author: FRANK D. UPCHURCH, Jr., Judge. SHARP, Judge,

text:
    In re the Marriage of Betty J. KERSHNER, formerly Betty J. Crocker, Appellant, v. Stanley G. CROCKER, Appellee.
    No. 80-992.
    District Court of Appeal of Florida, Fifth District.
    June 17, 1981.
    Michael R. Walsh, Orlando, for appellant.
    J. Russell Hornsby of the Law Offices of J. Russell Hornsby, Orlando, for appellee.
   FRANK D. UPCHURCH, Jr., Judge.

The appellant/wife questions the award of custody of the parties’ minor child to the husband in a judgment of dissolution of marriage. We AFFIRM.

Prior to trial, the parties stipulated that all matters in dispute had been settled except the issue of custody. As part of the stipulation, the marital home was transferred to the husband.

The court found that while both parents were fit, custody should be awarded to the husband. The trial judge’s finding was based on several factors including his belief that it was important to maintain continuity in the child’s home environment, to have the child remain in the same school and continue her friendships and to have the influence of her paternal grandmother. The trial judge was also concerned about the potentially negative influence of the maternal grandmother in whose house the wife was then living. Another factor influencing the court was the brother-sister relationship that existed between the child, Tresa, age five, and her father’s younger brother, age six, who had lived with them since her birth.

Appellant advances two arguments in support of her contention- that the trial court erred in failing to award her custody: 1) the “tender years presumption” and 2) that the trial judge improperly used the placement of the child as a tool to facilitate a reconciliation.

Section 61.13(2)(b), Florida Statutes (1979), provides that when considering all relevant factors in the determination of child custody and visitation, the father of the child shall be given the same consideration as the mother. In Anderson v. Anderson, 309 So.2d 1 (Fla.1975), the Florida Supreme Court announced that this statutory mandate of equal consideration is not inconsistent with the “tender years presumption.” Rather, it was still the law in Florida that “other essential factors being equal, the mother of the infant of tender years should receive prime consideration for custody.” Dinkel v. Dinkel, 322 So.2d 22, 24 (Fla.1975). See also Corvison v. Corvison, 362 So.2d 323 (Fla. 3d DCA 1978); Ross v. Ross, 321 So.2d 443 (Fla. 3d DCA 1975). In other words, where the equal consideration given to the father in determining child custody results in a finding that both parties are equally fit to have custody, children of tender years should be awarded to the mother. Klavans v. Klavans, 330 So.2d 811 (Fla. 3d DCA 1976), cert. dismissed, 353 So.2d 676 (Fla.1979).

The above cases do not enumerate the essential factors which a court should specifically consider. However, in 1975, the Legislature amended section 61.13 to include some of the criteria to be considered when determining the welfare and best interests of the child:

(3) For purposes of custody, the best interests of the child shall be determined by the court’s consideration and evaluation of all factors affecting the best welfare and interests of the child, including, but not limited to:
(a) The love, affection and other emotional ties existing between the parents and the child.
(b) The capacity and disposition of the parents to give the child love, affection, and guidance and to continue the educating of the child.
(c) The capacity and disposition of the parents to provide the child with food, clothing, medical care or other remedial care recognized and permitted under the laws of this state in lieu of medical care, and other material needs.
(d) The length of time the child has lived in a stable, satisfactory environment and the desirability of maintaining continuity.
(e) The permanence, as a family unit, of the existing or proposed custodial home.
(f) The moral fitness of the parents.
(g) The mental and physical health of the parents.
(h)The home, school, and community record of the child.
(i) The reasonable preference of the child, if the court deems the child to be of sufficient intelligence, understanding, and experience to express a preference.
(j) Any other factor considered by the court to be relevant to a particular child custody dispute. (Emphasis added.)

In this case, obviously the trial court found these factors to be unequal as between the parties. See Dykes v. Dykes, 395 So.2d 188 (Fla. 5th DCA 1981); Maran v. Maran, 384 So.2d 950. (Fla. 4th DCA 1980).

There are also other factors which place the trial judge in an infinitely superior role for the determination of custody. The appellate court is limited to the record while the trial judge has the opportunity to observe the child and the parents and the interplay between them. We suspect that when Solomon threatened to cleave a child in two to solve the problem of choosing between two women who claimed the child, he learned as much from their faces as he did from their testimony. Although these unrecorded factors are nebulous and impossible for a trial judge to articulate even if he is aware of their influence, they give him a unique advantage over a reviewing court. Therefore, we are most reluctant to overrule a custody decision except where an error is apparent and compelling. Such is not the case here.

The second argument advanced by appellant is that the judge awarded custody of the child to the husband to induce her to reconcile with her husband and preserve the marriage.

After the court announced its ruling on custody, there was a colloquy among the wife, her counsel and the court. During that discussion, the court expressed a hope that the wife and husband could get back together. A fair reading of these comments in context does not indicate that placement of the child with the father was determined upon the judge’s hope of reconciliation or that the placement was being used as a tool to facilitate a reconciliation. Rather, the comments simply appear to be a personal expression of hope without any legal significance.

Here, the trial judge was forced to make a choice between two parents, both of whom he concluded were fit. Had the parties been able to reconcile, not only would the burden of his decision be lifted from him, but the anguish that would surely flow to the child and the parties would have been stemmed. We believe that most trial judges in custody matters wish there were options other than selecting between the parents. While he may be confident of the correctness of his decision, a trial. judge would be most insensitive if he did not perceive the turmoil and pain a small child will experience who is unable to comprehend the division between its parents. He would be callous indeed if he did not understand and anticipate the terrible loss which the unselected parent faces, especially one who is convinced that justice has gone astray. An expression of hope for reconciliation by the trial judge may reveal compassion for those his decision will affect, but it certainly is not error.

AFFIRMED.

COWART, J., concurs.

SHARP, J., dissents with opinion.

SHARP, Judge,

dissenting.

I dissent in this case because application of the “tender years” doctrine should have resulted in awarding custody of Tresa, a five year old child, to her mother. Until the Florida Supreme Court changes this doctrine or rule, the lower courts are bound by it, and if it has any substance, the appellate courts have a duty to require that substantial factors be present in the record to justify an award of custody of a young child to its father rather than to its mother. The factors relied upon in the majority opinion and by the lower court (continuity of the home environment and the influence of the paternal grandmother) are primarily “make-weights”, and not sufficient to counter the substantial evidence which indicated that the mother was the better custodial parent. Failure to accept the duty to review custody awards makes custody judgments not appealable for practical purposes.

This child had been primarily cared for by her mother, Betty, since birth. The father, Stanley, worked long hours, and had never had the primary care of the child. He intended to continue his work schedule. The psychiatric reports in the record indicate that Betty is a mature and capable parent, and that her relationship with Tresa is a good one.

Since the parties separated, Tresa was living with Betty in the home of her maternal grandparents. Stanley refused to allow them to live in the marital home. While in her mother’s sole custody, Tresa showed no signs of anxiety or upset. Tresa’s nursery school and kindergarten teachers said Tresa is a happy, well adjusted child, before as well as after the separation of the parties. Clearly Tresa’s relationship with her mother was the most important factor in maintaining “continuity” in her environment — not the particular house or neighborhood. Continuity of schools and friends for a child of this age is normally of minimal importance or significance. Nor was it shown to be of any major importance to Tresa.

      . Anderson v. Anderson, 309 So.2d 1 (Fla.1975).

      . Hoffman v. Jones, 280 So.2d 431 (Fla.1973).

      .Tresa was in kindergarten and would be going to first grade next year, in any event.


source: Caselaw Access Project

author: ORFINGER, Judge.

license: Public Domain

text:
    William Amory UNDERHILL, James E. Pollard, Claude E. Varn, John E. Johns, Tom S. Gilchrist, Jr., Dr. William W. Schildecker, William G. Keebler, Carl Ward and Frank A. Ford, as and constituting the trustees under the Last Will and Testament of Bert Fish, deceased, known as “Bert Fish Testamentary Trust,” Appellants, v. Dave EDWARDS, as Tax Collector of Vol-usia County, Florida, and as the Director of the Department of Finance of the County of Volusia, Florida, and John W. Turner, as Property Appraiser of Volu-sia County, Florida, and as Director of the Department of Assessments of the County of Volusia, Florida, Appellees.
    No. 80-227.
    District Court of Appeal of Florida, Fifth District.
    June 17, 1981.
    John R. Godbee, Jr., of Coble, McKinnon, Rothert, Bohner, Barkin & Godbee, P.A., Daytona Beach, for appellants.
    William M. Barr of Raymond, Wilson, Conway, Barr, Burrows & Jester, Daytona Beach, for appellees.
   ORFINGER, Judge.

Appellants (trustees of a private, not-for-profit hospital,) question the correctness of the trial court’s conclusion that a portion of the otherwise exempt hospital building could be properly assessed and placed on the tax rolls. By cross appeal, the property appraiser questions the propriety of the trial court’s conclusion that a back assessment of the property in question was void because in the tax year to which the back-assessment related, the property in question was assessed as “exempt.” We affirm.

The findings and conclusions of the trial court are set out in the final judgment which followed a non-jury trial and which we recite in full:

In this action, plaintiffs contest the ad valorem assessment and taxation of the first floor of the new wing of Fish Memorial Hospital in DeLand, Florida, for the years 1976, 1977 and 1978. Plaintiffs are the trustee-owners of the hospital. For the three tax years in dispute, plaintiffs applied for exemption of the entire hospital property, including the new wing, on the basis of alleged charitable use. In 1976, the defendant Property Appraiser granted the exemption application for the entire property, including the first floor of the new wing. In 1977, however, the Property Appraiser denied the application with respect to the first floor of the new wing because of his determination that that portion of the property was not actually used for a charitable purpose. In addition, the Property Appraiser determined that that portion of the property had been exempted erroneously in 1976 and he therefore back-assessed it for 1976 taxes on the 1977 tax roll pursuant to section 193.092, Florida Statutes. The application for exemption was also denied in 1978. Plaintiffs paid the taxes for 1976, 1977 and 1978 under protest and in this action they seek a refund of the taxes paid. The action was tried before the Court sitting without a jury. The Court has carefully considered the testimony and other evidence adduced at the trial and the arguments of counsel. Being fully advised in the premises, the Court finds, determines and declares as follows:
1. The real property involved in this action is the first floor of the new wing of Fish Memorial Hospital in DeLand, Florida, more particularly described on the 1977 and 1978 ad valorem real property tax rolls of Volusia County as Parcel No. 7009 01 06 0010. Said parcel, consisting of the first floor of the new wing only, will be referred to sometimes in this judgment as the subject property.
2. As of the first days of January, 1977 and 1978, and at all other times during each of those years, the subject property was held and used for a private purpose and not for a charitable or other exempt purpose within the meaning of the Constitution and laws of the State of Florida. The subject property was held by the plaintiffs for the purpose of renting it to private medical doctors who, as lessees, used and occupied it as office space for the conduct of their private medical practices for professional compensation and profit. Such a use of real property is not a charitable use or purpose within the meaning of Article 7, Section 3(a), Florida Constitution of 1968, nor is it a charitable purpose as defined in Section 196.-012(6), Florida Statutes. The evidence demonstrates without dispute that the lessee-doctors do not conduct their medical practices on a charitable basis, but, instead, conduct their practices in an ordinary manner for professional compensation and profit.
3. The lessee physicians are members of the medical staff of plaintiffs’ hospital and, as such, they render incidental services to the hospital in the same manner as other medical staff members who conduct their medical practices in offices not located on or adjacent to the hospital premises. However, the benefits which the hospital derives from its arrangement of leasing the first floor of the new wing to private medical doctors does not qualify the subject property for exemption from ad valorem taxation. Such benefits are clearly incidental and they do not change the actual private use of the subject property. Under the Constitution and laws of Florida, only those portions of property which are used predominantly for charitable purposes are entitled to charitable tax exemption. Article 7, Section 3(a), Florida Constitution of 1968; Section 196.196(2), Florida Statutes. Those portions of real property in Florida which are used predominantly for private, nonexempt purposes are not entitled to exemption. Such property is subject to taxation. Section 196.001, Florida Statutes. It must bear its fair share of the tax burden along with other private properties and property interests which are subject to taxation. See Williams v. Jones, 326 So.2d 425 (Fla.1976); Volusia County v. Daytona Beach Racing and Recreational Facilities District, 341 So.2d 498 (Fla.1976).
4. The fact that the subject doctors’ offices are adjacent to a charitable hospital facility does not alter the result. The actual charitable use of the hospital qualifies the hospital for exemption; it does not qualify the subject doctors’ offices for exemption. That portion of the property must stand on its own use, not the use of the adjacent hospital facility. The evidence clearly demonstrates that the subject private doctors’ offices exist and function independently from the hospital and that the subject property is not a part of the hospital as such, although it happens to be a part of the building in which the hospital is located.
5. The evidence supports the Property Appraiser’s decision to assess and tax the entire first floor of the new wing, including the corridors and other common areas, as well as the doctors’ offices themselves. The corridors and other common areas in the first floor of the new wing exist and function predominantly to serve the private doctors’ offices, just as the common areas in the hospital exist predominantly to serve the hospital. The Court finds, upon consideration of the evidence, that the entire first floor of the new wing, including the common areas, is predominantly used for private, non-charitable purposes.
6. The Court finds that the subject property was subject to taxation and was not entitled to exemption in 1977 and 1978 and that the disputed assessments and taxes levied on the subject property for those years were correct and lawful in all respects.
7. The back-assessment for the year 1976 involved the circumstance of a difference in judgment by successive tax assessors, and is precluded by applicable Florida law. Korash v. Mills, 263 So.2d 579 (Fla. 1972); Markham v. Friedland, 245 So.2d 645 (Fla. 4th DCA 1971). The 1976 taxes were paid under protest by the plaintiffs and should be refunded.
8. The Court finds that the plaintiffs are not estopped to challenge the 1976 tax assessment on the basis that they failed to exhaust administrative remedies, and that this Court has jurisdiction of the issue of the 1976 tax payment. Lake Worth Towers, Inc. v. Gerstung, 262 So.2d 1 (Fla. 1972).
9. The plaintiffs seek interest on the refund of taxes paid since the date of May 31, 1978. The Court has concluded that such interest cannot be awarded in an action of this nature where no money judgment against the state or the taxing authority is involved. State ex rel. Four-Fifty-Two-Thirty Corp. v. Dickinson, 322 So.2d 525 (Fla. 1975); Mailman v. Green, 111 So.2d 267 (Fla. 1959); Hansen v. Port Everglades Steel Corporation, 155 So.2d 387 (Fla. 2d DCA 1963).
It is therefore ORDERED and ADJUDGED that final judgment is hereby entered in this action against the plaintiffs and in favor of the defendants for the tax years 1977 and 1978; as to those assessments and collections, plaintiffs take nothing by this action and the defendants go hence without day. It is further adjudged that the defendants herein shall refund to the plaintiffs the tax payment (without interest) for the year 1976 paid under protest by the plaintiffs ...

Appellants’ only issue on appeal is that they are entitled to an exemption of the first floor of the new wing of the hospital because that portion represents only a very small percentage of the otherwise exempt property and this incidental use of this small portion does not destroy the predominant charitable use of the property. The trial court completely and correctly addressed this problem. There was no attempt by the property appraiser to remove the exemption from the hospital itself, but only from that portion of the building used for private purposes. This is authorized under Article 7, section 3(a) of the Florida Constitution (1968) and by sections 196.192 and 196.196, Florida Statutes.

The trial court also correctly determined that the first floor of the new wing which had been assessed as “exempt” on the 1976 tax roll could not be back assessed, because the property had not “escaped taxation” for that year. It had not been missed, overlooked or forgotten. Okeelanta Sugar Refinery, Inc. v. Maxwell, Fla.App. 1966, 183 So.2d 567. Once the tax roll has been certified for a given tax year and the tax levied thereon is paid for a particular described property, that property cannot be taxed again for that particular year. Okeelanta; Markham v. Friedland, 245 So.2d 645 (Fla. 4th DCA 1971). In the 1976 tax year it was the “judgment” of the property appraiser that the entire hospital property was exempt (which included the questioned first floor) and the property was so assessed on the tax roll. In Korash v. Mills, 263 So.2d 579 (Fla. 1972), relied on by appellee here, the total improvement consisting of an oceanfront motel was omitted from the assessment by error. Thus, it was held that a back assessment under the subject statute was proper, because the improvements had been totally overlooked; they had in fact “escaped taxation.” The court emphasized that it was not the judgment of the property appraiser that was involved; if a change in valuation had been attempted, it would have been stricken down. After certification of the tax roll a change “reevaluating” the amount of the valuation will not be allowed. Korash, supra. The determination that a parcel of property is exempt is as much a part of the assessment process as is the determination of its taxable value, and the judgment of the assessor must be applied in reaching that conclusion. We hold, therefore, that a determination in 1977 that the property should not have been exempted in 1976 is a change in judgment and is prohibited under the cited cases.

This leaves the property appraiser’s contention that the trial court had no jurisdiction to consider the back assessment because appellants did not exhaust their administrative remedies or file their action within sixty days of the contested assessment as required by section 194.171(2), Florida Statutes (1977), citing Coe v. ITT Development Corporation, 362 So.2d 8 (Fla. 1978). The same statute [formerly numbered as section 192.21(2), Florida Statutes] was construed in Lake Worth Towers Inc. v. Gerstung, 262 So.2d 1 (Fla. 1972) wherein it was held that the statute would not bar a late challenge to an assessment charged to be unauthorized or void, “which may be enjoined or relieved against at any time.” Id. at 4. The court then defined a “void” assessment as one not authorized by law or where the property is not subject to the tax assessed, or where the tax roll is illegal due to some affirmative wrongdoing by the taxing official. A “voidable” assessment is defined as one which is made in good faith, but is irregular or unfair. We deem this assessment void because there was no statutory authority for the property appraiser to change his judgment after the year for which the tax roll had been certified. Thus the sixty day statute does not apply.

The judgment appealed from is AFFIRMED.

SHARP and COWART, JJ., concur.

      . Section 193.092, Florida Statutes (1977) provides:
      (1) When it shall appear that any ad valorem tax might have been lawfully assessed or collected upon any property in the state, but that such tax was not lawfully assessed or levied, and has not been collected for any year within a period of three years preceding the year in which it is ascertained that such tax has not been assessed or levied or collected, the officers authorized shall make the assessment of taxes upon such property in addition to the assessment of such property for the current year, and shall assess the same separately for such property as may have escaped taxation at and upon the basis evaluation applied to such property for the year or years in which it escaped taxation....


text:
    Robert HUFHAM, Appellant, v. STATE of Florida, Appellee.
    No. 80-489.
    District Court of Appeal of Florida, Fifth District.
    June 17, 1981.
    James B. Gibson, Public Defender, and Ronald K. Zimmet, Chief, Appellate Division, Asst. Public Defender, and Cynthia Karl-Stamm, Certified Legal Intern, Dayto-na Beach, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Edward M. Chew, Asst. Atty. Gen., Dayto-na Beach, for appellee.
   ORFINGER, Judge.

Appellant was convicted of sexual battery of a person over the age of eleven years by use of physical force not likely to cause serious personal injury. He contends on appeal that the evidence is insufficient to sustain his conviction and that a comment by the prosecutor in closing argument is reversible error. We affirm.

Appellant moved for a judgment of acquittal at the close of the State’s case, but did not renew the motion at the close of all the evidence or move for a new trial. Therefore, we determine only if the State presented sufficient evidence to establish a prima facie case. McGeorge v. State, 386 So.2d 29 (Fla. 5th DCA 1980). Resolving all conflicts and inferences in favor of the verdict, we find the evidence legally sufficient. Tibbs v. State, 397 So.2d 1120 (Fla.1981); McGeorge, at 30; Florida Rule of Criminal Procedure 3.380(b).

Appellant first contends that the State did not submit sufficient evidence to show force and lack of consent, ard relies on cases such as O’Bryan v. State, 324 So.2d 713 (Fla. 1st DCA 1976) and Johnson v. State, 118 So.2d 806 (Fla. 2d DCA 1960) for the proposition that a conviction for rape cannot be sustained in the absence of proof beyond a reasonable doubt that the offense was established by force and that it was against the will of the victim. These cases are of little assistance to us, however, because they were decided under an old statute no longer in effect at the time of the offense here.

On October 1,1974, section 794.011, Florida Statutes, went into effect, describing and proscribing the crime of sexual battery. Whereas the old statute did not divide the crime into degrees (except insofar as it pertained to children under the age of eleven years), the new statute does. For example, subsection (3) of the current statute describes sexual battery as a life felony where the offense is committed without the victim’s consent and where the offender uses or threatens to use a deadly weapon or uses actual physical force likely to cause serious personal injury.

In the instant case, appellant was charged under section 794.011(5), Florida Statutes (1979), which provides:

A person who commits sexual battery upon a person over the age of 11 years, without that person’s consent, and in the process thereof uses physical force and violence not likely to cause serious personal injury shall be guilty of a felony of the second degree....

Thus, the degree of “force” required to be proved under this subsection will be less than the force likely to cause serious injury, and how much “force” satisfies this requirement is essentially a question for the jury.

Appellant contends also that the evidence is insufficient to prove lack of consent by the victim. Under the old statute, if the exhibited or threatened force was not sufficient to put the woman “in fear of loss of life or other great danger,” evidence of resistance was required to demonstrate the act was by force and against her will. Bailey v. State, 76 Fla. 213, 79 So. 730 (Fla.1918); Hollis v. State, 27 Fla. 387, 9 So. 67 (1891); O’Bryan v. State, 324 So.2d 713 (Fla. 1st DCA 1976); Johnson v. State, 118 So.2d 806 (Fla. 2d DCA 1960). Thus, in the absence of strong resistance, the described acts did not sufficiently establish lack of consent. These cases no longer represent the legislative policy of the state.

Under the old statute, it was held that resistance of the victim (so as to demonstrate non-consent) was a relative term to be viewed under the circumstances of each case:

The amount of resistance required depends on the circumstances, including the relative strength of the parties, the age and condition of the female, the apparent uselessness of resistance, and the degree of force manifested. It is only necessary that the resistance of the female be such as to make non-consent and actual resistance real, under the circumstances prevailing.

Thomas v. State, 167 So.2d 309, 310 (Fla.1964).

Section 794.011(l)(h) of the new statute defines consent as the “intelligent, knowing and voluntary consent and shall not be construed to include coerced submission.” Thus we hold that here, too, “consent” is a relative term to be viewed under the circumstances of each case, but by the standards established by the new statute, rather than the old, and this, too, is essentially a question for the jury.

The evidence submitted by the State reflects that the victim, an 18 year old female, was entered in a disco dance contest at a local restaurant. She wore a costume and heavy makeup. While the contest was in progress, appellant propositioned her through her dance partner, but she refused. Appellant then suggested to her and her partner that he had some cocaine which they could share, so she went outside with appellant, expecting her partner and her brother to be close behind. She testified that the only reason she entered appellant’s car was that her brother and her dance partner had told her they would join her momentarily. She further testified that after she got in the car, appellant started it and drove into the woods on a dirt road behind the restaurant. Sensing something amiss, she lit a cigarette and planned to use it to effect her escape, but appellant grabbed it and threw it out of the window before she could use it against him. When appellant heard her brother and her dance partner calling to her from the parking lot, appellant became violent and pressed his hand over her mouth and nose.' She had trouble breathing while appellant kept his hand over her mouth for approximately a minute until the calling for her stopped. She attempted to struggle, but stopped because she was afraid to get hurt when appellant stated, “you better keep your .. . mouth shut or something will happen to you.” After appellant violently shook her, she got into the back seat of the car and took her clothes off because she was frightened. She testified that she resisted, but she was scared because he threatened her. After the episode ended, appellant drove her back to the restaurant and she immediately reported the crime to the manager of the restaurant and called the police. She testified that at that time she was frightened, crying and in pain. She had scratches on her arms and back. Finally, she testified that she obeyed his commands because she was afraid she would have been killed if she had resisted.

The victim’s dance partner testified that when the victim reentered the restaurant, her hair was “messed up” and she was in a hysterical state. He testified that she had her clothes on backwards and she said that she had been raped. He also testified that when she came back into the restaurant, he noticed that there was a handprint in her makeup over a portion of her lips and nose.

The evidence appears to be sufficient to make a prima facie case under the section of the statute charged in this case. Appellant says that the testimony of the victim is conflicting and is not credible on the issue of force and lack of consent, but he addresses this issue to the wrong tribunal. It was for the jury to determine the credibility of the witnesses and the victim, as well as of the defendant who testified here. Once competent, substantial evidence has been submitted on each element of the crime, it is for the jury to evaluate the evidence and the credibility of the witnesses. State v. Smith, 249 So.2d 16 (Fla.1971). We do not have the authority to reevaluate the weight of the evidence. Tibbs, supra.

Appellant contends that the prosecutor improperly commented on his right to remain silent during closing argument. We think the comment was improper, because reserving opening statement is a recognized privilege of defense counsel. Thus this comment may be compared to the remark as to defense technique and “how defense lawyers operate” criticized in Cochran v. State, 280 So.2d 42 (Fla. 1st DCA 1973).

It is the duty of a prosecuting attorney in a trial to refrain from making improper remarks or committing acts which would or might tend to affect the fairness and impartiality to which the accused is entitled.

Id. at 43. However, we deem the error not reviewable for several reasons. First, the ground of the objection was not specified below. To meet the objectives of any contemporaneous objection rule, an objection must be sufficiently specific both to apprise the trial judge of the putative error and to preserve the issue for intelligent review on appeal. Castor v. State, 365 So.2d 701, 703 (Fla.1978). Additionally, even the ground asserted here does not sustain a reversal. The comment was made in closing argument after defendant had testified, so it could not be a comment on his right to remain silent. Appellant made no further objections to the comment.

The judgment of conviction is AFFIRMED.

COBB and FRANK D. UPCHURCH, Jr., JJ., concur.

      . § 794.011(5), Fla.Stat. (1979).

      . Prior to October 1, 1974, the rape statute, § 794.01, provided:
      “(2) whoever ravishes or carnally knows a person of the age of eleven years or more, by force and against his or her will, . .. shall be guilty of a life felony....”

      . Section 794.011, Florida Statutes, describes various degrees of the crime from a capital felony to a felony of the second degree, depending on the age of the victim and the degree of force used by the offender.

      . Serious personal injury is defined in the statute as “great bodily harm or pain, permanent disability or permanent disfigurement.” § 794.-01 l(l)(e).

      . The legislative intent to divide “force” into various degrees and separate crimes is also demonstrated by provisions of the statute which require only the threat of force and the reasonable belief by the victim that the offender has the present ability to carry out the threat. § 794.011(4)(b). Cf. Carter v. State, 380 So.2d 541 (Fla. 5th DCA 1980).

      . (Prosecutor): ... Also there was something else. When we started this trial I got up here and told you in my opening statement everything the evidence would show. I told you in the most minute detail. That man when given his opportunity, he waived his opening statement, he could have told you at that time—
      (Defense Counsel): ... Your Honor, 1 am going to object—
      THE COURT: The objection is over-ruled.
      (Prosecutor): He could have told you every detail of what his story was going to be. During the cross-examination of the State’s witnesses did you have one hint of what the defendant’s testimony was going to be? Well, you know the reason why is because that man sat back there and waited until the evidence was all in and fabricated a story based solely on that evidence.

      . In Cochran, the error was found to be harmless in view of the evidence.


author: COBB, Judge.

text:
    Michael Leonard O’CONNELL, Appellant, v. STATE of Florida, Appellee.
    No. 80-916.
    District Court of Appeal of Florida, Fifth District.
    June 17, 1981.

      James B. Gibson, Public Defender, and Ronald K. Zimmett, Chief, Appellate Division, Asst. Public Defender, Daytona Beach, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and C. Michael Barnette, Asst. Atty. Gen., Day-tona Beach, for appellee.
   COBB, Judge.

His motion to dismiss having been denied, appellant O’Connell pled nolo contendere to a robbery charge. The trial court adjudicated O’Connell guilty, sentenced him to twenty years imprisonment, and imposed the costs of transporting him from a Michigan prison and back. O’Connell specifically reserved the right to appeal the trial court’s ruling on the motion to dismiss, and now timely appeals the judgment and sentence. We reverse.

While he was serving a sentence in Michigan, the State of Florida charged O’Connell with robbery. Subsequent to filing the information, the state attorney in Orange County sent the warden of the State Prison of Southern Michigan a request for temporary custody of O’Connell pursuant to the Interstate Agreement on Detainers, sections 941.45- 50, Florida Statutes (1979). As a result of the request for temporary custody, O’Connell was sent to Florida to face the robbery charge. Through no fault of his own, O’Connell was not tried within the time period set by the agreement. Pursuant to section 941.45(5)(e), Florida Statutes (1979), the dismissal provision of the agreement, O’Connell moved to dismiss the information.

O’Connell made no mention of the existence of a detainer against him either in his motion to dismiss or at the hearing on the motion. He did, however, allege and prove the existence of the state’s request for temporary custody, a prerequisite under the agreement to obtaining custody of a prisoner incarcerated in another state. On appeal, the state contends that in the absence of a detainer, the interstate agreement and its dismissal provisions do not apply, and that therefore O’Connell was required to specifically allege and prove the existence of a detainer. O’Connell argues that because the state utilized the “Request for Custody” provision of the statute in order to gain custody over him, an implication arose that a detainer had been lodged. Given the statutory scheme of the interstate agreement, we hold that the state’s request for custody combined with custody-in-fact sufficiently evidenced the existence of a detainer. By alleging and proving these facts in his motion to dismiss, O’Con-nell adequately alleged and proved the de-tainer’s existence and the trial court erred by not discharging the information.

The state correctly argues that in order for the interstate agreement and its speedy trial provisions to apply, a detainer must have been lodged against O’Connell with the Michigan authorities. Allen v. State, 390 So.2d 806 (Fla. 5th DCA 1980). See also United States v. Mauro, 436 U.S. 340, 98 S.Ct. 1834, 56 L.Ed.2d 329 (1978); United States v. Gravitt, 590 F.2d 123 (5th Cir. 1979). The state errs in this case, however, by questioning the existence of the detainer. The state obtained custody of O’Connell upon the authority of the agreement. Like the speedy-trial provisions invoked by O’Connell, the custody provisions relied upon by the state to gain custody of O’Connell depend upon the existence of a detainer. By requesting and obtaining custody of O’Connell pursuant to the terms of the agreement, the state clearly relied upon the existence of a detainer and is estopped to deny its existence.

Because the information against O’Con-nell should have been dismissed, the judgment and sentence, including the imposition of costs, are reversed, and the trial court is instructed to enter an order discharging the information against O’Connell with prejudice.

REVERSED and REMANDED with instructions.

DAUKSCH, C. J., and FRANK D. UP-CHURCH, Jr., J., concur.

      . § 941.45(4)(c), Fla.Stat. (1979).

      . Section 941.45(4)(a), Florida Statutes (1979), provides that the appropriate officer of the jurisdiction in which an untried information is pending shall be entitled to have a prisoner against whom he has lodged a detainer made available upon written request for temporary custody.


text:
    Gregory D. BURKETT, Appellant, v. STATE of Florida, Appellee.
    No. 80-1030.
    District Court of Appeal of Florida, Fifth District.
    June 17, 1981.
    James B. Gibson, Public Defender, and Brynn Newton, Asst. Public Defender, Day-tona Beach, for appellant.

      Jim Smith, Atty. Gen., Tallahassee, and James Dickson Crock, Asst. Atty. Gen., Daytona Beach, for appellee.
   COBB, Judge.

Appellant Burkett appeals from the jury verdict of guilty and from the sentence imposed after adjudication. His present appointed counsel (not his original appellate counsel) has filed an Anders brief. Burk-ett has filed his own supplemental brief.

A verdict is not appealable. Smith v. State, 395 So.2d 575 (Fla.5th DCA 1981).

Burkett argues on this appeal that the trial court erred in the sentencing by: (1) directly entering into the plea discussions; and (2) sentencing Burkett to a sentence following trial that was greater than the sentence the trial court had indicated it would impose on a plea bargain that Burk-ett rejected.

In federal court, a judge is prohibited from assuming the role of an active negotiator in the plea bargaining process. Fed.R.Crim.P. 11(e)(1); Blackmon v. Wainwright, 608 F.2d 183 (5th Cir. 1980). However, Florida’s rule relating to plea discussions and agreements does not prohibit court participation in plea discussions. Fla. R.Crim.P. 3.171.

Differential sentencing has been approved by the United States Supreme Court to the extent that a trial court may impose a lesser sentence upon a defendant who pleads guilty rather than going to trial. Brady v. United States, 397 U.S. 742, 90 S.Ct. 1463, 25 L.Ed.2d 747 (1970). However, it is improper for a trial court to threaten a defendant that it will give him the maximum that can be imposed if he goes to trial rather than pleading guilty. Williams v. State, 316 So.2d 267 (Fla.1975); Euziere v. United States, 249 F.2d 293 (10th Cir. 1957). There is nothing in the record of the case at hand that shows any such improper threat.

The appeal of the verdict is dismissed and the sentence is affirmed.

DISMISSED in part; AFFIRMED in part.

DAUKSCH, C.J., and FRANK D. UP-CHURCH, Jr., J., concur.

      . Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967).


author: SHARP, Judge.

text:
    Pasquale IANNUCCI, Appellant, v. STATE of Florida, Appellee.
    No. 80-706.
    District Court of Appeal of Florida, Fifth District.
    June 17, 1981.

      James B. Gibson, Public Defender, and Brynn Newton, Asst. Public Defender, Day-tona Beach, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Edward M. Chew, Asst. Atty. Gen., Dayto-na Beach, for appellee.
   SHARP, Judge.

Iannucci appeals his judgment and sentence for the offense of robbery. He argues that a comment by the trial judge prejudiced the jury and that the sentence improperly required hard labor and did not allow him credit for time previously served. We affirm the judgment but remand for resentencing.

Iannucci asserts that he was substantially prejudiced when the trial judge rebuked defense counsel during final arguments. However, defense counsel did not object to the judge’s comment at trial and therefore, unless the comment was so prejudicial as to constitute fundamental error, Iannucci waived his right to raise this issue on appeal. See White v. State, 348 So.2d 368 (Fla. 3d DCA 1977), reversed in part, 377 So.2d 1149 (Fla.1979), vacated in part, 379 So.2d 1018 (Fla. 3d DCA 1980). The judge’s comment does not appear to us as severely prejudicial, and in fact appellant’s counsel invited the judge’s comment by his own attempt to mislead the jury as to the kinds of crimes for which Iannucci had previously been convicted.

" The State concedes that the sentence erroneously included the surplus phrase “at hard labor” and did not specify the amount of credit for time Iannucci served in jail before sentencing. Section 921.161(1), Florida Statutes (1975), provides that such credit “must be for a specified period of time and shall be provided for in the sentence.” Because the record does not indicate the amount of credit, we remand this case for resentencing. Kreiser v. State, 380 So.2d 455 (Fla. 5th DCA 1980). The term “at hard labor” also should be stricken. Appellant need not be present for the sentence correction proceeding. Hensley v. State, 363 So.2d 352 (Fla. 2d DCA 1978).

AFFIRMED AND REMANDED FOR RESENTENCING.

ORFINGER and COWART, JJ., concur.

      . This is a belated appeal stemming from a jury trial on February 4, 1975. Appellant’s first notice of appeal, filed on-March 24, 1975, was dismissed on jurisdictional grounds. After the United States District Court for the Middle District of Florida granted appellant’s petition for writ of habeas corpus, this court accepted the notice of appeal filed June 18, 1980, as valid.

      . The following quotation from the trial transcript includes the alleged prejudicial rebuke:
      [DEFENSE COUNSEL]: [The prosecutor] made the comment, I believe, in his first argument, I think I want to bring out first, I mentioned it before, and that’s talking about these crimes. I want you all to remember and reflect back when we were having our voir dire, when we were discussing the matters with you, the picking of the jury. You recall [the prosecutor] asked the question, is there anybody here, most of you were present there. We had a panel of about eighteen people. And [the prosecutor] asked the question, has anybody been convicted of a crime? Two people raised their hand. He kind of looked at you in disbelief and said, I mean nobody that’s ever been stopped for a speeding ticket or a red light. I think we all felt kind of, well, yeah, of course, and many, many more hands went up.
      So we are talking about definition here. We are talking about definition.
      He is not on trial here for any crimes in the past. Most of us have been convicted of a crime before, a speeding ticket.
      THE COURT: [Counsel], are you implying to this jury that this man’s prior record is just traffic offenses?
      [DEFENSE COUNSEL]: No, your honor, I’m not. I’m referring to the voir dire examination that [the prosecutor] gave.
      THE COURT: That would be misleading the jury.
      [DEFENSE COUNSEL]: I’m not, but the point I’m trying to make is that that is a fact, that is a fact, that is not what we are trying here today.


author: FRANK D. UPCHURCH, Jr. Judge.

text:
    Willie L. CHRISTIAN, Appellant, v. STATE of Florida, Appellee.
    No. 80-1243.
    District Court of Appeal of Florida, Fifth District.
    June 17, 1981.
    James B. Gibson, Public Defender and Brynn Newton, Asst. Public Defender, Day-tona Beach, for appellant.
    No appearance for appellee.
   FRANK D. UPCHURCH, Jr. Judge.

At trial, the jury returned a verdict finding appellant guilty on Count I, sexual battery with a deadly weapon in violation of section 794.011(3) and on Count IV, kidnapping in violation of section 787.01(l)(a). The judgment and sentence form for Count I (sexual battery) states that it includes “Counts II & III” which is contrary to the verdict. The judgment and sentence form for kidnapping states that appellant was adjudged guilty of kidnapping in violation of section 794.011(5) which is the sexual battery provision. Therefore, we remand with directions to correct the judgment and sentences to conform to the jury’s verdict.

As corrected, the judgments and sentences are AFFIRMED.

DAUKSCH, C. J., and COBB, J., concur.


author: PER CURIAM.

text:
    Kathleen Ann JACOBS, Appellant, v. Edward Harry JACOBS, Appellee.
    No. VV-435.
    District Court of Appeal of Florida, First District.
    June 17, 1981.
    James M. Barton, II, of Levin, Warfield, Middlebrooks, Mabie & Magie, Pensacola, for appellant.

      O. E. Adams, Sr., Pensacola, for appellee.
   PER CURIAM.

Appellant contends that it was not proper for the trial court, in this dissolution proceeding, to award the husband the wife’s one-half interest in the parties’ marital home when the husband had no special equity in the home and the award did not constitute lump sum alimony. We agree and reverse.

It is well-established that in a marriage dissolution proceeding, absent any showing by either spouse as to why one should be awarded more than an equal proportion of real property held as tenants by the entireties, the record title speaks for itself. Ball v. Ball, 335 So.2d 5 (Fla.1976). In the present case neither party asserted a special equity in the marital home, nor would the record support such a finding as it is clear that the home was purchased with funds accumulated jointly by the parties during the marriage. The award here cannot be considered lump sum alimony necessary to insure equitable distribution of the property acquired during the marriage, held to be within the trial court’s discretion in Robinson v. Robinson, 1980 FLW 597 (Fla.1980), because there was no request for alimony. Thus, it was error for the trial court to direct the wife to convey her interest in the marital home to the husband.

We recognize that final judgments in dissolution cases encompass awards which are interdependent, therefore we reverse and remand for reconsideration of the final judgment in light of this opinion.

Reversed and remanded.

SMITH, LARRY G., J., and LILES, WOODIE A. (Retired), and PEARSON, TILLMAN (Retired), Associate Judges, concur.


author: SHIVERS, Judge.

text:
    Anna HOLDEN and Samuel Washington, Appellants, v. FLORIDA DEPARTMENT OF CORRECTIONS, Appellee.
    No. YY-95.
    District Court of Appeal of Florida, First District.
    June 17, 1981.
    Diana B. McPherson, of Three Rivers Legal Services, Inc., Gainesville, for appellant Anna Holden.
    Richard A. Belz, of Florida Institutional Legal Services, Inc., Gainesville, for appellant Samuel Washington.

      Jim Smith, Atty. Gen., Gerald B. Curing-ton, Asst. Atty. Gen., for appellee.
   SHIVERS, Judge.

This is an appeal from a final order of the Department of Corrections denying appellants permission to be married. We affirm in part, reverse in part, and sustain the order.

Appellants, Anna Holden, and prison inmate Samuel Washington, sought permission to be married from the Department of Corrections. Permission to marry was denied and Holden requested a Section 120.-57(1), Florida Statutes (1979), formal administrative hearing. After obtaining a hearing, Washington was granted party status as an intervenor.

At the hearing, the Department agreed that it was not relying upon its internal directive regulating inmate marriages but was instead relying upon its broad statutory responsibility for prison security and rehabilitation of prison inmates in order to determine, on a case by case basis, whether an inmate should be permitted to marry. On behalf of the Department, three expert witnesses testified that appellants’ proposed marriage would have an adverse effect upon both prison security and Washington’s rehabilitation interests. Appellant Holden testified that the proposed marriage would be psychologically beneficial to Washington. The Hearing Officer found that prospects for Washington’s rehabilitation would neither be enhanced nor diminished by the proposed marriage and that the marriage would not adversely affect prison security. Although the Hearing Officer recommended that appellants be permitted to marry, the Department entered a final order denying appellants permission to marry on the grounds that the proposed marriage would adversely affect both prison security and Washington’s rehabilitation interests and because Section 944.292, Florida Statutes (1979), automatically suspended Washington’s right to marry.

Although we conclude there is sufficient evidence to support the Department’s determination that the proposed marriage would adversely affect prison security and Washington’s rehabilitation interests, Section 944.292 does not automatically suspend the right of convicted felons to marry. Department of Corrections v. Roseman, 390 So.2d 394 (Fla. 1st DCA 1980). Section 944.292 provides:

Upon conviction of a felony as defined in Section 10, Article X of the State Constitution, the civil rights of the person convicted shall be suspended in Florida until such rights are restored by a full pardon, conditional pardon, or restoration of civil rights granted pursuant to Section 8, Article IV of the State Constitution.

Under Article IV, Section 8(a), Florida Constitution (1968), only the Governor, with the approval of three members of the Cabinet, may grant full or conditional pardons or restore civil rights to convicted felons. In Roseman, supra, we held that “prison inmates have no fundamental right to marry and that noninmates have no fundamental right to marry inmates while they are yet in prison.” We went on to hold that the Department of Corrections has statutory authority to promulgate rules on the subject of marriages by prison inmates and that those rules were constitutionally valid although they are not applicable to the present appeal. Consequently, since Section 944.292 expressly limits the mechanism for restoration of civil rights automatically suspended by its operation to that provided in Article IV, Section 8, of the Florida Constitution and the Department of Corrections has authority to regulate inmate marriages, it naturally flows that the right to marry cannot be considered automatically suspended under the Statute. Therefore, we reverse the final order to the extent that it holds that Section 944.292 automatically suspends the right of convicted felons to marry noninmates.

However, there is competent, substantial evidence to sustain the order and the Department’s substituted findings of fact as to the adverse effect the proposed marriage would have on prison security and Washington’s rehabilitation interests.

In determining whether substantial evidence supports the agency’s substituted findings of fact, a reviewing court will naturally accord greater probative force to the hearing officer’s contrary findings when the question is simply the weight or credibility of testimony by witnesses, or when the factual issues are otherwise susceptible of ordinary methods of proof, or when concerning those facts the agency may not rightfully claim special insight. ... At the other end of the scale, where the ultimate facts are increasingly matters of opinion and opinions are increasingly infused by policy considerations for which the agency has special responsibility, a reviewing court will give correspondingly less weight to the hearing officer’s findings in determining the substantiality of evidence supporting the agency’s substituted findings.
McDonald v. Department of Banking and Finance, 346 So.2d 569, 579 (Fla. 1st DCA 1977).

Here, the substituted findings of fact did not involve the weight or credibility of testimony, but were concerned with appellant’s rehabilitation interests and overall prison security which are clearly areas involving determinations of policy within the department’s exercise of delegated discretion. Three expert witnesses testified for the Department, and all essentially concluded that Washington’s rehabilitation interests and prison security would be adversely affected by the proposed marriage. On the other side, only appellant Holden testified as to the benefits of the proposed marriage, opining that Washington’s attitude would change if the parties were permitted to marry. Consequently, in light of the Department’s special expertise and delegated discretion in carrying out its duties regarding rehabilitation and prison security, coupled with the lack of evidence that the proposed marriage would not adversely affect Washington’s rehabilitation and prison security, there is competent, substantial evidence to justify the denial of appellants’ request to be married.

Accordingly, to the extent that the appealed order denies appellants permission to marry on the grounds that the proposed marriage would adversely affect prison security and appellant Washington’s rehabilitation interests, it is affirmed. Otherwise, to the extent the order finds appellant Washington’s right to marry is automatically suspended under Section 944.292, it is reversed.

WENTWORTH, J., and WOODIE A. LILES (Ret.), Associate Judge, concur.


author: THOMPSON, Judge.

text:
    Sara Ann WYNN, Appellant, v. AETNA LIFE INSURANCE COMPANY and Marilyn Ann Wynn, Appellees.
    No. ZZ-349.
    District Court of Appeal of Florida, First District.
    June 17, 1981.

      Norton Bond, Pensacola, for appellant.
    John F. Windham of Beggs & Lane, Pensacola for appellee Aetna Life Insurance Co.
    Artice L. McGraw of Cetti & McGraw, Pensacola, for appellee Marilyn Ann Wynn.
   THOMPSON, Judge.

On this appeal from a non-final order, the appellant argues that the trial court erred by denying her motion to dismiss and quash service because the court lacked jurisdiction over the appellant. We agree and reverse.

On July 28, 1979, Garland D. Wynn died in Florida. Earlier, the appellee Aetna Life Insurance Company (“Aetna”) had issued a $36,000.00 insurance policy, thereby insuring the life of Mr. Wynn. The beneficiary of that policy was the appellant (“Sara”), who was married to Mr. Wynn at the time of his death. Sara demanded full payment of the insurance policy. Simultaneously, however, Mr. Wynn’s ex-spouse, the appel-lee Marilyn Ann Wynn (“Marilyn”), acting as parent and next friend of two minors, claimed that those minors (who were Mr. Wynn’s children) were entitled to the proceeds of the insurance policy, pursuant to a Tennessee divorce decree. Additionally, Marilyn claimed that she was entitled to the proceeds of the policy. Based on the foregoing, Aetna filed an interpleader action in Florida against Sara and Marilyn, alleging in part that all the parties herein were Florida residents.

Aetna had the Sheriff of Fayette County, Tennessee serve a summons (along with the interpleader complaint) upon Sara at her home in Tennessee. Sara, through her Florida attorney, filed a motion to dismiss and quash service, contending in part that the Florida court had no jurisdiction over her person. She attached an affidavit to her motion, attesting that she, as well as Marilyn and the two minors, were all residents of Tennessee. Sara also attested that she had no ties with or property in the State of Florida, and that while she moved to Florida in September 1978 to accompany her late husband, she returned to Tennessee following his death in July 1979.

Sara validly contends that she was erroneously served in Tennessee pursuant to § 48.194, Fla.Stat. (1979). The use of this statute requires that Aetna must have alleged a valid cause of action for the exercise of long arm jurisdiction pursuant to § 48.193, Fla.Stat. (1979). See § 48.193(2) and (3), Fla.Stat.; Gaskill v. May Bros., Inc., 372 So.2d 98, 99 (Fla. 2d DCA 1979); P.S.R. Assoc. v. Artcraft-Health, 364 So.2d 855, 857 (Fla. 2d DCA 1978). The failure to adequately allege a basis for long arm jurisdiction under § 48.193, Fla.Stat., voids any service of process made pursuant to § 48.-194, Fla.Stat., with the result there would be no in personam jurisdiction over Sara. See Gaskill, 372 So.2d at 99.

In order to plead a valid cause of action for the exercise of long arm jurisdiction, Aetna must first allege sufficient facts to fall within the actual language of § 48.193, Fla.Stat. See Electro Eng. Products Co. v. Lewis, 352 So.2d 862, 864 (Fla.1977). After carefully reviewing Aetna’s Complaint for Interpleader and Declaratory Relief, we have determined that Aetna has totally failed to plead any facts establishing the basis for long arm jurisdiction over Sara. Given this fact alone, Sara’s motion should have been granted, even without any supporting affidavits. See Guritz v. American Motivate, Inc., 386 So.2d 60, 62 (Fla. 2d DCA 1980). Of course, Sara’s affidavits strengthen the basis for her motion, and Aetna completely failed to adequately respond to that motion.

Based on the preceding, the trial court’s Order is reversed, and this cause is remanded with instructions to dismiss this action against the appellant.

SHAW and WENTWORTH, JJ., concur.

       Insofar as service of process was used as a means of effecting jurisdiction over Sara, the trial court’s denial of Sara’s motion to quash service may be reviewed on this appeal from a non-final order. Fla.R.App.P. 9.130(a)(3)(C)(i) allows for appellate review of a non-final order which determines “jurisdiction of the person,” and as noted in American Health Ass’n., Inc. v. Helprin, 357 So.2d 204, 205 (Fla. 4th DCA 1978), “jurisdiction over the person, for example, refers to service of process.. . . ”


author: HOBSON, Acting Chief Judge.

text:
    David L. TINGLER, Appellant, v. CITY OF TAMPA, a municipal corporation, Appellee.
    No. 80-1253.
    District Court of Appeal of Florida, Second District.
    June 17, 1981.
    W. Eric Venable of W. Eric Venable, P.A., Tampa, for appellant.
    Joseph G. Spicola, Jr., City Atty., and James A. Sheehan, Asst. City Atty., Tampa, for appellee.
   HOBSON, Acting Chief Judge.

Appellant Tingler, a former police officer, appeals the trial court’s order denying him relief on his complaint seeking to require the City of Tampa to accept his application for a line-of-duty disability pension and pay him line-of-duty disability benefits. We reverse.

Appellant was employed by the City of Tampa Police Department in 1971 and consistently received good to above average job evaluations. Shortly after being employed, he entered into a pension contract which provided as follows:

Any member who in the service has received or shall receive within the City any injuries, disease, or disability which injury, disease, or disability now permanently incapacitates him physically or mentally from regular and continuous duty as a firefighter or police officer, then he shall receive in equal monthly installments an amount equal to 65% of monthly salary in effect at date of disability retirement

On November 14, 1978, appellant applied for a line-of-duty disability pension which was denied by the Pension Board. He was terminated November 26, 1978, because of incompetence, in that he was “inefficient in the conduct of his duties due to a non-correctable mental health problem.” Appellant then brought action to enfi rce his pension contract. The trial court’s order denying appellant relief provided in pertinent part as follows:

1. The plaintiff, DAVID TINGLER, did not suffer from an injury or disease while in the service as defined in section 7(b) of the City of Tampa Firefighters and Police Officers Pension Contract.
2. Whatever disability the plaintiff presently suffers from is due to a pre-ex-isting condition.
3. The stress of his job as a Police Officer did not cause the plaintiff’s disability, it revealed it.
It is therefore, ORDERED AND ADJUDGED as follows:
The Plaintiff did not suffer an injury, disease or disability while in the service of the City of Tampa which now permanently incapacitates him physically or mentally from regular or continuous duty as a firefighter or police officer.

The medical evidence upon which the trial court made its decision was as follows:

In 1977, appellant began to complain of mild headaches towards the end of his work shift. His condition deteriorated during late 1977 and 1978 as the headaches became more severe and began earlier in the work day. He began to have muscle cramps and rectal bleeding. On August 26,1978, appellant was called to investigate a domestic quarrel. The situation became critical when an adult male at the scene pulled a knife. Appellant drew his gun in an unsteady manner and allowed a child to walk past him into the room with the armed man. The man grabbed the child and held a knife to his throat. Appellant, with his gun raised, began to sweat, his hands shook and he stated that he thought he was going to pass out. Finally, he allowed a woman to walk up and take the knife away from the man. In attempting to subdue the man, appellant stated that he was just “hanging on to the man” and not aiding his partner as he knew he should have done. Appellant stated that he was frightened of the unarmed man who was much smaller than himself.

After this incident, appellant’s condition rapidly declined and, in addition to the prior symptoms, he began to avoid calls on his radio and would hide while on duty.

Prior to the August incident, appellant’s wife had been a patient of Dr. Mundorff, a psychologist. In the course of his wife’s treatment, appellant had complained to Dr. Mundorff about his headaches and muscle cramps. Dr. Mundorff had suggested that he go to the Veteran’s Administration Hospital for a physical examination. Appellant had taken this advice and arranged for tests to be conducted at the hospital on August 30, some two days after the domestic incident.

Dr. Mundorff testified at trial that in September, 1978, appellant appeared at Dr. Mundorff’s home, visibly shaken and in substantial distress. Appellant advised the doctor that his headaches had become more severe, he was unable to sleep, and he was having severe cramps in his legs and upper shoulders. Dr. Mundorff stated that he examined appellant’s neck, back and shoulders, and found them “like steel.” He advised appellant to have more tests performed at the Veteran’s Administration Hospital to rule out any possible physical causes for his problems. Appellant was extensively tested at the hospital and returned to Dr. Mundorff who referred him to Dr. Muniz, a psychiatrist at the Veteran’s Administration Hospital.

Dr. Muniz testified that he first saw appellant in October, 1978. He diagnosed the problem as psychophysiological musculo-skeletal disorder and passive aggressive personality. Dr. Muniz concluded that appellant’s job as a police officer was an important factor in his condition, particularly problems with his supervisors, resulting from appellant’s union activities.

Shortly thereafter appellant terminated his association with Dr. Muniz and returned to Dr. Mundorff’s care. Dr. Mundorff advised appellant that he would have to take some time off work. Appellant took sick leave on November 1, 1978. His condition did not dramatically improve and Dr. Mun-dorff then advised him to takf more time off. Appellant informed the doctor that he had been told to return to work or he would be fired. Dr. Mundorff advised him that he could not return to work.

Dr. Mundorff stated at trial that, in his opinion, appellant was suffering from a psychological reaction of the musculoskele-tal system. He did not believe appellant was capable of returning to work and stated that appellant was disabled from performing his duties as a police officer. Dr. Mundorff explained that appellant’s anxiety had been building up over a period of time, probably a year and a half. The cause was attributed to the day-to-day stress appellant encountered as a police officer.

Dr. Afield, in a letter addressed to the police department in November, 1978, stated that appellant was no longer capable of carrying out his duties as an officer “due to the pressures of his job and the long term anxious condition that the job has intrinsically fostered.” Approximately one year later Dr. Afield submitted another letter, stating in part, “I do not see this man as being disabled'.” By deposition, Dr. Afield denied having read the first letter before signing it. He stated that, based upon a review of Dr. Mundorff’s notes and two office visits with appellant, he did not believe that appellant was permanently disabled. Nevertheless, Dr. Afield said that he would defer to Dr. Mundorff’s opinion concerning appellant’s mental state during the period of time Dr. Mundorff was treating appellant.

In March, 1979, appellant was referred to Dr. Joffee, a psychiatrist, for evaluation. Dr. Joffee stated in deposition that appellant’s stress problems were directly related to his duties as a police officer. She stated that she had interviewed appellant on two occasions and had determined that he had a pre-existing condition which was aggravated by the domestic incident in August and which rendered him no longer functional as a police officer.

In March 1980, appellant was examined by Dr. Sprehe, a psychiatrist. Dr. Sprehe stated by deposition that appellant’s chronic anxiety reaction was, at least partly, a result of the domestic incident in August and that appellant suffered from an underlying psychological weakness. The domestic incident was described as the “precipitating event” which caused appellant’s rapid decline.

Dr. Forman, a psychiatrist, interviewed appellant in November, 1979. He stated in deposition and in direct testimony at trial that he found it difficult to relate appellant’s problem to any specific job problem. He felt that there were outside factors which caused more stress than appellant’s job. Dr. Forman agreed that appellant had a predisposition to this type of psychiatric problem, but thought that appellant was not permanently disabled. He further stated that he did not believe that appellant was capable of performing the duties of a police officer from a psychiatric standpoint.

Each medical expert stated that there were several other stress related factors which might have contributed to the severity of appellant’s psychiatric problem. Only Dr. Forman felt that the outside stress factors were more responsible than the job stress factors. Dr. Mundorff was the only expert who stated that he had treated appellant over an extended period of time. The other doctors had interviewed appellant over short periods of time.

DISCUSSION

We construe the trial court’s finding in paragraphs (2) and (3) of the final order to mean that appellant’s disability is due to a pre-existing condition which was aggravated by the stress of his job as a police officer. An extensive review of the record on appeal convinces us that the trial court had sufficient evidence before it to make this finding. We disagree, however, with the final holding that appellant did not suffer from a disability “while in the service.” Every medical expert agreed that appellant could not return to his duties as a police officer because of his psychological problems. The experts disagreed on the impact which job stress had on appellant’s condition. Some of the experts were of the opinion that job stress alone wa ¡ the aggravating circumstance while others felt that job stress in conjunction with other factors led to the disability. One doctor testified that, in his opinion, appellant was not disabled, but agreed that appellant could not, from a psychiatric viewpoint, return to his job as a police officer.

We note the similarity between the facts of the instant case and Division of Retirement v. Allen, 395 So.2d 1192 (Fla. 1st DCA 1981). In that case, Clarence Allen, a correctional officer at Florida State Prison, suffered a stroke and retired due to his inability to perform his employment duties. The Division of Retirement found him to be totally and permanently disabled and granted him regular disability benefits, but denied him line-of-duty benefits. Allen appealed to the Retirement Commission and, after hearing, the Commission found him to be “totally and permanently disabled as a result of the mental and physical effects of the stroke.” The Commission concluded that the stroke was caused by stress from Allen’s job and ordered that line-of-duty retirement benefits be granted to him.

On appeal, the First District Court noted that Allen’s treating psychologist had testified that Allen’s mental disability was directly related and caused by the stressful circumstances under which he was working. Another doctor stated that Allen’s illness, considering his personality, was a reaction to job stress. The Division of Retirement argued that the Commission was required to apply the “arising out of” test developed under worker’s compensation law. The appellate court noted that Allen’s benefits were conferred under section 121.021(13), Florida Statutes, which defined disability in the line of duty as an “injury or illness arising out of or in the actual performance of duty required by a member’s employment during his regularly scheduled working hours or irregular hours as required by the employer.” The court held the worker’s compensation cases inapplicable because, “under Chapter 440, compensation is payable only for an ‘injury’ arising in a certain way while section 121.021(13) is broader and defines disability in the line of duty as an ‘injury or illness’ arising out of employment.”

In the instant case, the provision of the pension contract applies to “Any member who in the service has received ... any .. . disability which ... now permanently incapacitates him physically or mentally from regular and continuous duty .... ” The subject provision does not exclude disabilities which arise from the aggravation of a pre-existing condition. Further, we agree with the First District Court that this type of provision is broader than the “arising out of” language in the Worker’s Compensation Act. Thus, where the testimony before the trial court showed that appellant cannot return to his job as a police officer, we hold that appellant has shown a permanent disability. When that disability is “revealed” by the stress of appellant’s job, notwithstanding the pre-existing condition, we hold that it was received “in the service” and entitles appellant to disability benefits.

REVERSED.

RYDER and DANAHY, JJ., concur.

      . The medical experts’ depositions were initially taken in preparation for appellant’s workmen’s compensation claim. For that reason, the various doctors placed greater emphasis on the impact of the domestic incident in August 1978 than was necessary for the instant claim. It is not crucial to the resolution of this case to determine whether one specific incident precipitated appellant’s disability. We review the medical evidence with an eye toward the impact of general job stress on appellant’s disability.


author: CAMPBELL, Judge.

text:
    William S. JENKINS and Wilhelmina M. Jenkins, husband and wife, Appellants, v. Edward V. FRAZIER and H. H. Pate Excavating, Inc., Appellees.
    No. 80-1745.
    District Court of Appeal of Florida, Second District.
    June 19, 1981.
    David B. McEwen of McEwen & Gordon, P.A., Tampa, for appellants.
    Charles P. Schropp and David R. Tyrrell of Shackleford, Farrior, Stallings & Evans, P.A., Tampa, for appellees.
   CAMPBELL, Judge.

Appellants seek reversal of the trial court’s order granting summary judgment dismissing their cause of action based on appellees’ affirmative defense that the cause of action was barred by the applicable statute of limitations.

Appellants filed their original complaint against appellees within the period permitted by the statute of limitations. After the court permitted appellants’ original counsel to withdraw, it allowed substitution of new counsel and granted a motion to amend the complaint. The amended complaint was filed after the period of time prescribed by the statute of limitations.

The question before us is whether the amended complaint states a claim for relief arising out of the conduct, transaction or occurrence set forth or attempted to be set forth in the original complaint so as to relate back to the date of the original complaint as provided in Florida Rule of Civil Procedure 1.190(c). We hold that it does and reverse the trial court.

Appellants’ original complaint alleged their ownership of real property on which they operated a catfish farm. It further alleged that, by pumping ground water from their adjacent property and by soil excavation work on their property, appel-lees had caused the water level in the ponds on appellants’ property to be lowered so as to endanger appellants’ catfish farm operation. It also alleged that appellees had continued their conduct despite admonitions from the appellants.

The amended complaint appears to us simply to allege the same course of conduct by appellees, and the resulting effect on appellants’ property, in more detail than was contained in the original complaint. The only significant allegation that is included in the amended complaint that was not specifically alleged in the original complaint is that appellees, in excavating on their property, located a spring that was disturbed by the excavation so as to cause water from appellants’ property to be diverted to appellees’ property. The trial court held that this was a new attempt by appellants to state a cause of action relating to invasion of subterranean water rights under the authority of Labruzzo v. Atlantic Dredging & Construction Co., 54 So.2d 673 (Fla.1951). We find that even so, it was not such a new issue or cause of action that would cause the amended complaint not to relate back to the date of the original complaint. Appellants’ original complaint, read in a light most favorable to appellees’ position, was at least an attempt to set forth a Labruzzo type cause of action as would be permitted by Florida Rule of Civil Procedure 1.190(c). See Handley v. Anclote Manor Foundation, 253 So.2d 501 (Fla. 2d DCA 1971), cert. den. 262 So.2d 445 (Fla.1972); Brown v. Wood, 202 So.2d 125 (Fla. 2d DCA 1967); Keel v. Brown, 162 So.2d 321 (Fla. 2d DCA 1964).

Accordingly, we reverse and remand for treatment consistent herewith.

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


author: SCHEB, Chief Judge.

text:
    FLORIDA FEDERAL SAVINGS & LOAN ASSOCIATION, Appellant, v. E. Snow MARTIN, E. Snow Martin, Jr., and Michael D. Martin, individually and Martin & Martin, a partnership, Appellees.
    No. 80-2317.
    District Court of Appeal of Florida, Second District.
    June 19, 1981.

      Michael J. Keane of Greene, Mann, Rowe, Stanton, Mastry &■ Burton, St. Petersburg, for appellant.
    Dennis P. Johnson of Law Office of Knowlton H. Shelnut, Jr., Lakeland, for appellees.
   SCHEB, Chief Judge.

Michael D. Martin sued Florida Federal Savings & Loan Association alleging that it breached its deposit agreement with him by charging his account on the basis of his secretary’s forgeries. Florida Federal defended on grounds that Martin had authorized his secretary to act as his agent, that his negligence contributed to the forgeries, and that his failure to inspect his monthly statements and give timely notice of the forgeries barred his recovery. The trial court entered summary judgment for Martin. We reverse.

Martin is a partner in a law firm in Lakeland. About May 1, 1978, Martin’s firm hired Carolyn Tozzer to do general legal secretarial work. Her duties included handling banking transactions for the firm and for Martin, individually. Martin maintained an individual password account at Florida Federal. In this type of account a secret password is required before a person is permitted to withdraw money from the account. Martin had introduced Tozzer to Florida Federal’s safe deposit personnel so that she could store and retrieve clients’ wills from the firm’s safe deposit boxes. In addition, Tozzer routinely handled other law firm business with Florida Federal. However, the parties dispute whether Toz-zer had obtained Martin’s password to his individual account, and if so, from whom, and whether Florida Federal had ever verified her authority to withdraw funds from Martin’s account.

Shortly after she was employed, Tozzer began signing Martin’s name to savings withdrawal slips on his individual account at Florida Federal. She would obtain cashiers checks payable to Martin, forge Martin’s endorsement and either cash or deposit the checks at another financial institution. Some rather involved banking transactions then ensued and, ultimately, Florida Federal received and paid the cheeks and charged them against Martin’s account. Florida Federal furnished Martin with monthly statements of his account; however, it did not furnish him the withdrawal slips and teller checks which Tozzer signed until he notified Florida Federal that he suspected a forgery. Martin contended that he sustained a loss of $11,200 before he discovered a forged check on October 18 which prompted him to make a detailed review of his account. Shortly thereafter he initiated this action against Florida Federal.

Martin and Florida Federal each moved for summary judgment. The court heard Florida Federal’s motion first and denied it. Subsequently, the court heard Martin’s motion. At the hearing it became apparent that Florida Federal had filed opposing affidavits together with a notice of filing three days before. While Florida Federal served a copy of the notice of filing on Martin, it failed to include copies of the affidavits. Thus, prior to the hearing Martin had not received copies of those affidavits. On this basis Martin objected to the court considering them. The court did not rule on the objection, but did have the affidavits read aloud. The affidavits were from two of Florida Federal’s tellers, Patricia Roe and Shirley Wheeler. Each stated that she recognized Tozzer as an employee of Martin’s law firm and had handled numerous banking transactions including check cashing, deposits and withdrawals on behalf of the law firm as well as in respect to Martin’s individual account with Florida Federal. Wheeler stated that to her knowledge the first time Tozzer requested her to cash a check for Martin, she telephoned Martin’s law office to verify that Tozzer was employed by the firm and had authority to make the particular withdrawal. Roe stated that when she first handled a transaction for Tozzer on Martin’s behalf, she checked the signature and determined that it compared favorably with Martin’s signature card. She also checked with another teller who verified Tozzer’s authority to act.

At the conclusion of the hearing, the trial judge reserved ruling and ordered the parties to submit legal memoranda within a week outlining their contentions. On November 10, the trial court granted summary judgment in favor of Martin holding that:

FLORIDA FEDERAL SAVINGS & LOAN ASSOCIATION failed to comply with its deposit agreement with Plaintiff, MICHAEL D. MARTIN; and that pursuant to the preclusionary rules set forth in Section 674.406 of the Florida Statutes that as a matter of law, the depositor is entitled to have his account reimbursed where the savings and loan association failed to comply with this deposit agreement and failed to return the items to examine; and the Court further finds that Defendant, FLORIDA FEDERAL SAVINGS & LOAN ASSOCIATION, failed to timely serve affidavits in accordance with Rule 1.510(c) of the Rules of Civil Procedure leaving uncontroverted the facts set forth in the pleadings and affidavits of Plaintiff, MICHAEL D. MARTIN, thereby leaving no genuine issue of any material fact from which reasonable inferences could be drawn to present a triable issue of fact ....

When the trial judge had the affidavits read aloud and did not grant Martin’s objection, it was reasonable for Florida Federal to assume that the court was going to consider the affidavits in ruling on Martin’s motion for summary judgment. Florida Rule of Civil Procedure 1.510(e) permits the court to allow affidavits to be supplemented, and under the circumstances, it would have been appropriate for the court to have received the affidavits and, if requested, to have granted a continuance to Martin. It is difficult to see how any prejudice would have resulted to Martin. The court, however, rejected the affidavits when it made its ruling a week later, and we hold the rejection was an abuse of discretion. We believe it was the court’s refusal to consider Florida Federal’s affidavits which led it to hold that there was “no genuine issue of any material fact from which reasonable inferences could be drawn to present a triable issue of fact .... ”

Section 673.406, Florida Statutes (1979) provides:

Any person who by his negligence substantially contributes to a material alteration of the instrument or to the making of an unauthorized signature is precluded from asserting the alteration or lack of authority against a holder in due course or against a drawee or other payor who pays the instrument in good faith and in accordance with the reasonable commercial standards of the drawee’s or payor’s business.

Since Holl v. Talcott, 191 So.2d 40 (Fla.1966), appellate courts have closely scrutinized whether a movant has satisfactorily met the burden of conclusively showing the absence of any genuine issue of material fact. The movant’s burden is particularly onerous when a question of negligence is involved. Wills v. Sears, Roebuck & Co., 351 So.2d 29 (Fla.1977).

We hold that the affidavits presented by Florida Federal, coupled with the inferences that could be drawn therefrom, were sufficient to create an issue of fact as to whether Martin was negligent and, if so, whether his negligence substantially contributed to the forgeries by Tozzer.

We agree, however, with the trial judge that Florida Federal could not avail itself of the defense it asserted under section 674.406(1), Florida Statutes (1979). That statute provides:

When a bank sends to its customer a statement of account accompanied by items paid in good faith in support of the debit entries or holds the statement and items pursuant to a request or instructions of its customer or otherwise in a reasonable manner makes the statement and items available to the customer, the customer must exercise reasonable care and promptness to examine the statement and items to discover his unauthorized signature or any alteration on an item and must notify the bank promptly after discovery thereof.

Florida Federal did not include the items paid in its statements of account sent to Martin. Further, it made no showing that it had held the items pursuant to any request by Martin or otherwise made the items available to him in a reasonable manner prior to his discovery of the forgeries. Florida Federal therefore cannot rely upon section 674.406 in defense of Martin’s claim.

Accordingly, we vacate the summary judgment and remand for further proceedings consistent with this opinion.

GRIMES and DANAHY, JJ., concur.


text:
    COMMERCIAL CARRIER CORPORATION, Appellant, v. Willard A. FOX, Sr., Appellee.
    No. TT-342.
    District Court of Appeal of Florida, First District.
    June 19, 1981.

      Wendell J. Kiser, of Akerman, Senterfitt & Eidson, Orlando, for appellant.
    Joseph L. Thury, of Antinori & Thury, P. A., Tampa, for appellee.
   SHIVERS, Judge.

Employer appeals a workers’ compensation order awarding claimant payment of medical treatment provided by his hometown physician whom the employer refused to authorize. We affirm the order.

Claimant, a Brooksville resident, suffered a compensable back injury which continues to cause severe pain. Although claimant repeatedly requested the employer to furnish him with medical treatment in the Brooksville area, the employer insisted on referring the claimant to physicians located in Tampa or Lakeland, each approximately 50 miles from Brooksville. The employer refused to authorize treatment by a local physician until approximately 11 months after claimant’s injury when the employer inexplicably authorized treatment by Dr. Escamilla of Brooksville, whose practice is limited to obstetrics and gynecology. At the hearing below, the sole issue before the deputy commissioner was whether the employer was required to pay the medical bills of a Brooksville physician, Dr. House, from whom claimant received both emergency and remedial treatment without authorization. The deputy commissioner found the employer refused to authorize medical treatment and that Dr. House’s treatment was reasonable and necessary, and awarded payment of his medical bills by the employer.

There is competent, substantial evidence in the record to affirm the finding that the employer refused to authorize medical treatment and that the employer carrier should be required to pay Dr. House’s medical bill. The deputy commissioner found there was competent orthopedic treatment available in the Brooksville area and reasonably concluded, based upon competent evidence, that the employer should not require the claimant, who has a painful back aggravated by riding long distances, to travel unnecessarily to Tampa or Lakeland to obtain treatment which could be furnished in Brooksville. Since claimant was suffering from a severe arthritic condition superimposed on his back condition and was in need of emergency care, he properly received treatment from Dr. House, a family practitioner in Brooksville, and the deputy commissioner was correct in awarding payment of Dr. House’s medical bills associated with the emergency treatment. Claimant testified that he sought the services of Dr. House “for the simple reason that he seemed like the only one I could get any help from or get any relief from the pain that I was having.” The deputy commissioner was also correct in awarding payment of Dr. House’s medical bills associated with his continued remedial treatment of the claimant which was approved or affirmed by Dr. Pfaff of Lakeland and by Dr. Rubio of Tampa, both employer designated physicians who either treated or examined and evaluated the claimant. The deputy described the employer’s conduct in furnishing medical treatment to the claimant as “manipulative” and we agree. Therefore, claimant is entitled to have the employer pay the bills of Dr. House up until such time as the employer specifically authorizes treatment by a qualified orthopedist in Brooksville as required by the deputy commissioner.

We reject the employer’s contention that the deputy commissioner erred in admitting into evidence additional medical reports which were not specified in the parties’ stipulation. The stipulation only served to indicate those medical reports which would be admitted into evidence without objection by the parties and could not serve as a basis to exclude the admission of other medical reports subject to a valid objection by either party. Besides, even assuming the admission of all reports could be called error, it is harmless error since the testimony of both Dr. House and the claimant furnish a sufficient basis for the appealed order.

Additionally, the employer contends the deputy commissioner erred in excusing the late filing of Dr. House’s medical reports and bills without a showing of good cause. We do not agree. Although the reports were untimely filed under Section 440.13(1), Florida Statutes (1977), since 29 days passed between claimant’s initial visit to Dr. House on December 14,1978, and the filing of the reports on January 9,1979, the deputy found the employer was on notice as of December 14, 1978, that Dr. House was commencing treatment of the claimant and continued to receive periodic reports from Dr. House and his bills which they have refused to pay. In light of this evidence, we cannot say that the deputy erred in finding good cause under the statute to excuse the late filing.

The remaining points are without merit. The testimony deemed “hearsay” by the employer does not materially affect the primary issue here since there is additional competent evidence upon which to sustain the order. Therefore, the deputy did not err in awarding claimant, who was injured on November 30, 1978, a reasonable attorney’s fee and reimbursement of costs.

Accordingly, we affirm the appealed order.

AFFIRMED.

McCORD and JOANOS, JJ., concur.


text:
    Clyde LUNFORD, Appellant, v. STATE of Florida, Appellee.
    No. AB-365.
    District Court of Appeal of Florida, First District.
    June 22, 1981.
    Clyde Lunford, pro se.
    Jim Smith, Atty. Gen., for appellee.
   PER CURIAM.

This is an appeal from summary denial of appellant’s motion for post-conviction relief. Appellant asserts that he was denied effective assistance of counsel, illegally sentenced to a lengthy prison term with probation under the guise of a split sentence, and sentenced in excess of the legal maximum for his conviction of attempted second-degree murder.

Two of the appellant’s points are without merit. There is ample documentation of assistance rendered by appellant’s counsel. Appellant argued that attempted second-degree murder should have been a third-degree felony. Second-degree murder is a first-degree felony, § 782.04(2), Florida Statutes (1979), and the attempt charge was correctly reduced to a second-degree felony under § 777.04(4)(b). The 10-year sentence was well within the 15-year maximum, § 775.082(3Xe), Florida Statutes. We affirm on both points.

Subsequent to the trial court’s denial of the appellant’s motion, the Florida Supreme Court issued its opinion in Villery v. Florida Parole and Probation Commission, 396 So.2d 1107 (Fla.1981). In Villery, the court held that:

[I]ncarceration, pursuant to the split sentence alternatives found in sections 948.-01(4) and 948.03(2), which equals or exceeds one year is invalid. This applies to incarceration as a condition of probation as well as to incarceration followed by a specified period of probation.. .. [T]his . decision applies retroactively, (e. s.)

Id. at 1111. In view of this language, the trial court’s order is reversed, and this cause is remanded for resentencing pursuant to the guidelines set forth in Villery, supra.

SHAW, WENTWORTH and THOMPSON, JJ., concur.