author: MOORE, Judge. ANSTEAD, Judge,

text:
    Vance Leland THOMAS, Appellant, v. STATE of Florida, Appellee.
    No. 76-2071.
    District Court of Appeal of Florida, Fourth District.
    Feb. 28, 1978.
    Rehearing Denied April 18, 1978.

      Elton H. Schwarz, Public Defender, Stuart, for appellant.
    Robert L. Shevin, Atty. Gen., Tallahassee, and Harry M. Hipler, Asst. Atty. Gen., West Palm Beach, for appellee.
   MOORE, Judge.

This is an appeal from a conviction for delivery of marijuana. Appellant had also been charged with grand larceny and conspiracy to deliver marijuana. The State entered a nolle prosequi on the grand larceny count and, after a mistrial (hung jury) as to the conspiracy count, the State entered a nolle prosequi as to that count.

We reverse the conviction for delivery of marijuana because the evidence was insufficient to sustain the conviction.

Federal authorities had seized large quantities of marijuana from two vessels. The marijuana was being stored in the Martin County jail until it could be burned. Three officers of the Martin County Sheriff’s Office — Sergeant John Roberts, Captain Gerald Brown and Larry Wilson, a volunteer reserve deputy — testified that they stole some of the marijuana for the purpose of selling it to one Tony Helms.

Roberts testified that appellant had worked as an undercover agent for Brown and himself for six or eight months during which time appellant assisted the Sheriff’s office in setting up fake drug sales for the purpose of arresting prospective purchasers. These prior incidents were referred to by the State’s witnesses as legitimate law enforcement operations. The Sheriff’s office would provide an individual with the opportunity to purchase marijuana and upon completion of the purchase the purchaser would be arrested.

Appellant’s defense is that he believed the sale of marijuana to Helms was merely another legitimate law enforcement operation. The evidence is consistent with this defense and therefore presents a reasonable hypothesis of innocence. '

There was no evidence that appellant participated in the theft of the marijuana from the jail. Appellant became involved in the case only after the theft was completed. His principal role thereafter was to persuade Helms to pay more money for the marijuana. This is certainly consistent with an attempt by appellant to make the transaction appear to be legitimate. There was also testimony that appellant guarded the marijuana before it was delivered to Helms. Finally, it appears that appellant received a cut of the money from Helms. The receipt of money by appellant would be consistent with his compensation for services rendered as an undercover agent.

All of the evidence of appellant’s intention to participate in an unlawful delivery of marijuana is circumstantial. There is no direct proof of appellant’s knowledge of the illegality of the transaction. Roberts testified that he assumed that appellant knew what was going on, but that he had no facts to back that up. Furthermore, Wilson stated that he never told appellant that the marijuana was stolen from the jail. The only fact which might suggest to appellant that the Helms transaction was illegal, while the prior similar transactions were lawful, is that a greater quantity of marijuana was used in the Helms transaction than in the prior cases.

When proof of criminal intent consists exclusively of circumstantial evidence, the proof not only must be consistent with the guilt of the accused, but also must be inconsistent with any reasonable hypothesis of innocence. Codie v. State, 313 So.2d 754 (Fla.1975); Lockett v. State, 262 So.2d 253 (Fla. 4th DCA 1972). In view of appellant’s past participation in legitimate similar transactions with the same officers, the circumstantial evidence proving intent in the instant case is not inconsistent with a reasonable hypothesis of innocence; i. e., appellant believed he was assisting the Sheriff’s office in effectuating the arrest of Helms.

Therefore, appellant’s conviction for delivery of marijuana should be reversed and final judgment of acquittal entered.

REVERSED AND REMANDED.

DAUKSCH, J., concurs.

ANSTEAD, J., dissents with opinion.

ANSTEAD, Judge,

dissenting.

I believe there was sufficient evidence of the appellant’s direct involvement in the delivery of the marijuana to sustain his conviction. The evidence of his involvement was uncontradicted. The appellant did not testify. He relies solely on an inference he attempts to draw from his past activities with the police department. That inference, he contends, is that he believed this transaction was another legitimate police operation. However that inference is clearly inconsistent with the evidence that, in this transaction, he and the police officers were to share in the profits from the sale of the marijuana. I would affirm.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    Frank MORALES and Nancy Morales, husband and wife, Petitioners, v. The Honorable John H. MOORE, II and the Honorable W. Herbert Moriarty, Circuit Judges of the Seventeenth Judicial Circuit in and for Broward County, Florida, Respondents.
    No. 77-1055.
    District Court of Appeal of Florida, Fourth District.
    Feb. 28, 1978.
    Rehearing Denied April 10, 1978.
    Todd L. Smith, of Widoff, Marino & Smith, P. A., Fort Lauderdale, for petitioners.
    Nancy Little Hoffmann, and George E. Bunnell, of Huebner, Shaw & Bunnell, Fort Lauderdale, for Steven Michaels, D. P. M.
    Robert L. Shevin, Atty. Gen., Tallahassee, and Anthony J. Golden, Asst. Atty. Gen., West Palm Beach, for respondents.
   PER CURIAM.

Petitioners seek a writ of prohibition to prevent the appointment of a podiatrist to a medical liability mediation panel. We issued a Rule Nisi that directed the respondents to show cause why the writ should not be granted and also stayed further proceedings. Having now considered the arguments of the parties we conclude that prohibition is not the appropriate remedy; instead we exercise our discretion to treat the suggestion for writ of prohibition as a petition for common law writ of certiorari.

Petitioners filed a medical malpractice claim against two podiatrists and a hospital. The claim was assigned to a judicial referee. The hospital and the podiatrists requested that a podiatrist be appointed as the medical member of the mediation panel. The referee entered an order listing the names of five podiatrists. From these five the medical member of the mediation panel was to be chosen. The five were selected at random from a list of podiatrists that had been compiled by the chief judge of the circuit.

When the Legislature first established the procedure for medical liability mediation panels, claims based upon the alleged malpractice of podiatrists were not included. The statute was subsequently amended to include claims against podiatrists, Chapter 76-260, Laws of Florida (1976), but no provision was made for podiatrists to be included on the list from which members of the mediation panel are selected. Section 768.44(2)(a), Florida Statutes, gives the chief judge authority to complete a list of physicians licensed to practice under either Chapter 458 or Chapter 459. Podiatrists, however, are licensed under Chapter 461. Respondents argue that the omission of podiatrists in Section 768.44(2)(a) was a legislative oversight and that the court should supply the missing words. This we cannot do. Even though it might appear logical to include podiatrists on medical liability mediation panels, the wisdom of a legislative act is for the Legislature to determine. Also, more than a year has passed since the statute was amended to require that medical malpractice claims against podiatrists be submitted to mediation. If the failure to allow podiatrists to serve on mediation panels was an oversight, the Legislature, during its 1977 session, had the opportunity to correct that omission. Since it failed to do so we assume that podiatrists were intentionally omitted.

We conclude that respondents departed from the essential requirements of the law because they had no statutory authority to prepare or use a list of podiatrists for the selection of the medical member of a medical liability mediation panel and further that petitioners have no adequate remedy by appeal. We therefore grant certiorari and quash the part of the referee’s order that names podiatrists as prospective members of the mediation panel in this case.

Finally, we note that petitioners’ claim was filed on February 14,1977. Normally the jurisdiction of a medical liability mediation panel terminates ten months after the claim is filed. Perkins v. Pare, 352 So.2d 65 (Fla. 4th DCA 1977). In the present case more than ten months have now passed since the claim was filed, but part of the delay is attributable to us. The parties should not be deprived of their right to mediation because we stayed all proceedings pending our decision. Compare: State ex rel. Mercy Hospital, Inc. v. Vann, 342 So.2d 1073 (Fla. 3d DCA 1977); State ex rel. McGuirk v. Cowart, 344 So.2d 624 (Fla. 3d DCA 1977). Upon remand, the parties shall be allowed to complete the mediation hearing within that part of the ten-month period that remained when we stayed the proceedings on May 16, 1977.

CERTIORARI GRANTED.

ALDERMAN, C. J., and DOWNEY and LETTS, JJ., concur.


author: ERVIN, Judge.

text:
    BORG-WARNER ACCEPTANCE CORPORATION, Appellant, v. PHILCO FINANCE CORPORATION, a corporation, Appellee. ELDER MOVING & STORAGE COMPANY, Appellant, v. APPLIANCE BUYERS CREDIT CORPORATION, a corporation, Appellee.
    Nos. FF-452 and GG-320.
    District Court of Appeal of Florida, First District.
    March 1, 1978.

      Carle A. Felton, Jr. of Boyd, Jenerette, Leemis & Staas, Jacksonville, for appellant.
    William R. Swain, and Douglass E. Myers, Jr. of Webb, Swain & Watson, Jacksonville, for appellee.
    Kevin V. Canipelli of Schwartz & Bolinger, Jacksonville, for appellant.
    Carle A. Felton, Jr., William R. Swain, and Douglass E. Myers, Jr., of Webb, Swain & Watson, Jacksonville, for appellee.
   ERVIN, Judge.

These consolidated cases present us with the question whether an award of attorney fees was appropriate. Borg-Warner’s appeal claims its contract of indemnity with Elder did not make it liable to pay fees for attorneys supplied to Elder by Elder’s insurance company, Security Insurance. Elder’s appeal, brought by Elder’s private counsel, questions the propriety of the order directing a portion of the fee awarded be divided with insurance counsel.

Appliance Buyer’s Credit Corporation brought an action seeking to replevin certain merchandise against Van’s Appliance Center, which in turn filed a cross-claim against Elder Moving and Storage Company and Borg-Warner Acceptance Corporation based upon negligence, conversion, trespass and intentional interference with its business relationships as a result of its inventory’s repossession by Elder. Elder filed a cross-claim against Borg-Warner in two counts, alleging (1) that it performed certain services at the request of Borg-Warner, under the direct supervision of Borg-Warner, and that but for the actions of Borg-Warner, Elder would not be a defendant; (2) that it relied upon instructions of Borg-Warner in repossessing certain goods from Van pursuant to a written contract of agency. The general prayer for relief at the conclusion of the complaint sought damages against Borg-Warner for all damages which Elder might be liable to Van, including costs and attorney fees. While Elder’s insurance carrier undertook the defense, it gave notice no coverage was provided for conversion or punitive damages. Elder then hired private counsel to assist it in defending those claims. Summary judgment was entered in favor of Elder on both counts, finding it entitled to full indemnification from Borg-Warner as to any damages adjudged against Elder. The trial court awarded to it $16,300 in attorney fees, of that amount $8,909.80 was payable to insurance counsel.

Borg-Warner argues there is nothing in the contract obligating it to pay attorney fees for insurance counsel; that the contract only allows fees for which Elder is responsible — not those which Elder’s insurer provided. It additionally argues that since count one of the complaint did not include a specific demand for attorney fees, although count two did, Elder is precluded from any recovery as to the claim asserted under count one. Borg-Warner’s argument is without merit. The failure of Elder to include a specific request for attorney fees under count one matters not. Count two of its cross-claim specifically realleged paragraphs one-four of count one. It made a general prayer for attorney fees at the conclusion of its claim. It is sufficient that the prayer requesting attorney fees follow the complaint as a whole, whether it is referable to all or to one or more of several counts in the complaint. 61 Am.Jur.2d Pleading, section 120 (1972).

Borg-Warner misunderstands the purpose of an award for attorney fees. A fee money award is payable by one party to another as an indemnity for fees reasonably contracted or incurred, not by one party to the other’s lawyer, either as a debt or a penalty. Valparaiso Bank & Trust Co. v. Sims, 343 So.2d 967, 971 (Fla. 1st DCA 1977); Keena v. Keena, 245 So.2d 665 (Fla. 1st DCA 1971); Chaachou v. Chaachou, 135 So.2d 206 (Fla.1961). If the total sum awarded was a reasonable indemnity to Elder for fees which it incurred in defending Van’s action and in pursuing its cross-claim, Borg-Warner has no further interest in the allocation of the award. Borg-Warner has advanced no argument that the award, other than its allocation, was unreasonable. Nor has Borg-Warner appealed the summary judgment finding it liable on both counts of Elder’s cross-claim. While Elder’s claim for indemnity from Borg-Warner in count two relied strictly upon contract, count one was molded upon an active-passive theory of negligence. This ground of indemnity has long been recognized. Winn-Dixie Stores, Inc. v. Fellows, 153 So.2d 45 (Fla. 1st DCA 1963); Stuart v. Hertz Corporation, 302 So.2d 187 (Fla. 4th DCA 1974). The general rule is that reasonable fees may be recovered in an indemnity action whether the indemnity is implied by law or arises from contract. Morse Auto Rentals, Inc. v. Dunes Enterprises, Inc., 198 So.2d 652 (Fla. 3d DCA 1967). Moreover indemnity contracts have been construed as permitting a defendant’s insurer, which defended the cause and assumed responsibility for any judgment within the limits of the policy, to be subrogated to the rights of its insured. General Accident Fire and Life Assurance Corp., Ltd. v. Smith and Oby Co., 272 F.2d 581, 77 A.L.R.2d 1134 (6th Cir., 1959); Lesmark, Inc. v. Pryce, 118 U.S.App. D.C. 194, 334 F.2d 942 (1964).

Since we find no merit in Borg-Warner’s appeal, we similarly find no merit in the appeal by Elder’s private counsel arguing it alone is entitled to the total fee award.

The judgment is AFFIRMED.

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

      . The contract states in part:
      “The Depositor [Borg-Warner] shall pay all necessary costs and expenses and a reasonable attorney’s fee for which the Company [Elder] may be liable or compelled to pay in connection with such litigation . . .


text:
    Carleen Chalk LUND and Lund Realty, Inc., and Norman Wayne Lund, Petitioners, v. Charles E. KINNIG, Sr., and Florida Real Estate Commission, Respondents.
    Nos. 77-873, 77-874.
    District Court of Appeal of Florida, Fourth District.
    March 7, 1978.
    Rehearing Denied April 11, 1978.

      Benjamin T. Shuman, Orlando, for petitioners.
    Manuel E. Oliver, Altamonte Springs, and Howard Hadley, Winter Park, for respondents.
   PER CURIAM.

Our reading of the briefs and examination of pertinent parts of the record lead us to the conclusion that error has not been demonstrated in the Final Agency Order under review.

Accordingly, the Petitions for Writ of Certiorari are denied.

CROSS, DOWNEY and ANSTEAD, JJ., concur.


author: PER CURIAM. HUBBART, Judge PEARSON, Judge

text:
    Robert A. JANSEN, Appellant, v. The STATE of Florida, Appellee.
    No. 76-517.
    District Court of Appeal of Florida, Third District.
    March 7, 1978.
    Shaya Estrumsa, Miami, for appellant.
    Robert L. Shevin, Atty. Gen. and Arthur Joel Berger, Asst. Atty. Gen., for appellee.
    Before HAVERFIELD, C. J., and PEARSON and HUBBART, JJ.
   PER CURIAM.

Affirmed based on the following authorities: Codie v. State, 313 So.2d 754 (Fla.1975); Manning v. State, 336 So.2d 408 (Fla. 3d DCA 1976); Moore v. State, 299 So.2d 119 (Fla. 3d DCA 1974); Askary v. State, 294 So.2d 33 (Fla. 3d DCA 1974).

HUBBART, Judge

(concurring).

I concur in the court’s affirmance in this case. As to the appellant’s contention that it was error for the trial court to admit evidence of the defendant’s post-arrest silence, it is my view that (1) this question was not properly preserved for appellate review because the evidence was admitted without objection, and (2) the admission of such evidence was not fundamental error. Porter v. State, 356 So.2d 1268 (Fla. 3d DCA 1978) (Hubbart, J. dissenting); Gillian v. State (Fla. 1st DCA 1977) (case no. FF-59, opinion filed August 18, 1977); Clark v. State, 336 So.2d 468 (Fla. 2d DCA 1976); Farmer v. State, 326 So.2d 32 (Fla. 4th DCA 1976).

PEARSON, Judge

(dissenting).

I respectfully dissent. See Doyle v. Ohio, 426 U.S. 610, 96 S.Ct. 2240, 49 L.Ed.2d 91 (1976); Davis v. State, 342 So.2d 987 (Fla. 3d DCA 1977); Smith v. State, 342 So.2d 990 (Fla. 3d DCA 1977), and Thomas v. State, 342 So.2d 991 (Fla. 3d DCA 1977).


author: PER CURIAM. DAUKSCH, Judge,

text:
    Samuel MINKUS, Appellant, v. STATE of Florida, Appellee.
    No. 76-2043.
    District Court of Appeal of Florida, Fourth District.
    March 7, 1978.
    P. D. Aiken, Fort Lauderdale, for appellant.

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

AFFIRMED.

ALDERMAN, C. J., and ANSTEAD, J., concur.

DAUKSCH, J., dissents, with opinion.

DAUKSCH, Judge,

dissenting.

I must respectfully dissent. My reading of the affidavit in support of the order authorizing interception of oral (sic) communications (telephone wiretap) leads me to find it is insufficient to permit the tap. The last hard information concerning the telephone to be tapped was 31 days before the tap was authorized to commence. In my opinion it was stale information. Rodriguez v. State, 297 So.2d 15 (Fla.1974). The fact the affiant attempted to freshen his information by having some “reliable” confidential informant tell him that illegal activity was still being conducted through the subject telephone some 3 days before the application and order for wiretap is not sufficient because the confidential informant is not shown to be reliable. Spinelli v. U. S., 393 U.S. 410, 89 S.Ct. 584, 21 L.Ed.2d 637 (1969); Aquilar v. Texas, 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723 (1964). Additionally, I do not feel the affidavit sufficiently complies with Section 934.09(l)(c), Florida Statutes. The pertinent portion of the affidavit which attempts to comply with this requirement is:

“(7) Pursuant to Section 934.09(l)(c), Florida Statutes, a full and complete statement of why other investigative procedures reasonably appear unlikely to succeed are listed in the following:
(a)Because the physical surveillance of the organization, without the assistance of court authorized wire or oral interception, produces information which is repetitious and incomplete, the continued use of said technique unassisted by interception, places the investigation in jeopardy of discovery by the persons being surv-eilled, with little or no chance of successful conclusion.
(b) This operation is conducted primarily on a telephone located inside a private residence which provides no vantage point for the physical observation of the suspected illegal activities.
(c) Because of the high level placement of the above operation, in the stratum of illegal wagering operations, there is no possibility of identifying the other unidentified conspirators without the authorizations for interception of wire or oral communications.”

These statements are characterized by appellant as boilerplate recitations. I should say they are suspicions or conclusions not supported by facts. U. S. v. Kerrigan, 514 F.2d 35 (9th Cir. 1975); U. S. v. Cacaee, 529 F.2d 1167 (5th Cir. 1976). I should reverse the order denying the motion to suppress the evidence seized as a result of that wiretap.


text:
    SHEARSON HAYDEN STONE, INC., a Foreign Corporation, Appellant, v. Carlyle W. SEYMOUR and Erlyne Seymour, residents of Duval County, Florida, Appellees.
    No. FF-158.
    District Court of Appeal of Florida, First District.
    March 8, 1978.
    Rehearing Denied April 17, 1978.

      G. Kenneth Norrie, of Rogers, Towers, Bailey, Jones & Gay, Jacksonville, for appellant.
    William E. Williams and William P. Healy, of Mahoney, Hadlow & Adams, Jacksonville, for appellees.
   ERVIN, Judge.

Shearson’s interlocutory appeal seeks review of an order granting the Seymours’ motion for partial summary judgment which found it liable for trespass, denying Shearson's motion for summary judgment and its motion to strike the Seymours’ demand for punitive damages. The lower court concluded that Shearson was collaterally estopped by a prior New York judgment vacating a levy of attachment, not appealed by Shearson, which made it liable by application of New York law to the Seymours in their action for trespass in Florida.

Shearson argues the principle of estoppel by judgment does not apply for several reasons, one being that the findings of fact recited by the New York court were erroneous and therefore not binding in the later Florida action. Shearson’s argument is not a correct statement of the law. The doctrine of collateral estoppel applies to questions of fact adjudged in the original action which, as a result, cannot be disputed in a second action, even though the determination was reached upon an erroneous view or an erroneous application of the law. United States v. Moser, 266 U.S. 236, 242, 45 S.Ct. 66, 69 L.Ed. 262 (1924). Shearson as a result was precluded from relitigating facts previously decided against it, even though the facts may have been erroneously stated in the prior court’s judgment.

Shearson next argues certain facts were either not at issue or were not specifically ruled upon by the New York court, therefore the New York judgment dismissing Shearson’s levy on property belonging to the Seymours was not binding upon the Florida court in the later, separate action for trespass. This argument brings into focus precisely what facts or issues were litigated in the prior action so as to become binding upon Shearson in the later action.

The principles of either res ad judicata or estoppel by judgment provide the primary test in determining the applicability of the full faith and credit clause of the federal constitution, Article IV, Section 1. Gordon v. Gordon, 59 So.2d 40 (Fla.1952), cert. den., 344 U.S. 878, 73 S.Ct. 165, 97 L.Ed. 680 (1952). Thus a judgment of a foreign jurisdiction must be accorded full faith and credit in a subsequent action between the same parties when the evidence relied upon in the second suit, necessary to sustain the latter action, was essentially the same as that which was given or would have been required had the complaining party testified in the prior suit. If the second suit is bottomed upon a different cause of action, estoppel by judgment comes into play and only those matters actually litigated and determined in the initial action are foreclosed — not other matters which might have been, but were not, litigated or decided. Thus where the causes of action are different, the judgment in the first suit only estops the parties from litigating in the second suit issues which were actually adjudicated in the prior litigation, and the testimony in the second suit must be essentially the same as that which was produced in the former action. Id. at 45. The rule is in essence the same in New York. A fact, once decided in an earlier suit, is conclusively established between the parties in the later suit, provided it was necessary to the result in the first suit. Hinchey v. Sellers, 7 N.Y.2d 287, 197 N.Y.S.2d 129, 165 N.E. 156 (1959).

It is necessary to establish, since the rights of the parties in the trespass action are governed by the law of the place where the tort was committed, Ganem v. Ganem de Issa, 269 So.2d 740, 746 (Fla.3d DCA 1972), cert. den., 414 U.S. 1113, 94 S.Ct. 844, 38 L.Ed.2d 740 (1973), whether the law of New York, as applied to the facts found by the court in the attachment action, leads to the conclusion that there is no genuine issue of material fact on the question of Shear-son’s liability to the Seymours in the subsequent action of trespass brought in Florida.

New York courts generally recognize three types of attachment actions which may or may not, depending upon which of the three categories the prior attachment action falls into, subject the attachment plaintiff to a later action in trespass. First, if a writ of attachment is void, it furnishes no justification to the party seeking the attachment, and he is liable in a later action for what has been done under it at any time, and it is not necessary that the attachment be set aside before maintaining the second action. Second, if the writ is irregular only, and not absolutely void, no action lies until it has been set aside, but once it is set aside it ceases to be any protection to the attachment plaintiff for acts done under it while it is in force. Third, if the writ was regularly issued, in a case where the court had jurisdiction, the attachment plaintiff may justify what was done under it after it has been set aside for error in the judgment or proceeding. Day v. Bach, 87 N.Y. 56, 61 (1881); Siegel v. Northern Boulevard and 80th Street Corp., 31 A.D.2d 182, 295 N.Y.S.2d 804, 807 (1968).

If the attachment action falls into the third category, where the action was mere error, the only redress is upon the undertaking which is the “source and measure of liability.” Subin v. United States Fidelity and Guar. Co., 12 A.D.2d 49, 52, 208 N.Y. S.2d 278 (1960). If, however, a summons is not served on the defendant in an action within the time required by law, the court loses jurisdiction, and the attachment is rendered unauthorized and void from the beginning, and the warrant will not justify acts done under it. Ruser v. Union Distilling Co., 7 Misc. 396, 27 N.Y.S. 920 (N.Y., Common Pleas, 1894). Thus the attachment creditor is liable in a later action “as a trespasser for acts done under a void warrant. . . . ” Id. at 922. It follows the law in New York is that if property is levied upon outside the time required by law, the attachment is rendered unauthorized and void. Ibid. The only remaining question is whether that issue was decided by the New York court so as to estop Shear-son from raising any defense which it might otherwise have available to it in the subsequent Florida action.

It is clear from a reading of the New York judgment, although it was bottomed upon different grounds, that the issue was determined. The court held that since the res was not seized within 60 days from the issuance of the first order of attachment, it had no jurisdiction over the res. It also held the seizure could only have been made pursuant to the first order of attachment, therefore payment could not have been made as a result of the second order since it preceded both the sheriff’s levy and Hutton’s notice of that order. The court therefore made an explicit ruling, not appealed by Shearson, that it had no jurisdiction over the res due to the failure of Shearson to comply with the time limitations imposed by New York law. Those findings were binding upon Shearson and precluded it from raising matters which it argues were not specifically ruled upon by the prior judgment. The lower court’s partial summary judgment in favor of the Seymours is affirmed.

The Seymours’ motion to dismiss points two and three of Shearson’s brief is granted since we have no jurisdiction under Fla.App.R. 4.2a to consider in an interlocutory appeal the denial of Shearson’s motion for summary judgment and the refusal of the lower court to grant its motion to strike Seymours’ prayer for punitive damages.

AFFIRMED.

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

      . Shearson had originally sued out a writ of attachment against any property found by the sheriff within his jurisdiction. The levy of attachment was subsequently vacated by a New York civil court whose judgment stated:
      “This is a motion by defendants for an order to dismiss the complaint for lack of jurisdiction pursuant to CPLR 3211(a)(8) or in the alternative to dismiss complaint upon grounds of forum non conveniens pursuant to CPLR 327 and, if dismissal is ordered, for ancillary relief pursuant to CPLR 6214(G), 6218, 6224 & 6225 for return of seized property for judgment on the undertaking. The facts are not in dispute and need not be recited herein.
      There is no doubt that the court lacks in personam jurisdiction for defendants never transacted business in New York with anyone.
      The June order of attachment was invalid at the time of payment Res was not seized nor service of process effectuated within 60 days from the granting of the order of attachment (CPLR 6213). Payment could not have been made pursuant to second order of attachment in August as it preceeded [sic] both sheriffs levy thereunder and E. F. Hutton & Company, Inc.’s notice of such order.
      A check drawn on an out of State bank and not securities were transmitted to the sheriff. The Res was a credit balance owed by the Jacksonville, Florida branch of E. F. Hutton & Company, Inc., a brokerage house doing business throughout the world and was not within the jurisdiction of the sheriff and could not be attached. Therefore this attachment must be vacated and defendants’ motion on these grounds is granted.”


text:
    Herman JONES, Appellant, v. STATE of Florida, Appellee.
    No. GG-265.
    District Court of Appeal of Florida, First District.
    March 8, 1978.
    Rehearing Denied April 11, 1978.

      Michael J. Minerva, Public Defender, for appellant.
    Robert L. Shevin, Atty. Gen. and Raymond L. Marky, Asst. Atty. Gen., for appel-lee.
   PER CURIAM.

Jones was convicted of unlawfully obtaining property by means of a worthless check he knew to be worthless, contrary to Section 832.05(3), Florida Statutes (1975). Jones’ sole point on appeal is that the trial court committed reversible error by denying his requested instruction that intent to defraud is an essential element of the crime proscribed by Section 832.05(3), Florida Statutes (1975).

This court’s recent decision in Adams v. State, 356 So.2d 346 (Fla. 1st DCA 1978), considered the identical issue, and held that intent to defraud is not an essential element of the offense proscribed by Section 832.05 (3). Therefore, the judgment and sentence are

AFFIRMED.

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


author: McCORD, Chief Judge.

text:
    STATE of Florida, Appellant, v. Stephen Richard MOORE, Appellee.
    No. HH-376.
    District Court of Appeal of Florida, First District.
    March 13, 1978.
    Rehearing Denied April 19, 1978.

      Robert L. Shevin, Atty. Gen. and Wallace E. Allbritton, Asst. Atty, Gen., for appellant.
    Larry G. Turner, Gainesville, for appellee.
   McCORD, Chief Judge.

This is a petition for writ of certiorari seeking review of the order granting the defendant’s Motion to Compel Discovery and requiring that the State disclose the location of the secondary vehicle identification number of certain vehicles involved in the present case.

The defendant was charged with receiving stolen property — a 1975 Corvette. The vehicle was determined to be stolen only through a computer check of the secondary vehicle identification number. In pre-trial depositions, the police officers refused to disclose the location of such number. At the hearing on the Motion to Compel Discovery, the defendant argued that the location of the secondary vehicle identification number should be disclosed to verify that the number reported by the police officers was accurate.

The State urges that the location of the secondary vehicle identification number is privileged and that disclosure is not required unless materiality is shown. Gurleski v. United States, 405 F.2d 253 (5th Cir. 1968), cert. denied, 395 U.S. 977, 89 S.Ct. 2127, 23 L.Ed.2d 765 (1969); United States v. Nasse, 432 F.2d 1293 (7th Cir. 1970). Each case cited by the State involved nondisclosure of the secondary vehicle identification at trial. Further the value of such disclosure to the defense was only speculative.

While we agree that a privilege against public disclosure of the location of the secondary vehicle identification number should be recognized for public policy reasons, we consider that the trial court’s order can be modified to allow sufficient disclosure to verify that the secondary identification number supplied by the police officers is imprinted upon the vehicle; that such would protect the confidentiality of the location of the number and allow sufficient disclosure to protect the defendant’s right to identification.

The court’s order required that the location of the secondary vehicle identification number be disclosed through one of the following procedures:

(1) The State disclose to the defendant’s attorney the location of the number with the specific provision that the defendant’s attorney be enjoined from disclosing this information to the defendant.
(2) The State disclose to an official court reporter the location of the number. The court reporter was then ordered to verify its location and the number by way of a sealed transcript to the court.

We hold that provision (2), previously set forth, if modified to enjoin the reporter from disclosing the location to anyone other than the trial judge, would properly balance the defendant’s right to discovery with the public policy demanding confidentiality of such numbers. In fact, this method does not differ significantly from that employed and approved in In re David W., 62 Cal.App.3d 840, 133 Cal.Rptr. 342 (2d DCA 1976). Therein, the trial court appointed an independent expert witness to examine the location of the secondary vehicle identification number. The witness examined such number and made a tape impression of it to verify the accuracy of the reported number. In the case, sub judice, the judge, upon examining the court reporter’s verification, may advise the defendant whether or not the confidential number has been verified.

As to provision (1), the record does not show that it is necessary to the defense of the case that defendant’s attorney be apprised of the location of this confidential number. Provision (1) is therefore not approved.

The petition for writ of common law cer-tiorari is granted. The order is affirmed in part and reversed in part and remanded for modification of the trial court’s order to comply with this opinion.

BOYER and MELVIN, JJ., concur.

      . Automobiles have two vehicle identification numbers — one known as the “public” vehicle identification number and one known as the “secondary” vehicle identification number. The location of the secondary vehicle identification number is apparently known only to the vehicle manufacturers and certain persons concerned with the identification of vehicles for insurance and law enforcement purposes.


author: BURNSTEIN, MIETTE K., Associate Judge. DOWNEY, Judge,

text:
    GENERAL PORTLAND LAND DEVELOPMENT COMPANY and Greater Florida Investment Company, a joint venture d/b/a Old Port Cove, Appellants, v. Marvin Lee STEVENS and Mary Catherine Stevens, Hembree Masonry, Inc., a Florida Corporation, Appellees.
    No. 76-1279.
    District Court of Appeal of Florida, Fourth District.
    March 14, 1978.
    Rehearing Denied April 18, 1978.

      Marjorie D. Gadarian of Jones, Paine & Foster, West Palm Beach, for appellants.
    Nancy Little Hoffmann of Druck, Grim-mett, Norman, Weaver & Scherer, Ft. Lauderdale, for appellees.
   BURNSTEIN, MIETTE K., Associate Judge.

An Amended Complaint, alleging that the Plaintiff suffered injury as a result of a negligently operated buck hoist, was filed June 1971, against the Defendants, General Portland Land Development Company and The Greater Florida Investment Company (hereinafter referred to as Old Port Cove), and Hembree Masonry, Inc., (hereinafter referred to as Hembree). Hembree owned and leased the hoist to Old Port Cove, who cross-claimed that Hembree was an independent contractor furnishing the operator as well as the hoist.

On January 13th, 1973, the Plaintiffs and Hembree entered into a “Mary Carter Agreement”, acknowledging joint liability with Old Port Cove and limiting recovery of Hembree. This agreement was not admitted into evidence.

The trial of January 19th, 1973, resulted in a verdict in favor of the Plaintiffs and against Old Port Cove, totalling $234,000.00. The verdict further stated, “We further find for the Defendant, Hembree Masonry, Inc.” Final Judgment on the verdict in favor of the Plaintiff and against Old Port Cove was entered on February 26th, 1973, nunc pro tunc as of January 19th, 1973. Old Port Cove paid the Judgment and perfected its appeal on March 26th, 1973, which resulted in a reversal and remand for the refusal of the trial court to admit the Mary Carter Agreement into evidence.

More than two months after the appeal was filed the trial court entered a Corrective Judgment, purportedly resolving all issues of liability against Old Port Cove and in favor of Hembree on the Cross-Claim.

On remand, an Amended Cross-Claim was filed November 5th, 1974, by Old Port Cove against Hembree and joining Aetna Insurance Company, Hembree’s insurer, according to the Mary Carter Agreement. Trial was scheduled for May 10th, 1976.

On August 7th, 1975, Plaintiff’s Motion to be dismissed as parties on the basis that the Judgment had been paid by Old Port Cove and the Plaintiffs had no interest in the outcome of the pending litigation was granted.

In the interim, Old Port Cove obtained a Judgment of $234,000.00 in a separate suit against Ronald Weber, the operator of the buck hoist.

On April 21st, 1976, Old Port Cove moved for partial summary judgment on the issue of Weber’s negligence, claiming that this issue had been determined in the suit against Weber. Hembree moved for summary judgment on the basis of res adjudica-ta, estoppel by judgment, collateral estoppel or estoppel by verdict and the law of the case. Hembree’s Motion was granted and the Order stated “ . . . under the circumstances of this case, Old Port Cove has no right of indemnity . . . ” from Hembree. It is the Final Judgment entered upon this Order which forms the basis for the present appeal.

The issues raised by appellant Old Port Cove are:

1. Whether the Court erred in entering Summary Final Judgment for Hem-bree on the basis that the claim for indemnity was barred by res adjudi-cata, estoppel by judgment, collateral estoppel, estoppel by verdict and law of the case.
2. Whether the Court erred in entering Final Summary Judgment for Hem-bree on the basis that Old Port Cove had no right of indemnity against Hembree.

Hembree maintains that the Judgment entered May 21st, 1973, was dispositive of the issue of liability between the Cross-Defendants and that since the Judgment was not appealed, it forms the basis of the res adjudicata claim.

Such position cannot be maintained. The appeal terminated the jurisdiction of the lower court to proceed in the subject matter of the appeal until the appeal is determined or unless authorized by the appellate court. Strauser v. Strauser, 303 So.2d 663 (Fla. D.C.A. 4th 1974) Hutchison v. Wintrode, 286 So.2d 231 (Fla. D.C.A. 2nd 1973)

Hembree relies on Fulton v. Poston Bridge & Iron, Inc., 122 So.2d 240 (Fla. D.C.A. 3rd 1960) to assert the position that the trial court retains jurisdiction for purposes of correcting its judgments.

However, the Fulton case contemplates clerical corrections and not those corrections which could change the status of the case so as to interfere with the rights the appellant may have asserted on appeal. The Order of May 21st, 1973, was void as being outside the jurisdiction of the trial court.

Since the Judgment rendered on February 26th, 1973, was the subject of an appeal which was reversed and remanded, clearly it cannot form the basis of res adju-dicata. De Nafo v. Finch, 436 F.2d 737 (3rd Cir., 1971)

Where a Judgment is of such a nature that the rights of several co-parties are of a derivative or interdependent nature and injustice might result from a reversal as to less than all the parties, the appellate court will reverse the judgment as to all. Brookbank v. Mathieu, 152 So.2d 526 (Fla. D.C.A. 3rd 1963), 5B C.J.S. Appeal and Error § 1919 at page 411.

Further, a judgment which is reversed and remanded for new trial without specifying or limiting the issues to be retried is deemed to renew the entire case. Kenan v. Black, 150 Fla. 208, 7 So.2d 462 (1942)

The trial court concludes by its Order dated May 17th, 1976, that Old Port Cove has no right of indemnity from the Cross-Defendants. This conclusion presupposes certain findings of facts — facts which were adduced from the trial which was subsequently reversed, or from the allegations of the Plaintiff’s original Complaint. Old Port Cove was not bound by the original allegations of the Plaintiff’s Complaint that Old Port Cove was actively negligent. The Defendant is not “locked in” by the Plaintiff’s allegations of active negligence, so as to preclude the Defendant from alleging in a Third Party Complaint that the Third Party is actively negligent. Central Truck Lines, Inc. v. White Motor Corp., 316 So.2d 579 (3 D.C.A. 1975); Crawford Door Sales Company, Inc. v. Donahue, 321 So.2d 624 (2 D.C.A. 1975)

The test of whether allegations stating a cause of action in indemnity are sufficient should not be determined on a Motion for Summary Judgment. The Court must look to facts to prove an active/passive relationship of the tortfeasors upon which the claim of indemnity can rest. Stuart v. Hertz Corporation, 351 So.2d 703 (Fla.1977).

Accordingly, the Judgment appealed is reversed and remanded.

DAUKSCH, J., concurs.

DOWNEY, J., concurs specially, with opinion.

DOWNEY, Judge,

concurring specially:

I agree that the summary judgment was improperly entered and that the cause should be remanded for further proceedings on Old Port Cove’s Amended Crossclaim.

I,therefore, concur in the result only.

      . General Portland Land Development Co. v. Stevens, 291 So.2d 250 (4 DCA 1974).


author: LETTS, Judge.

text:
    Chris ROBINSON, Appellant, v. CINEMA INTERNATIONAL, LTD., Appellee.
    No. 76-2020.
    District Court of Appeal of Florida, Fourth District.
    March 14, 1978.
    Larry Klein, West Palm Beach, and Cone, Owen, Wagner, Nugent, Johnson & McKeown, P. A., West Palm Beach, for appellant.
    Warren J. Knaust, of Militana, Militana & Militana, St. Petersburg, for appellee.
   LETTS, Judge.

This case involves a complaint for replev-in and an appeal from the trial court’s action striking a counterclaim thereto, with prejudice. We reverse.

The appellant kept possession of the actual film, shot for a motion picture which he had been commissioned, by the appellee, to produce, direct and act in. The appellee filed a replevin action to recover same and the appellant filed a counterclaim alleging that he was supposed to become a 50% owner of the picture and that this co-ownership agreement had been breached.

Said counterclaim was struck, with prejudice, by the trial court for the sole reason that:

“The court [is] of the opinion that by the very nature of the replevin action . no counterclaim may be asserted. .

One has only to read the appellee’s brief to reconstruct what law must have been cited to the trial judge to cause the latter to make this error. (The appellee did not appear for oral argument before this court). Up until 1967, Florida was possessed of Statute § 46.08, Fla.Stat. (1965), which read in part:

“Causes of action, of whatever kind, by and against the same parties in the same rights, may be joined in the same suit, except that replevin and ejectment shall not be joined together nor with other causes of action.”

We need not speculate whether the above would properly forbid a counterclaim, as distinct from forbidding a multicount complaint, because the quoted language was removed from the statute books by Chapter 67-254, Laws of Florida, § 3, under which only the venue provisions of the removed section survived to become § 47.041, Fla. Stat. (1975). Accordingly, the line of Florida cases supporting the judge’s ruling were all decided prior to the repeal of § 46.08 and cannot now be relied on. See Seven Seas Frozen Products, Inc. v. Fast Frozen Foods,Inc., 43 So.2d 181 (Fla.1949); Butler v. Mirabelli, 179 So.2d 868 (Fla. 2d DCA 1965), and National Leasing Corp. v. Bombay Hotel, 159 So.2d 111 (Fla. 3d DCA 1964).

Nor do we construe § 78.02(3) to bar a counterclaim in a replevin action as it appears to us that this latter section simply forbids a defendant from the re-replevin of property which has already been replevined, in the same cause, by the opposing party.

Research does not reveal any recent Florida cases which pass on the propriety of filing a counterclaim in an action for re-plevin, although Fla.R.Civ.P. 1.170(b) would appear to permit it. The general rule in other jurisdictions, however, is that such counterclaims are permitted. In 66 Am. Jur.2d, Replevin, § 48, it is stated on page 866:

“In most jurisdictions, often by statutory provision, the general rule that a setoff or counterclaim is allowable where it arises out of the same transaction as that on which the plaintiff’s cause of action is founded, or where it involves the same subject matter, has been applied to permit defenses by way of counterclaim or setoff in replevin or similar actions for the recovery of personal property.”

An example of a case where such was held to be proper is Linscomb v. Goodyear Tire and Rubber Co., 199 F.2d 431 (8th Cir. 1952), in which the purchaser of a burned down warehouse salvaged some property, belonging to former tenants and still having value. The former tenants brought an action for replevin, but the purchaser was permitted to obtain judgment on his counterclaim for the reasonable value of his services rendered to salvage the property.

In the present case, the claim for replevin is based on a film on which the appellant worked. His counterclaim is for damages for breach of contract, arising out of the production of the same movie. It is thus clear that the counterclaim and the original claim both arise out of the same single transaction. We see no legal, nor policy, reason why defendant’s counterclaim cannot be litigated along with the original cause.

REVERSED AND REMANDED.

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


author: ANSTEAD, Judge.

text:
    In re ESTATE of Philip SADOW, Deceased.
    No. 76-2114.
    District Court of Appeal of Florida, Fourth District.
    March 14, 1978.
    Rehearing Denied April 11, 1978.
    Elliott B. Barnett and Glenn N. Smith of Ruden, Barnett, McClosky, Schuster & Schmerer, Fort Lauderdale, and William G. Crawford, Jr., Fort Lauderdale, for appellant Doris Jean Sadow.
    H. T. Maloney and J. B. Patterson of Patterson, Maloney & Shankweiler, Fort Lauderdale, for appellees Elaine Dorothy Dinowitz and Irving Jason Sadow.
   ANSTEAD, Judge.

This is an appeal from a final judgment declaring the marriage between the deceased, Philip Sadow, and the appellant, Doris Jean Sadow, invalid by reason of the deceased’s incompetency.

Philip Sadow married the appellant on November 19,1975. At the time he was 80 years of age and she was 46. Although there was conflicting testimony about his mental condition, the evidence was undisputed that Philip was in very poor health and suffered from various afflictions, including Parkinson’s disease and cancer. He died on February 17,1976. Extensive testimony was presented by both sides as to Philip’s mental condition both prior to and after the marriage.

The appellant initially claims that there was not sufficient evidence to sustain the trial court’s finding that Philip Sadow was incompetent at the time of the marriage. However, our review of the record reveals that although the evidence was in conflict, there was abundant evidence to support the trial court’s determination.

The appellant also claims that the trial court erroneously failed to consider whether Philip Sadow ratified the marriage of November 19, 1975, by his actions subsequent thereto. This argument is not supported by the record. The issue being tried by the court was whether the marriage of November 19, 1975, was valid. The appellees attempted to prove the marriage was invalid by showing that Philip was not only incompetent on November 19, 1975, but that he was incompetent prior thereto and remained incompetent thereafter until the time of his death. The appellant asserts that even if there is a question of Philip’s competency on November 19, that question is resolved by the proof submitted that Philip subsequently acknowledged and ratified the marriage. That proof, even if accepted, would have only served to validate the marriage which took place on November 19. But that proof was controverted. The net result is that the trial court found the marriage to be invalid, and there is substantial evidence in the record to support that conclusion.

In addition we note that, after the close of the evidence at the trial, the appellant argued to the trial court:

The relevance [sic] date for determining the competency to contract marriage is the date of the marriage. Now, evidence prior to that date, evidence subsequent to that date, is probative, but it is not conclusive.

No mention of ratification was made in appellant’s argument to the trial court. A review of the record shows that the issue of ratification is being formally raised by the appellant for the first time on appeal. The issue was not raised by pleading, motion, argument, or petition for rehearing in the court below; and there is no specific assignment of error directed to the issue. Presumably, the issue is being raised here under the general complaint that the trial court erred in entering judgment against the appellant. We do not believe the appellant can fault the trial court under these circumstances.

Accordingly, the judgment of the trial court is affirmed.

DAUKSCH, J., and CRAWFORD, GRADY L., Associate Judge, concur.

      . Nicholas v. First Interstate Development, 315 So.2d 238 (Fla. 4th DCA 1975); Joe Hatton, Inc. v. Conner, 247 So.2d 782 (Fla. 4th DCA 1971); Morrison v. Thoelke, 155 So.2d 889 (Fla. 2d DCA 1963).


author: DAUKSCH, Judge.

text:
    John Arthur THOMAS, Appellant, v. STATE of Florida, Appellee.
    No. 76-2465.
    District Court of Appeal of Florida, Fourth District.
    March 14, 1978.
    Rehearing Denied April 10, 1978.

      Richard L. Jorandby, Public Defender, Frank B. Kessler, and Larry S. Weaver, Asst. Public Defenders, West Palm Beach, for appellant.
    Robert L. Shevin, Atty. Gen., Tallahassee, and Anthony J. Golden, Asst. Atty. Gen., West Palm Beach, for appellee.
   DAUKSCH, Judge.

Appellant was convicted of robbery and sentenced to life imprisonment with a minimum of three years since a gun was used. Section 775.087, Florida Statutes (1975). At the time of sentencing the trial judge said:

“Well, the Court would like to have discretion to order such a presentence investigation report, but the language of Section 775.087 specifically provides that the Court shall proceed, notwithstanding the provision of Chapter 948.01 or Section 948.01 of the Florida Statutes. 948.01 is that section of the Florida Statutes which provides for the ordering of a presentence investigation. So, the only conclusion which this Court can arrive at is that it is the intention of the Legislature that the Court proceed to pronounce sentence at this time in such a case.” (T-241-242)

This interpretation of Section 775.087, Florida Statutes (1975) is erroneous. That statute says the court cannot suspend, defer or withhold adjudication or sentence, it does not say the court cannot order a presen-tence investigation before judgment or sentence is passed. To send a man to prison for life without any consideration whatsoever of his background except that he was found guilty of robbery is not in the best interests of society.

Section 775.087, Florida Statutes (1975) says no deferment, suspension or withholding of adjudication or sentence. Deferred sentencing is not permitted. Helton v. State, 106 So.2d 79 (Fla.1958); State v. Bateh, 110 So.2d 7 (Fla.1959); McMillan v. State, 321 So.2d 441 (Fla. 2 DCA 1975); Jones v. State, 336 So.2d 672 (Fla. 1 DCA 1976); State v. Sweetman, 302 So.2d 164 (Fla. 4 DCA 1974). See also Cunningham v. State, 349 So.2d 702 (Fla. 4 DCA 1977). A suspended sentence is only available if a person is placed on probation. Section 948.-01(4) and (5) (1975) Helton v. State, supra. Withholding sentence is referred to in Section 948.01(3) and (4) (1975) and appears to be defined interchangeably with suspended sentence. Withholding and suspension of adjudication and sentence means the court declines to convict (adjudicate guilty) the defendant or fine or imprison him until probation is tried. Withholding or suspending adjudication or sentence in a felony case can only be done when the defendant is put on probation. Section 948.01(3), Florida Statutes (1975). If the defendant successfully completes his probation he is not a convicted person but if the probation is violated the court may then adjudicate and sentence.

The purpose of a presentence investigation is to assist the sentencing judge in determining a fair sentence for the defendant and society. Section 948.01(2), Florida Statutes (1975) says the sentencing judge shall order a presentence investigation report in every felony case. Section 775.087, Florida Statutes (1975) says adjudication and sentence shall not be suspended, deferred or withheld but it does not say the sentencing judge should blindly proceed to sentence without the most valuable, if not necessary, assistance of a presentence investigation report.

The judgment is affirmed and the sentence reversed and this cause remanded for resentencing after a full and complete pre-sentence investigation is made and the report considered by the sentencing judge prior to resentencing.

REVERSED and REMANDED.

ANSTEAD, J., and CRAWFORD, GRADY L., Associate Judge, concur.

      . See also the interesting article, Pobjecky, Sentencing Options, 51 Fla.Bar J., No. 1 (1977).


text:
    J. Moran TOOLE, Appellant, v. Delaine S. TOOLE, Appellee.
    No. 77-109.
    District Court of Appeal of Florida, Fourth District.
    March 14, 1978.
    Rehearing Denied April 17, 1978.
    James J. Belcher of Law Offices of James J. Belcher, Fort Lauderdale, for appellant.
    Donald L. Burrie, Pompano Beach, for appellee.
   PER CURIAM.

Our study of the briefs and record in this cause convinces us that this is not an appropriate case for the allowance of lump sum alimony. Accordingly, we reverse the judgment appealed and remand the cause to the trial court with directions to amend the judgment by allowing reasonable permanent periodic alimony which, of course, will be subject to modification as the circumstances of the parties may change.

REVERSED AND REMANDED WITH DIRECTIONS.

DOWNEY, ANSTEAD and LETTS, JJ., concur.


author: CROSS, Judge.

text:
    John Edward GRAY, Appellant, v. STATE of Florida, Appellee.
    No. 77-221.
    District Court of Appeal of Florida, Fourth District.
    March 14, 1978.
    Rehearing Denied April 18, 1978.
    Richard L. Jorandby, Public Defender, Frank B. Kessler and Marc E. Kirk, Asst. Public Defenders, West Palm Beach, for appellant.
    Robert L. Shevin, Atty. Gen., Tallahassee, and Robert L. Bogen, Asst. Atty. Gen., West Palm Beach, for appellee.
   CROSS, Judge.

Appellant, John Edward Gray, was charged by information under count one with the criminal offense of burglary of a structure with the intent to commit larceny, and under count two thereof with displaying a weapon while committing or attempting to commit a felony. Appellant was convicted, adjudged guilty, and sentenced under count one for attempted burglary of a structure and under count two for displaying a weapon. This appeal then followed.

Several points on appeal are raised by appellant. However, only one merits discussion, and that is needed in order to clarify dicta appearing in Bownes v. State, 345 So.2d 787 (Fla.4th DCA 1977). In Bownes, the ease was reversed and remanded to the trial court for resentencing on the basis of an unnecessary restriction imposed under terms of probation. The appellant in Bownes was convicted of attempted burglary, and therein attempted burglary was characterized as a first degree misdemean- or. The great weight of authority, as expressed by our sister courts, recognizes that attempted burglary is a third degree felony, a view which we herein adopt. State v. Wilcox, 351 So.2d 89 (Fla.2d DCA, Opinion filed November 2, 1977); State ex rel. Washington v. Rivkind, 350 So.2d 575 (Fla.3d DCA, Opinion filed October 11, 1977); Massey v. State, 348 So.2d 1244 (Fla.1st DCA 1977); Opin.Atty.Gen. 077-112 (1977).

We have considered the remaining points raised on appeal and determined them to be without merit. Accordingly, the judgment is affirmed.

Affirmed.

ALDERMAN, C. J., and DURANT, N. JOSEPH, JR., Associate Judge, concur.


text:
    Joseph BRADLEY, Appellant, v. STATE of Florida, Appellee.
    No. 77-703.
    District Court of Appeal of Florida, Fourth District.
    March 14, 1978.
    Rehearing Denied April 10, 1978.
    Louis M. Silber of Cone, Owen, Wagner, Nugent, Johnson, & McKeown, P. A., West Palm Beach, for appellant.
    Robert L. Shevin, Atty. Gen., Tallahassee, Richard P. Zaretsky, and Glenn H. Mitchell, Asst. Attys. Gen., West Palm Beach, for appellee.
   LETTS, Judge.

Appellant pled nolo contendere to a robbery charge reserving his right to appeal the denial of his (1) motion to suppress the evidence seized, (2) motion to suppress the out of, and in, court identifications and (3) his motion to suppress his confession. We find no merit on appeal concerning the trial judge’s ruling on the first and second motions, but believe the third should have been granted. We reverse.

Without lengthy discourse, we would reiterate our holding in Jarriel v. State, 317 So.2d 141 (Fla. 4th DCA 1975) to the effect that an accused may not be improperly urged by direct or implied promises to make a statement, in violation of the basic tenet of law that a confessing defendant should be entirely free from the influence of hope or fear. Jarriel, supra, at 142. In so restating, we do not attempt to depart in any way from the holding in Paramore v. State, 229 So.2d 855 (Fla.1969) wherein our Supreme Court held, inter alia, that a confession is not rendered inadmissible merely because it is induced by deception or because the accused is told it will be easier on him if he tells the truth.

In the case at bar, we perceive more than a suggestion that it would, or might, go easier or better for the accused if he confessed. Here the accused testified, in essence, that his interrogator stated that he could get him a “deal” which would result in a lighter sentence from the judge. This is more than a commitment from the police to do whatever they can to make it easier for the accused; this is, at the very least, a promise to deliver some form of relief in return for the confession.

We have been asked to review such obviously self serving testimony before and have often left such to be resolved by the trier of the fact where police witnesses have taken the stand and denied the making of any promise to deliver a “deal” as an accomplishable certainty. However, no such rebuttal was offered here. On the contrary, the assistant state attorney conceded that the officer may have “promised [the accused] things” and that he (the assistant state’s attorney) was “not so sure that is not true, knowing [the] detective . as I do and it’s a distress to me that I have to make that statement in open court.”

Such candor is refreshing and commendable, because all attorneys are, first and foremost, officers of the court. By contrast, the detective about whom the remarks were made, should be ashamed to be thus spoken of by a police prosecutor.

WE REVERSE AND REMAND FOR A NEW TRIAL.

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


author: DOWNEY, Judge.

text:
    Roger G. HEIM, Trustee, Appellant, v. Thomas R. KIRKLAND, Trustee, Thomas R. Kirkland, Individually, and Gloria J. Kirkland, his wife, and Umatilla State Bank, a Florida Corporation, Appellees.
    No. 77-1285.
    District Court of Appeal of Florida, Fourth District.
    March 14, 1978.
    Rehearing Denied April 13, 1978.

      Calvin J. Faucett, Orlando, for appellant. Gerald S. Livingston, Orlando, for appel-lee-Thomas R. Kirkland.
    Zebulon L. Osborne, Eustis, for appellee-Umatilla State Bank.
   DOWNEY, Judge.

Appellant Roger C. Heim, trustee, takes this interlocutory appeal in an action to foreclose a mortgage from an order of the trial court striking appellant’s prayer for a deficiency decree.

The mortgage and note in question contained a provision that the land described in the mortgage was to stand as the sole security with no further recourse against the maker-mortgagor. However, in his complaint appellant prayed for an accounting of the principal, interest, late charges, abstracting, taxes, expenses and costs due from the mortgagor, and for a deficiency decree should a deficiency result. Appel-lees moved to strike the portions of the prayer relative to the claim for taxes, costs, attorney’s fees and any claim for a deficiency, based upon the provision of the note and mortgage designating the land as the sole security and precluding any further recourse against appellees. The trial court entered an order thereon, holding in pertinent part:

“The Court finds, by virtue of the provisions of the note attached to the mortgage, Exhibit ‘A’ to the Complaint, that the Mortgagor, THOMAS R. KIRKLAND, Trustee, has no personal liability for payment of principal or interest on the mortgage note or for late charges, or for abstracting charges, taxes, expenses, costs or attorney’s fees incurred by reason of this suit, and that the foregoing constitute a lien upon the property only. Accordingly, the Defendants’ Motion to Strike Plaintiff’s prayer for deficiency judgment against the Defendants be, and is hereby, granted and the claim for deficiency judgment against the Defendants be, and is hereby struck from the Complaint filed herein,”

We fail to find any error in the order being reviewed. The mortgagor-maker covenanted that he would pay the taxes and other charges so that, as against the land, in the event of a default and foreclosure of the mortgage the mortgagee would be entitled to a judgment for the principal, interest, taxes, attorney’s fees and any other appropriate charges. However, because of the no recourse provisions of the contract the mortgagee was not entitled to a deficiency judgment against the mortgagor-maker for any sums over and above the amount which a sale of the property might bring.

Accordingly, the order appealed from is affirmed.

AFFIRMED.

CROSS and DAUKSCH, JJ., concur.


text:
    KAR RARE OWNERS GROUP OF FLORIDA, LTD., a Florida Limited Partnership, MBS Management Corp., a Florida Corporation, General Funding Corporation, a North Carolina Corporation, First National Bank in Shelby, North Carolina, John R. Swaim and Garl W. Swaim, jointly and severally, Petitioners, v. John M. CHASON, Respondent.
    No. 77-1848.
    District Court of Appeal of Florida, Fourth District.
    March 14, 1978.
    Rehearing Denied April 13, 1978.

      Dennis R. Long, of Farish & Farish, West Palm Beach, for petitioners.
    Douglas C. Fulton, of Wearn & Fulton, West Palm Beach, for respondent.
   LETTS, Judge.

We are concerned here with the refusal of the trial court to set aside a final summary judgment upon motion to do so, based on allegations of ignorance of the progress of the litigation, claimed by the losing parties. We affirm.

This case comes to us upon a petition for common law certiorari, which method we conclude to be proeedurally erroneous, because an order denying a motion to vacate a final judgment is a final appeal-able order. Crystal Lake Golf Course, Inc. v. Kalin, 252 So.2d 379 (Fla. 4th DCA 1971). The respondent argues, also incorrectly, that the available appellate review here, should have been by interlocutory appeal. It is an order denying a motion to vacate a default judgment which is appealable as an interlocutory matter under Fla.App. Rule 4.2. See also Travelers Insurance Company v. Bryson, 341 So.2d 1013 (Fla. 4th DCA 1977). The order before us is an order denying a motion to vacate a summary final judgment and thus a plenary appeal is the appropriate remedy. Crystal Lake Golf Course, supra.

Notwithstanding these technical defects, we accept jurisdiction and treat this as a full appeal under the authority of Roper v. Roper, 336 So.2d 654 (Fla. 4th DCA 1976).

We do not, however, consider the question of whether there were issues of fact precluding the granting of summary judgment in the first place. The summary judgment itself has not been appealed and thus is not the issue brought before us. The issue appealed, simply stated, is whether the motion to vacate stated sufficient grounds to require the trial judge to grant the motion and whether his failure to do so constituted an abuse of discretion. We conclude that it did not.

The grounds set forth in the motion command attention. Fla.R.Civ.P. 1.540(b) provides that the court may grant relief to a party on the grounds of mistake, inadvertence, surprise or excusable neglect; and the appellant attempts to set forth, by affidavits and by direct testimony, at the hearing, all of these. The main ones included:

(1) He changed addresses and didn’t get his mail (except by some stroke of providence, the final judgment).

(2) He didn’t know his attorney had been granted leave to withdraw from the case.

(3) His attorney, upon withdrawal, had given the court, the old address, from which he (Swaim) had moved.

(4) That he had had no communication with, or from, his former attorney for approximately 11 months, knew nothing of what was going on and his attorney at all times had his telephone number.

We are not privy to what went through the trial judge’s mind regarding the credibility of these various explanations, but they were largely uncontroverted. Nonetheless, we are struck by two facets of this case that prevent us from being able to say that the trial judge abused his discretion.

First, at the hearing on the motion to vacate and set aside, opposing counsel said:

“At that hearing, [the motion to withdraw as counsel] the Court specifically inquired of [counsel for the defendants] whether or not the defendants had been informed of his motion to withdraw, and I believe the Court was satisfied that they had been informed, and also asked [counsel] to include in the order a copy of the address where other pleadings shall be furnished to the defendants. And that was included at the very end of the order, [counsel for the defendants] having prepared that order.”

This representation, by an officer of the court (as to what opposing counsel in turn had represented at a previous hearing when he sought to withdraw) went unrefuted and unchallenged despite the fact that the attorney who withdrew was present and testified. The appellant has not brought us a record of what actually transpired at the motion to withdraw. However, if the withdrawing attorney did tell the court that his clients knew he was withdrawing and if the judge was reminded of that fact upon the making of the above quoted representation, then we cannot say that the trial court abused its discretion by denying the motion to set aside the judgment.

There is a second reason why we will not disturb the ruling of the trial judge. We do not believe that the conduct of the defendants constituted excusable neglect under Fla.Civ. Rule 1.540(b).

The record reveals that right from the beginning of this lawsuit, the defendants repeatedly failed to abide by the court’s procedures and rulings. Nonetheless, they had direct continuous contact with their former counsel, up through May 6th, 1976, when the answers to the interrogatories were finally filed in response to an order granting sanctions against them. It does not appear that this is a spurious lawsuit, and even if we adopt all of the defendants’ own explanations for the neglect, we cannot conclude other than that they were guilty of inexcusable, rather than excusable, neglect.

After John R. Swaim had replied to the interrogatories addressed to all of the defendants on May 6th, 1976 he, by his own admission, apparently went to ground and neither heard, nor did anything further, about the suit (nor did his fellow defendants) until he received the final summary judgment on April 11, 1977 — some 11 months of total abstinence. Nor did he contact, or try to contact, his attorney, nor wonder why he never heard from him, despite the fact that in July of 1976 (only two months after he provided the answers to the interrogatories) he moved his address. Simple prudence would dictate that when one is being sued on a serious matter, such as this, (with possible criminal side effects) one would positively notify his attorneys as to his exact whereabouts and not depend on the vagaries of the re-routing process of the U.S. Mails. At least, when he heard nothing for several months he should have en-quired.

At the hearing to set aside the summary judgment, the same John S. Swaim testified that his former attorney at all times had had his telephone number, which did not change. We seriously doubt that this was sufficient excuse, because, if his attorney did not know that his clients were not receiving the mail being sent, there would be no reason to telephone. On the other hand, if Swaim is correct that his former lawyer should have telephoned him, then there was inexcusable neglect on the part of his former counsel in failing to inform him of:

the motion to withdraw
the motion for sanctions
the motion to set cause for trial
the order granting sanctions (which included the threat of default judgment).

all of the above being filed BEFORE former counsel withdrew.

Somewhere, somehow, there was inexcusable neglect and while the pinpointing of that could become the subject of a separate proceeding, it cannot be said that the trial judge abused his discretion in this case.

We would conclude by citing Winter Park Arms, Inc. v. Akerman, 199 So.2d 107 (Fla. 4th DCA 1967) wherein the court recognized that litigants cannot disregard the processes of the court and then expect relief, unless they offer excuses for their own negligence. In our opinion, we cannot say that the trial judge was in error because he failed to find these particular excuses acceptable under the total circumstances of this case.

AFFIRMED.

DOWNEY and DAUKSCH, JJ., concur.

      . This opinion was written on or about February 15th prior to the adoption of the new appellate rules. The advent of the new rules in no way affects the result however, so the opinion has been left unaltered. See Fla.App. Rule 9.130(a)(5) (1978).

      .The fact that he replied on behalf of all the defendants, appeared on behalf of all the remaining defendants at the hearing to set aside the summary judgment and the fact that the attorney for all remaining defendants gave John R. Swaim’s address as the place to serve all remaining defendants, appears to us to effectively dispose of the argument that he had no legal standing to bind them.

      . None of the mail was ever returned.

      . We do not suggest that we believe a cause of action exists.


text:
    Henry A. KELLER, Jr., Appellant, v. Christal C. KELLER, Appellee.
    No. 77-2204.
    District Court of Appeal of Florida, Third District.
    March 14, 1978.

      Levine, Reckson & Reed and Robert S. Geiger, Miami, for appellant.
    • Koeppel, Stark & Newmark, Miami, for appellee.
    Before HAVERFIELD, C. J., and HEN-DRY and NATHAN, JJ.
   PER CURIAM.

This is an interlocutory appeal by appellant from a post mandate order denying appellant a credit for sums paid as lump sum alimony award pending appeal.

In a previous appeal this court modified the original alimony judgment by reducing the lump sum award to $25,000.00 and ordering periodic rehabilitative alimony be paid by the husband for sixty months. Keller v. Keller, 348 So.2d 654 (Fla. 3d DCA 1977). Pending appeal by the husband, he was ordered by the trial judge to pay the sum of $1,300.00 per month as alimony until further order of the court. Pursuant to the court’s order the husband paid a total sum of $16,900.00.'

Following the issuance of this court’s mandate, the husband tendered the sum of $8,100.00 plus interest in the sum of $566.00 in full satisfaction of the lump sum portion of the award. The wife rejected the offer and moved the trial court to order the husband to comply with the final judgment as modified by this court requiring payment of $25,000.00 plus interest from July 15, 1976 in satisfaction of lump sum alimony portion of the final judgment. The trial court rejected the husband’s claim for credit for alimony paid pending appeal and ordered him to pay the entire sum of $25,000.00, plus interest. It is from that order that this appeal is taken.

The sole point presented for review is whether the trial court erred in denying appellant a credit for sums paid as alimony pending appeal, against the lump sum alimony award. We find error and reverse.

In Frischkorn v. Frischkorn, 223 So.2d 380 (Fla. 3d DCA 1969), we stated:

“We agree that such amounts should properly be deducted from the final lump sum award once such award is determined. The purpose of the lump sum alimony is to discharge the husband from any further obligation to the wife after the date final judgment is entered; thus, payments made after this date, but pursuant to an order requiring temporary alimony pending appeal, goes toward discharge of that obligation. See Morton v. Morton, Fla.App.1958, 104 So.2d 472.”

Since there was a lump sum award here, the trial court should have credited against such sum the payment made by appellant pending the prior appeal. His failure to do so was reversible error. Rankin v. Rankin, 275 So.2d 283 (Fla. 2d DCA 1973). Therefore, for the reasons stated and upon the authorities cited we must reverse the order appealed.

Reversed and remanded for further proceedings not inconsistent herewith.


author: BOYER, Judge.

text:
    ESCAMBIA MID-COUNTY DEVELOPMENT CORPORATION, Petitioner, v. STATE of Florida, DEPARTMENT OF COMMERCE, DIVISION OF EMPLOYMENT SECURITY, Respondent.
    No. HH-493.
    District Court of Appeal of Florida, First District.
    March 16, 1978.
    Rehearing Denied April 18, 1978.

      Donald H. Partington, of Clark, Parting-ton, Hart & Hart, Pensacola, for petitioner.
    Kenneth H. Hart, Jr. and Alex D. Little-field, Jr., Tallahassee, for respondent.
   BOYER, Judge.

Escambia Mid-County Development Corporation (Escambia) seeks review of a final order of the Department of Commerce, Division of Employment Security (Department) determining that Escambia is the successor to Rosemont Nursing and Convalescent Home, Inc. (Rosemont) and, as such, must assume the employment record of its predecessor by virtue of F.S. 443.08(3)(g)(l).

Escambia established a nursing home and leased it to Rosemont which began managing and operating the home in a building owned by Escambia. The management of Rosemont left a great deal to be desired. On May 16, 1975, as a result of numerous breaches and defaults, Escambia terminated its lease relationship with Rosemont and directed Rosemont to vacate the nursing home premises. Rosemont complied. Es-cambia then made application to the state and federal agencies to operate a nursing home and, with appropriate approval, began operation of the nursing home effective May 20, 1975. In the meantime arrangements were made so that it would not be necessary for the patients to be removed from the premises. When Escambia took over the operation it began using all of the fixed assets on the premises essential to the operation of the nursing home and employed most of the employees which had been employed by Rosemont. Without the fixed assets and the employees the patients of the home could not have been cared for. Escambia did, however, hire new administrators. In January of 1976, the Department notified Escambia that it had become liable as an employer as defined in F.S. 443.03(7)(d) and that it was assigned the unemployment tax rate of Rosemont in the amount of .0450 per cent rather than the standard rate. Escambia filed a protest whereupon a hearing was held by a special deputy. The special deputy recommended that the protest be denied, concluding that Escambia was the successor employer to Rosemont and was required to take the experience rating of Rosemont. Escambia filed exceptions to the report and the director of the Division of Employment Security entered an order adopting the report and recommendation of the special deputy, denying Escambia’s protest.

Although the facts of this case elicit sympathy we are only at liberty to apply the law.

F.S. 443.03(7) defines the term “employer”. Clearly Rosemont was an employer. Escambia concedes that it is an employer. We agree with Escambia that the last cited statute has no effect other than to describe it and Rosemont as employers. So far as this case is concerned and so far as Escam-bia and Rosemont are concerned F.S. 443.-03(7)(d) has no special significance.

F.S. 443.08 is a long complicated section entitled “contributions”. That section (F.S. 443.08) has six subsections. The scheme for the numbering of statutes in the official Florida Statutes, as explained in the preface in volume 1 thereof, provides that statute chapters are identified by a whole number appearing to the left of the decimal point, the whole numbers appearing at the right of the decimal point identifying sections of the statute. Thus in the designation “F.S. 443.08” the numbers to the left of the decimal point (443) denotes the chapter and the numbers to the right of the decimal point (08) denote the section. Subsections are identified by whole arabic numbers enclosed by parenthesis. Therefore, in the designation “F.S. 443.08(3)” the last arabic number enclosed in parenthesis designates the subsection. Paragraphs within a subsection are identified by lowercase letters enclosed by parenthesis; subparagraphs by whole arabic numbers followed by a period; and sub-subparagraphs by lowercase letters followed by a period. Accordingly, the words “For the purposes of this subsection” as found in F.S. 443.08(3)(g)l. means that the language following that phrase is applicable to the entire subsection, viz: 443.-08(3), which is entitled “Contribution Rates Based On Benefit Experience.” The last mentioned sub-paragraph provides as follows:

“For the purposes of this subsection, two or more employers who are parties to a transfer of business or the subject of a merger, consolidation, or other form of reorganization, effecting a change in legal identity or form, shall be deemed to be a single employer and shall be considered as one employer with a continuous employment record if the division finds that the successor employer continues to carry on the employing enterprises of the predecessor employer or employers.”

Escambia, after urging a more restricted application of the effect of the foregoing paragraph by virtue of the introductory words “for the purposes of this subsection” further urges its inapplicability for the reason that, Escambia claims, there was no “transfer of business” merger, consolidation nor other form of reorganization as between Rosemont and Escambia. We cannot so interpret the statute. While it is true that Escambia did not purchase the convalescent home business from Rosemont it “got” it. Clearly there was a “transfer” and equally clearly Escambia is the successor to Rosemont.

AFFIRMED.

McCORD, C. J., and McLANE, RALPH M., Associate Judge, concur.


author: BOYER, Judge. McCORD, Chief Judge,

text:
    John M. CANAKARIS, Appellant, v. Elaine P. CANAKARIS, Appellee.
    No. FF-265.
    District Court of Appeal of Florida, First District.
    March 17, 1978.
    Rehearing Denied April 17, 1978.
    Isham W. Adams, Daytona Beach, for appellant.
    William M. Barr of Raymond, Wilson, Conway, Barr & Burrows, Daytona Beach, for appellee.
   BOYER, Judge.

Appellant, a physician who has become wealthy since his marriage to appellee in 1943, seeks review of portions of a final judgment of dissolution of marriage.

The parties were married while the husband was attending medical school and the wife a first year college student. She quit college to be a wife. The only child of the marriage, a son, is “grown and gone”. The husband’s net worth is well into seven figures. By the final judgment here appealed the trial judge awarded to the wife: (1) a one-half interest in the real property and improvements constituting the Bunnell General Hospital (which was held as tenants by the entireties), the one-half interest having a value of approximately $200,-000.00; (2) a one-half interest in unimproved lots which were held as tenants by the entireties, the one-half interest having a value in excess of $25,000.00; (3) jewelry having a value in excess of $9,600.00; (4) one-half interest in a 129 shares of common stock in Flagship Bank, Inc., the one-half interest having a value at the time of the final judgment in excess of $500.00; (5) a savings account in which there was deposited $15,000.00; (6) a 1974 Cadillac; (7) the marital residence in toto (which was owned as tenants by the entireties) having a value in excess of $75,000.00, together with the household furniture and fixtures having a value in excess of $10,000.00; (8) lump sum alimony in the sum of $50,000.00 payable in installments of $10,000.00 over five consecutive years and (9) permanent periodic alimony in the sum of $500.00 per week. By the final judgment the husband was also required to pay the wife’s attorney’s fees the amount of which was to be determined at a hearing in the future and after a motion for rehearing the husband was required to pay the wife $500.00 per week alimony pending appeal.

The husband takes a scattergun approach by his first point which he phrases as follows:

“The trial court in entering the judgment appealed abused its discretion in awarding appellee the appellant’s interest in the marital residence property of the parties plus the sum of Fifty Thousand Dollars ($50,000.00) as lump sum alimony and Five Hundred Dollars ($500.00) per week as permanent or periodic alimony and retaining jurisdiction to make a further award on appellee’s behalf of her costs and attorney’s fees.”

His second point is a bit more specific, it being:

“The trial court abused its discretion in entering the order awarding appellee Five Hundred Dollars ($500.00) per week temporary alimony pending this appeal.”

In Jones v. Jones, 330 So.2d 536 (Fla.App. 1 1976) Judge Mills, speaking for this Court, said:

“The trial court has authority to order a husband to convey to the wife his undivided interest in property they own as tenants in common as lump sum alimony. Reid v. Reid, 68 So.2d 821 (Fla.1953). But lump sum alimony should be awarded only in those instances where some special equities require it, Yandell v. Yandell, 39 So.2d 554 (Fla.1949), and it is justified only where it serves a reasonable purpose, such as rehabilitation, or the award would be advantageous to both parties. Calligarich v. Calligarich, 256 So.2d 60 (Fla.App. 4th, 1971).” (330 So.2d at page 538)

Again, in Cann v. Gann, 334 So.2d 325 (Fla.App. 1 1976) this court said:

“Lump sum alimony, sometimes known as alimony in gross, is essentially payment of a definite sum and is in the nature of a final property settlement. Hence, an award of lump sum alimony creates a vested right which survives death (Morris v. Morris, Fla.App. 2nd 1973, 272 So.2d 202) and is not modifiable nor terminable upon the divorced wife’s remarriage (Horne v. Horne, Fla.App. 2nd 1974, 289 So.2d 39). Lump sum alimony may consist not only of money, but also or in lieu thereof, real or personal property, such as a marital home. (Vandervoort v. Vandervoort, Fla.App. 3rd 1974, 300 So.2d 694.) Regardless of what form it takes, ‘ * * * Lump sum alimony is justified only where it serves a reasonable purpose, such as rehabilitation, or where the marriage’s duration or the parties’ financial position would make such an award advantageous to both. The wife’s need and the husband’s ability are still the correct equation to follow. * * * ’ (Calligarich v. Calligarich, Fla.App. 4th 1971, 256 So.2d 60, 61).
“Although lump sum alimony is distinguished from periodic alimony, lump sum alimony may be paid in installments. (Morris v. Morris, supra) However, in order for it to be categorized as lump sum, it must be for a definite amount and must have some reasonable relationship to the estate of the person upon which it is. imposed. (Horne v. Horne, supra; Keller v. Keller, Fla.1974, 308 So.2d 106) A further element of lump sum alimony is that it be awarded only where special equities require it or make it advisable. (Jones v. Jones, Fla.App. 1st 1976, 330 So.2d 536). The requirement that lump sum alimony be based upon special equities must not be confused with an award in a dissolution of marriage action to a spouse who has acquired a special equity in property accumulated during the marriage. Such an award _is not alimony. (Eakin v. Eakin, Fla.1958, 99 So.2d 854) “Periodic alimony is an allowance payable at intermittent times (usually by the week or by the month) in a definite amount over a definite or indefinite period of time. An award of periodic alimony is appropriate according to the needs of the spouse requesting alimony and the corresponding ability of the other spouse to pay.
* * * * * *
“Permanent alimony, on the other hand, is an allowance for the support and maintenance of a spouse during his or her lifetime. Its purpose is to provide nourishment, sustenance and the necessities of life to a former spouse who has neither the resources nor ability to be self-sustaining. (Lefler v. Lefler, Fla.App. 4th 1972, 264 So.2d 112) However, ‘permanent’ does not necessarily mean ‘forever’. (Ruhnau v. Ruhnau, Fla.App. 1st 1974, 299 So.2d 61)” (334 So.2d at pages 328 and 329)

A review of the record reveals no special equity of the wife in the marital home. Accordingly, in keeping with the authorities above cited, we reverse that portion of the final judgment awarding to the wife the husband’s interest in the marital home owned prior to the dissolution of the marriage as tenants by the entireties.

As held and recited in numerous cases, among them being Cann v. Cann, supra, the proper formula to be followed in fixing alimony is the requesting party’s need and the responding party’s ability. The record before us does not sustain a need by the wife of $500.00 per week permanent, periodic alimony. We will, however, refrain from evaluating the record ourselves but instead reverse that award and remand to the trial court for the purpose of determining, based upon evidence, the needs of the wife. Additional evidence may be admitted for that purpose if the trial court and parties deem same necessary.

The temporary award of $500.00 per week alimony pending this appeal is in the nature of temporary rehabilitative alimony and, though the sum is generous, we affirm on that point.

Finally, we address the issue of attorney’s fees. As already recited, the wife has, in addition to her other estate which is of considerable value, an award of $50,-000.00 lump sum alimony which we decline to disturb on this appeal.

In Johnson v. Johnson, 346 So.2d 591 (Fla.App. 1 1977) we held:

“ * * * in order for attorney’s fees to be properly awarded there must first be a claim therefor in the pleadings (or the evidence must have been such as to justify an amendment of the pleadings to conform to the evidence in accordance with the Rules of Civil Procedure). * * Further though, in domestic relations matters, the party claiming attorney’s fees must, in order that they be properly awarded, allege and prove financial inability to pay same himself or herself and financial ability of the other party to pay same. There must, of course, also be proof (unless specifically waived by the parties) that the attorney’s services were reasonably necessary and that the amount claimed is reasonable. As in other similar matters, the parties by agreement may waive such requirements and submit the issues to the trial judge without pleading or proof, but that may be done only by explicit agreement.” (346 So.2d at page 593)

In Patterson v. Patterson, 348 So.2d 592 (Fla.App. 1 1977) we again held:

“We are also compelled to reverse on the issue of attorney’s fees. By statute, a party may be required to pay a reasonable amount for attorney’s fees in an enforcement proceeding of the type involved here. Section 61.16, Florida Statutes. To support an award of attorney’s fees, the prevailing party must establish that the fee is reasonable, that the requesting party is unable to pay the fee, and that the opposing party is able to pay. 10A Fla.Jur., ‘Dissolution of Marriage, etc.’, Sections 225, 229. See also Johnson v. Johnson, 346 So.2d 591 (Fla. 1st DCA 1977). It is not, of course, necessary that the requesting party, in order to establish inability to pay, be proven destitute. But, as the statute recites, the financial resources of both parties must be considered and when the requesting party has been shown to have the ability to pay for the services of his or her attorney then it is improper to require payment by the other party even though he or she may have the ability. * * * ” (348 So.2d at page 596).

(See also Dresser v. Dresser, 350 So.2d 1152 (Fla.App. 1 1977).

We reverse the award of attorney’s fees.

What we have said about attorney’s fees does not necessarily apply to costs. The trial judge has a broad discretion in the taxing of costs, which is usually taxed in favor of the prevailing party. In many proceedings formerly cognizable on the equity side of the court, but particularly in domestic relations matters, it is often difficult to identify the prevailing party. Accordingly, unless the record reveals in a particular case that the trial court has abused its discretion in the fixing and awarding of costs that decision will not be disturbed on appeal. We find no abuse of discretions in that regard sub judice.

As initially recited, the appellant approached this appeal with a scattergun. We are not quite sure whether it was intended that other issues be presented for our consideration. However, in order to attempt to finally conclude this review and to avoid petitions for rehearing and motions for clarification, we further recite that upon an examination of the assignments of error as brought forward in Points argued in the briefs (Fla.App. Rule 3.7f.) we find no further reversible error.

Appellee’s motion for attorney’s fees incident to this appeal is denied.

AFFIRMED IN PART AND REVERSED IN PART and remanded for further proceedings consistent herewith.

MELVIN, J., concurs.

McCORD, C. J., dissents.

McCORD, Chief Judge,

dissenting.

This was a 33-year marriage. The most recent figures shown by the record indicate that the husband’s net worth in 1974 was $3,672,372 and in 1975, it was $3,749,930. The record shows that the wife was a loyal and devoted wife who was most attentive to her husband’s needs and welfare. They married when the wife was 17 and the husband 21. He set out to become a medical doctor, and the wife quit college and abandoned a career for herself and helped to establish her husband in his career. She bore and raised their son and served her husband faithfully during the lean years of their struggle. When he opened his first office, she worked without pay as a receptionist until he could afford to hire employees. Later she worked without pay in the hospital which the husband established and performed various services, including even scrubbing the hospital floors. She also entertained doctors, patients, hospital employees and others to help him in his career. The record shows that she was in every way a faithful wife. On the other hand, the record shows that the husband engaged in adulterous relationships and separated from his wife to engage in such a relationship with another woman. This activity of the husband is a factor which properly should be given consideration in relation to the award of alimony to the wife. See McClelland v. McClelland, 318 So.2d 160 (Fla. 1 DCA 1975), and Pro v. Pro, 300 So.2d 288 (Fla. 4th DCA 1974). We are not privileged to substitute our judgment on findings of fact for that of the trial court who observed and heard the testimony of the witnesses. I find no error or abuse of discretion in the trial court’s award to the wife of the husband’s one-half interest in the marital home as lump sum alimony or in the award of permanent alimony. I would reverse as to the award of the wife’s attorney’s fee for the reason stated in the majority opinion, but I would in all other respects affirm.


text:
    Paul ARNOLD, Appellant, v. STATE of Florida, Appellee.
    No. GG-405.
    District Court of Appeal of Florida, First District.
    March 17, 1978.
    Michael J. Minerva, Public Defender, and Louis G. Carres, Asst. Public Defender, for appellant.
    Robert L. Shevin, Atty. Gen., and Wallace E. Allbritton, Asst. Atty. Gen., for ap-pellee.
   BOYER, Judge.

Appellant Arnold seeks review of his conviction and sentence for the offense of buying, receiving or concealing stolen property. The record reveals that at arraignment he was adjudged indigent, whereupon the court appointed an Assistant Public Defender to serve as counsel. A jury of his peers found him guilty as charged following which the trial judge adjudged him guilty and imposed a sentence of three years imprisonment and payment of court costs in the sum of $1,000.00. An order was simultaneously entered which provided that after serving six months in the county jail, Arnold would be placed on probation. The order provided, inter alia: “After you are released on probation you shall comply with the following conditions of probation: * * (9) pay $1,000.00 court costs after release from county jail.”

By his first point, appellant argues in his brief that “the trial court erred in denying appellant’s motion for judgment of acquittal made at the close of the state’s case because the prosecution failed to adduce sufficient evidence to prove a prima facie case that appellant was in knowing possession of stolen property.” Our review of the record reveals sufficient evidence to support the conviction. Appellant’s first point is therefore without merit.

By his second point, appellant urges that the court erred in assessing court costs against him for the reason that he had been declared indigent. F.S. 939.15 provides that when a defendant in any criminal case has been adjudged insolvent, the costs allowed by law shall be paid by the county. That statute has been construed to prohibit the assessment of court costs against a defendant who has been adjudged insolvent. (Smith v. State, 352 So.2d 1276 (Fla.App. 1st 1977); Cox v. State, 334 So.2d 568 (Fla.1976) and Mack v. State, 305 So.2d 264 (Fla. 3rd DCA 1976)) Accordingly, the imposition of costs as a part of the sentence was error and must be reversed.

However, the trial court did not err upon ordering the payment of court costs as a condition of probation. The granting of probation “rests within the broad discretion of the trial judge and is a matter of grace rather than right extended to the offender usually on the basis of a pre-sentence investigation which suggests that he is not likely to repeat his conduct and could be rehabilitated while at liberty under supervision. Statutory provisions which set out the procedures for extending probation privileges to those found guilty of violations of criminal laws are not mandatory on trial judges.” (Bernhardt v. State, 288 So.2d 490 (Fla.1974) and cases therein cited)

F.S. 948.01(4) clearly provides that the granting of probation is permissive only and is within the discretion of the trial judge. F.S. 948.03 authorizes the judge to determine the terms and conditions of probation, specifically providing: “(2) The enumeration of specific kinds of terms and conditions shall not prevent the court from adding thereto such other or others as it considers proper.” Further, in Gryca v. State, 315 So.2d 221 (Fla.App. 1, 1975) this Court, citing Fuller v. Oregon, 417 U.S. 40, 94 S.Ct. 2116, 40 L.Ed.2d 642 (1974), held valid a condition of a probation order requiring the defendant to reimburse the county $100.00 as partial costs of prosecution, saying: “the State of Florida, who has provided so much to this defendant, may through its probation order require her to repay society a small share of the costs that her conduct placed upon the State of Florida.” (315 So.2d at page 223)

The judgment and sentence are affirmed except for the assessment of costs as part of the sentence and this case is remanded with directions to delete that provision from the sentence. Such modification of the sentence may be made without pronouncement in open court and without the defendant being present.

IT IS SO ORDERED.

McCORD, C: J., and MELVIN J., concur.