that all of its terms were not complied with. However, although we make no judgment as to the merits of appellant’s action, we agree with him that there is a material fact issue as to whether a waiver of the date by which the contract was to be signed was created by the conduct of the parties in this particular situation. Furthermore, we note that the Supreme Court of Florida has held that the question of waiver is usually a fact question. See, e. g., Stephenson v. Stephenson, 52 So.2d 684 (Fla.1951).

Accordingly, the summary judgment entered by the trial court against the purchaser should be reversed and the cause is remanded for further proceedings consistent with this opinion.

REVERSED and REMANDED.

HOBSON, A. C. J., and BOARDMAN and SCHEB, JJ., concur.


text:
    Donald PORTER, Appellant, v. The STATE of Florida, Appellee.
    No. 76-2040.
    District Court of Appeal of Florida, Third District.
    Feb. 19, 1979.
    Mark King Leban and Joe N. Unger, Miami, for appellant.
    Jim Smith, Atty. Gen., and Anthony C. Musto, Asst. Atty. Gen., for appellee.
    Before PEARSON, HENDRY and SCHWARTZ, JJ.
   ON RECONSIDERATION, PURSUANT TO REMAND

PER CURIAM.

Subsequent to the filing of our former opinion in this cause, see Porter v. State, 356 So.2d 1268 (Fla. 3d DCA 1978), the State of Florida petitioned for certiorari in the Supreme Court of Florida. The Supreme Court granted certiorari and remanded the cause, 364 So.2d 892, for further proceedings consistent with the recent decision of the Supreme Court in Clark v. State, 363 So.2d 331 (Fla.1978).

Pursuant to the order of the Supreme Court, we have allowed the filing of additional briefs by the appellant and the appel-lee, having heard argument, and have reached the conclusion that the Supreme Court’s decision in Clark v. State, supra, must be applied to this appeal and that the application of that decision to the facts of this case requires an affirmance of the decision of the trial court.

Accordingly, having found that no error is presented by the appeal of Donald Porter, defendant, our opinion in this cause filed March 7, 1978, and reported at 356 So.2d 1268, and the mandate of this court, issued April 21,1978, are withdrawn and the judgment and sentence heretofore entered in the cause by the trial court are affirmed.

Affirmed.


author: SMITH, Acting Chief Judge. BOOTH, Judge,

text:
    Michael Roy MIMS, Appellant, v. STATE of Florida, Appellee.
    No. GG-84.
    District Court of Appeal of Florida, First District.
    Feb. 20, 1979.
    Michael J. Minerva, Public Defender, and Janice G. Scott, Asst. Public Defender, Tallahassee, for appellant.
    Robert L. Shevin, Atty. Gen., and Raymond L. Marky, Asst. Atty. Gen., Tallahassee, for appellee.
   SMITH, Acting Chief Judge.

Mims and Hutto were jointly charged and tried for burglary. Mims’ motion for a separate trial was denied. During the joint trial, over objection by Mims, the state was permitted to adduce evidence of oral and written confessions given by Hutto which implicated Mims. A passing attempt to disguise Hutto’s incriminating references to Mims was made by substituting pronouns and other words in place of Mims’ name. The altered confession thus read in part as follows:

Question: On 19 December, 1976, were you at a cabin on the Oklawaha River with another subject? Answer: Yes, sir. Question: Did either of you pull or push in the screen to the back door? Answer: Another person did.
Question: Did the two of you then go through the screen and onto the porch? Answer: Yes.
Question: Who went in first? Answer: The other person.
Question: What happened after you and he were on the porch? Answer: He told me to look into the house and see how pretty it is and then he said he was going to get in and he asked me about a hunting knife. I told him I didn’t carry one, and he got a lawnmower blade and that is what was used.
Question: What did he use the mower blade for? Answer: To pry the door.

Other testimony established that Mims and Hutto were together near the cabin at the time when, under the state’s theory of the case, the cabin was entered. The jury could not have supposed that Hutto referred to anyone other than appellant Mims in his incriminating statement, brother was another character in the scenario, but Hutto’s quoted statement referred independently to Mims’ brother, and so could not have been understood by the jury as referring to anyone but appellant Mims himself. Mims was convicted of trespass. Mims’

The receipt in evidence of Hutto’s statement, unsatisfactorily expurgated, deprived appellant Mims of his right to confront and cross-examine the witnesses against him, including co-defendant Hutto, who did not testify. Bruton v. United States, 391 U.S. 123, 88 S.Ct. 1620, 20 L.Ed.2d 476 (1968); Cook v. State, 353 So.2d 911 (Fla. 2d DCA 1977). The evidence of appellant’s guilt was not so overwhelming as to render the error harmless. See Harrington v. California, 395 U.S. 250, 89 S.Ct. 1726, 23 L.Ed.2d 284 (1969).

REVERSED.

ERVIN, J., concurs.

BOOTH, J., dissents.

BOOTH, Judge,

dissenting.

There is no showing that the trial court, in denying the motion for severance, abused its discretion as that discretion is defined most recently by the Florida Supreme Court in Menendez v. State, 368 So.2d 1278 (1979).

Rule 3.152(2), Florida Rules of Criminal Procedure, provides for the procedure used by the trial court in the instant case with respect to the co-defendant’s statement. That Rule is, in pertinent part, as follows:

“If a defendant moves for a severance of defendants on the ground that an oral or written statement of a codefendant makes reference to him but is not admissible against him, the court shall determine whether the State will offer evidence of the statement at the trial. If the State intends to offer the statement in evidence, the court shall order the State to submit its evidence of such statement for consideration by the court and counsel for defendants and if the court determines that such statement is not admissible against the moving defendant, it shall require the State to elect one of the following courses:
(i) a joint trial at which evidence of the statement will not be admitted;
(ii) a joint trial at which evidence of the statement will be admitted after all references to the moving defendant have been deleted, provided the court determines that admission of such evidence with deletions will not prejudice the moving defendant; or
(iii) severance of the moving defendant. . . . ” (e. s.)

The rationale of the majority effectively precludes use of the foregoing procedure and overrides without appropriate consideration the exercise of the trial court’s discretion. Menendez, supra.

Further, it is clear that the rule of Harrington v. California, 395 U.S. 250, 89 S.Ct. 1726, 23 L.Ed.2d 284 (1969) and Schneble v. Florida, 405 U.S. 427, 92 S.Ct. 1056, 31 L.Ed.2d 340 (1972) applies because the error, if any, was “harmless beyond a reasonable doubt.” Mims was convicted of trespass, not burglary. By Mims’ own admission he was present at the cabin on the day in question. The co-defendant’s statement, even if clearly understood by the jury as applying to Mims, corroborated Mims’ admission and did not prejudice him. Cook v. State, 353 So.2d 911, 917 (Fla. 2nd DCA 1977). The jury chose to disbelieve Mims’ story of having the owner’s permission to be at the cabin. Mims’ entry on the premises was therefore unlawful and his conviction for trespass should be affirmed.

I respectfully dissent.


text:
    James CHERRY, Appellant, v. STATE of Florida, Appellee.
    No. LL-98.
    District Court of Appeal of Florida, First District.
    Feb. 20, 1979.
    Michael J. Minerva, Public Defender, and Randolph P. Murrell, Asst. Public Defender, for appellant.
    Robert L. Shevin, Atty. Gen., and Raymond L. Marky, Asst. Atty. Gen., for appel-lee.
   PER CURIAM.

The offenses charged herein, two counts of burglary of a structure, were third degree felonies punishable by imprisonment of up to five years. Sections 810.02(3), and 775.082, Florida Statutes (1977). However, the sentence given to appellant was a prison term of five years, each count to run concurrent, but after two years, a probationary term of five years. This sentence exceeded the maximum five year sentence by two years and was thus an illegal sentence. See, e. g. Green v. State, 354 So.2d 135 (Fla. 1st DCA 1978). Accordingly, appellant’s sentence is modified to reduce the period of probation from five years to three years.

Appellant’s other points being without merit, the judgment is affirmed and the sentence is affirmed as modified.

McCORD, C. J., and MELYIN and BOOTH, JJ., concur.


author: PEARSON, Judge. HAVERFIELD, Chief Judge,

text:
    George ROBINSON, Individually and as personal representative of the Estate of Jean Robinson, Deceased, Appellant, v. ALLSTATE INSURANCE COMPANY, Morris Beck, Eugene Willard Simmons, Joyce Simmons, Charles Kreiker, Eutychos Rolle, and Industrial Fire and Casualty Insurance Company, Appellees.
    Nos. 77-1362, 77-1577.
    District Court of Appeal of Florida, Third District.
    Feb. 20, 1979.

      Horton, Perse & Ginsberg and Edward A. Perse; Freidin & Goldfarb, Miami, for appellant.
    Adams & Ward and Amy Shield Levine, Weissenborn & Burr and Lee Weissenborn, Miami, for appellees.
    Before HAVERFIELD, C. J., and PEARSON and HENDRY, JJ.
   PEARSON, Judge.

George Robinson, individually, and as personal representative of the estate of Jean Robinson, deceased, appeals two separate orders entered after jury verdicts in an action that he brought for the wrongful death of his wife. Mr. Robinson’s wife, Jean, was killed in a four car automobile collision when she was a passenger in a car driven by an individual named Rolle. He is not a party to this action. The car driven by Mr. Rolle and one driven by a Mr. Beck were proceeding north on Biscayne Boulevard in the vicinity of Miami Shores. The Boulevard there is a four-lane road with two lanes in each direction. At the time of the accident, there was heavy rain and the road was slick. Two cars were proceeding south toward the Rolle and Beck cars. These two cars were driven by Mr. Kreiker and Mrs. Simmons.

The evidence is susceptible to several different interpretations of how the accident occurred. Rolle testified that he was hit in the rear. A matching of paint samples indicated the car that had hit him in the rear was the Beck car. The Beck car may have been caused to strike the Rolle car because of a prior striking by an automobile driven by Kreiker. As a result of being struck in the rear, the Rolle car went into the southbound land and was struck broadside on the passenger side by the Simmons car. Jean Robinson was fatally injured. The appellant (plaintiff in the trial court) settled with the defendants responsible for the Kreiker vehicle and, at trial, as personal representative of Jean Robinson’s estate, recovered a verdict of $76,255, as well as a verdict of $50,000, as the surviving husband, against defendants Beck and Simmons.

After the entry of jury verdicts, the trial court entered a directed verdict for the defendants Beck and Allstate Insurance Company upon their renewed motion. A final judgment was entered for these defendants. Also, after the verdict, the trial judge entertained defendant Simmons’s motion for new trial, and entered an order granting the motion and setting forth the following grounds:

******
. . the Court having determined that the verdict in this cause shocked the Court’s conscience, and that the said verdict was induced by prejudice and passion on the part of the jury rather than being based on the evidence and the law, and that the verdict was contrary to the manifest weight of the evidence, . .

The plaintiff has appealed the final judgment entered upon the directed verdict for Beck and has separately appealed the order granting a new trial to the defendant Simmons. In addition, defendant Beck has cross-assigned error claiming prejudice in certain rulings of the trial court during the progress of the trial.

THE DIRECTED VERDICT FOR DEFENDANTS BECK AND ALLSTATE

Plaintiff urges that the directed verdict for defendant Beck should be reversed because there was evidence before the jury sufficient to sustain the verdict finding Beck guilty of negligence. In effect, plaintiff urges that the entry of the directed verdict violates the principle set forth in Nelson v. Ziegler, 89 So.2d 780 (Fla.1956); and Cooper v. Fenton Brace & Limb Company, 350 So.2d 1106 (Fla. 3d DCA 1977). In the Cooper opinion, we held:

“The law is clear that a directed verdict should not be entered for a defendant in a negligence action unless the plaintiff cannot recover under any reasonable view of the evidence; even where the evidence is not in dispute, when conflicting reasonable inferences may be drawn from the admitted facts, questions of negligence and negligence causation are peculiarly questions of fact which should be permitted to go to the jury. Rio Seco v. Alfred Meyers Trucking, Inc., 208 So.2d 265 (Fla. 3d DCA 1968).”

Our review of the record convinces us that there is evidence in this record upon which a jury could reasonably believe that Beck struck the Rolle car and initiated the accident. This view is somewhat reinforced by the fact that paint samples taken from the front of the Beck car were cross-matched with those taken from the rear of the Rolle car and appeared to indicate a collision between the two. We, therefore, conclude that the directed verdict for Beck must be reversed.

We believe, however, that the granting of a new trial upon the plaintiff’s claim against Beck is necessary under the circumstances of this case. We, therefore, reverse the final judgment for defendants Beck and Allstate Insurance Company, but decline to direct the court to enter judgment upon the jury verdict. It is clear that the jury verdict was induced by a misunderstanding of the issues and by the same passion and prejudice that induced the entry of the verdict for the plaintiff against defendants Simmons and Allstate Insurance Company. See Lykes Brothers, Inc. v. Singletary, 190 So.2d 589, 592 (Fla. 2d DCA 1966).

THE ORDER GRANTING A NEW TRIAL TO DEFENDANTS SIMMONS AND ALLSTATE

The plaintiff urges that the law as set forth in prior cases, declaring that the trial judge has a broad discretion in the granting of motions for new trial, is no longer applicable. For the rule applied until recently by the appellate courts of Florida, see Cloud v. Fallís, 110 So.2d 669 (Fla.1959); and Pyms v. Meranda, 98 So.2d 341 (Fla.1957). The plaintiff urges that the recent opinion of the Florida Supreme Court in Wackenhut Corporation v. Canty, 359 So.2d 430 (Fla.1978), changes the law as it applies to the granting of a new trial. In that opinion, the Supreme Court stated:

“Although an order for new trial need not incant language to the effect that the verdict is against the manifest weight of the evidence or was influenced by considerations outside the record, the order must give reasons which will support one of these two conclusions so that it will be susceptible of appellate review. See Thompson v. Williams, 253 So.2d 897 (Fla. 3d DCA 1971). Order granting motions for new trials should articulate reasons for so doing so that appellate courts may be able to fulfill their duty of review by determining whether judicial discretion has been abused.
“Since the order for new trial is deficient because it does not contain reference to the record in support of its conclusion that remittitur of the punitive damage award is necessary to cure the excessiveness of the punitive damage verdict (its basis for requiring new trial), we have made an independent review of the record in search of support of that conclusion. We find none.”

The plaintiff argues that the Wackenhut opinion requires the reversal of an order granting a new trial unless the trial judge goes further than stating the magic words concerning the manifest weight of the evidence and passion or prejudice of the jury. We do not so read the opinion. It is clear that in the Wackenhut case, the Supreme Court examined the record, and found therein no basis for the trial court’s action. We have examined this record and we find that the trial court’s conclusions that the verdict was such as to shock the conscience of the court, that it was, indeed, induced by passion and prejudice rather than being based on evidence and law, and that the verdict was contrary to the manifest weight of the evidence are supported by the record. The record contains no evidence of the negligence of the driver of the Simmons automobile. The plaintiff suggests only that the force of the impact might show excessive speed. A mere speculation or inference of negligence is insufficient to support a jury verdict. See the rule in Ephrem v. Phillips, 99 So.2d 257, 261 (Fla. 1st DCA 1957). Under these circumstances, a new trial ought to be granted.

In the same order, it is noted that the verdict was such as to shock the conscience of the court. We find support in the record for this finding of the trial judge in the fact that the amount of damages awarded to the plaintiff is not supportable on any interpretation of the testimony and evidence before the court.

Having reached the conclusion that a directed verdict for the defendants Beck and Allstate Insurance Company must be reversed, but that the ends of justice require a new trial for these defendants, and having reached the further conclusion that the record supports the award of a new trial to defendants Simmons and Allstate Insurance Company, we, therefore, hold: (1) The final judgment appealed is reversed and remanded with directions to grant defendants Beck and Allstate Insurance Company a new trial, and (2) the order awarding a new trial to defendants Simmons and Allstate Insurance Company is affirmed.

We find no error upon defendant Beck’s cross-assignments of error.

Affirmed in part, reversed in part and remanded for a new trial.

HAVERFIELD, Chief Judge,

dissenting.

I cannot agree with the majority’s holding with regards to defendants Beck and Simmons.

As concerns Beck, the majority opinion finds that there was evidence in the record upon which a jury could reasonably believe that Beck struck the Rolle ear and initiated the accident. Therefore, under Nelson v. Ziegler, 89 So.2d 780 (Fla.1956), supra, and Cooper v. Fenton Brace & Limb Company, 350 So.2d 1106 (Fla. 3d DCA 1977), supra, the directed verdict should be reversed and the jury verdict should be reinstated. See Laird v. Potter, 367 So.2d 642 (Fla. 3d DCA 1979). There being competent substantial evidence to support the jury verdict, I fail to see how the verdict was induced by a misunderstanding of the issues and note that the trial judge made no such finding as to any misunderstanding or passion or prejudice on the part of the jury in the order granting Beck’s motion for judgment in accordance with motion for directed verdict.

I would also reverse the order granting Simmons a new trial. This order simply states the verdict was against the manifest weight of the evidence and, therefore, is deficient. See Wackenhut Corporation v. Canty, 359 So.2d 430 (Fla.1978). Having failed to articulate the reasons for a new trial, the order is not susceptible to appellate review. Travelers Indemnity Company v. Hicks, 363 So.2d 628 (Fla. 3d DCA 1978).

Further, after reviewing the record, I find that the verdict against Simmons was not against the manifest weight of the evidence. The record contains sufficient evidence as to the force of the impact (both physical and testimonial) upon which the jury could have concluded that Simmons was traveling at an excessive rate of speed under the prevailing road conditions existing at the time of the accident and, therefore was negligent.

For the above reasons, I would reinstate the jury verdicts against Beck and Simmons.

      . “COME NOW the Defendants, MORRIS BECK and ALLSTATE INSURANCE COMPANY as his insuror, by and through their undersigned counsel, and move the Court to set aside the Verdict of the jury and to enter Judgment in favor of these Defendants in accordance with their Motion for Directed Verdict, or, if the foregoing motion be denied, to set aside the Verdict and the Judgment entered on it and grant these Defendants a new trial on all issues herein and for grounds therefor, say:” [Emphasis Added]

      . Contrary to Simmons’ testimony.


text:
    John R. CARLSON, Appellant, v. Patricia L. CARLSON, Appellee.
    No. 77-2699.
    District Court of Appeal of Florida, Third District.
    Feb. 20, 1979.
    Albert J. Zemlock, Miami, Abraham Zem-lock, New York City, for appellant.
    Sidney B. Shapiro, North Miami Beach, Mitchell M. Goldman, Miami, for appellee.
    Before PEARSON, BARKDULL and HUBBART, JJ.
   PER CURIAM.

Affirmed. Sisson v. Sisson, 336 So.2d 1129 (Fla.1976); Shaw v. Shaw, 334 So.2d 13 (Fla.1976); Bucci v. Bucci, 350 So.2d 786, 788-89 (Fla.3d DCA 1977); Pfohl v. Pfohl, 345 So.2d 371, 379 (Fla. 3d DCA 1977); Rogoff v. Rogoff, 115 So.2d 456, 458 (Fla.3d DCA 1959).

BARKDULL, J., dissents.